Although immediately recognisable to those who have fallen victim to it by their partners or family members, coercive control is a relatively new concept to family law, having only been introduced as a form of domestic abuse in October 2017. Courts are grappling with an increasing number of cases in which coercive and controlling behaviour is alleged. However the current approach is inconsistent, with different judges dealing with the issue in very different ways. Further work is required to ensure the development of a consistent and effective approach which is also sensitive to the survivors of abuse.
For the purposes of family court proceedings, Practice Direction 12J of the Family Procedure Rules adopts the following definitions:
- “domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;
- “coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;
- “controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Traditionally in legal proceedings where the family court is asked to determine children’s living arrangements, including time spent with each parent, the court will often require allegations of domestic abuse to be listed in what are known as “Scott schedules”. The parent making the allegations of domestic abuse will outline the nature of each allegation. The other parent is then allowed to provide a response to each of the allegations. The court will then go on to hear evidence in order to ascertain whether, on the balance of probabilities, each allegation has been proven.
However, this approach of analysing each allegation on a standalone basis does not sit particularly well with the general understanding of controlling and coercive behaviour, in which individual incidents may not appear significant to an outsider, but the pattern of behaviour over a period of time reveals the true impact of the abuse and the intention of the perpetrator.
The limitations of this traditional approach were examined by Mr Justice Hayden in the recent High Court case of F v M (2021). In his judgment, Judge Hayden explained his understanding of the pattern of the father’s behaviour over a course of several years, and the impact it had had on the mother. Examples of seemingly benign behaviour, for example moving house a large number of times, were used to paint a picture of the isolation of the mother, and the vulnerable position she was put into by the father. This led Judge Hayden to describe the father in the case as a “profoundly dangerous young man, dangerous to women who he identifies as vulnerable and dangerous to children”.
Crucial to the judge’s analysis was an appreciation that the allegations should be reviewed in their wider context. In particular, the judge stated: “Key to assessing abuse in the context of coercive control is recognising that the significance of individual acts may only be understood properly within the context of wider behaviour. I emphasise it is the behaviour and not simply the repetition of individual acts which reveals the real objectives of the perpetrator and thus the true nature of the abuse.”
It is hoped that other members of the judiciary will follow suit and adopt a similar approach in future cases. A formulaic approach whereby the court directs the parties to complete a Scott Schedule, with the judge simply reviewing each listed allegation separately, may allow cases of controlling and coercive behaviour to slip through the net.
Over time, it is anticipated that the approach to be taken in cases involving coercive and controlling behaviour will be shaped and influenced by further guidance from the senior courts, as our understanding of this type of abuse develops. In the meantime, until clear procedure for this type of case is identified, it will be the role of the professionals involved to encourage the court to manage the proceedings in an appropriate way. Accordingly, ensuring you have the advice of a knowledgeable and experienced family lawyer is crucial.
If you are affected by issues of controlling and coercive behaviour or domestic abuse more generally, we are well-equipped to assist you. Here at Silk, all of our lawyers are family law specialists and experts in our field.
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