F v M [2021] EWFC 4 (Fam): Identifying controlling and coercive behaviour in the Family Court

This case concerned an application made by the father for contact with his two children aged 3 and 6 years old. The mother made allegations of domestic abuse against the father, including that he had alienated her from friends and family, controlled her money and food and gradually reduced her communication with the outside world. Against a very difficult procedural background, a fact finding hearing took place before Mr Justice Hayden, who produced an extremely detailed judgment which is worthwhile reading in full.

Evidence was also admitted into the proceedings relating to the father’s subsequent partner, who was still in a relationship with him but whose parents and ex-husband had given evidence regarding the extent of the father’s controlling behaviour towards her. Mr Justice Hayden commented that the consideration of both relationships together highlighted the ‘sinister, domineering and, frequently, tyrannising complexion of [the father’s] behaviour’.

At the conclusion of the fact finding hearing, Mr Justice Hayden found that the nature of the allegations made by the mother constituted a pattern of ‘coercive and controlling behaviour’ by the father. He concluded that the mother had been ‘subjected to a brutalising, dehumanising regime, by [the father] which subjugated her and was profoundly corrosive of her autonomy.’

Mr Justice Hayden noted that, although there is no legal definition of coercive and controlling behaviour within the Family Court, he thought ‘the term is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats.’

Mr Justice Hayden went on to explain that controlling behaviour involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. In order to understand this form of abuse, there must be an evaluation of a pattern of behaviour ‘in which the significance of isolated incidents can only truly be understood in the context of a much wider picture’.

Mr Justice Hayden emphasised the following features of coercive and controlling behaviour, as contained within the statutory guidance published by the Home Office pursuant to Section 77(1) of the Serious Crime Act 2015:

• Isolating a person from their friends and family
• Depriving them of their basic needs
• Monitoring their time
• Monitoring a person via online communication tools or using spyware
• Taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep
• Depriving them access to support services, such as specialist support or medical services
• Repeatedly putting them down such as telling them they are worthless
• Enforcing rules and activity which humiliate, degrade or dehumanise the victim
• Forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities
• Financial abuse including control of finances, such as only allowing a person a punitive allowance
• Control ability to go to school or place of study
• Taking wages, benefits or allowances
• Threats to hurt or kill
• Threats to harm a child
• Threats to reveal or publish private information (e.g. threatening to ‘out’ someone)
• Threats to hurt or physically harming a family pet
• Assault
• Criminal damage (such as destruction of household goods)
• Preventing a person from having access to transport or from working
• Preventing a person from being able to attend school, college or University
• Family ‘dishonour’
• Reputational damage
• Disclosure of sexual orientation
• Disclosure of HIV status or other medical condition

He also emphasised that this list is not exhaustive and that an incident which ‘might, in isolation, appear innocuous or insignificant may in the context of a wider evidential picture be more accurately understood’.

Mr Justice Hayden noted that it is often difficult for professionals to identify coercive and controlling behaviour, and effectively investigate. In this case, the father had repeatedly cast himself as a victim and been accepted as such by the police and neighbours. He said that there was ‘an abundance of evidence’ pointing towards the father’s unreliability as a witness which had not been harvested by the police.

He also commented that busy professionals investigating individual incidents may not necessarily be well placed to scrutinise incidents in the context of wider and more general behaviour. However, there will frequently be clues, hints, indicators and triggers within reports, and that broader professional education on the scope and ambit of coercive and controlling behaviour is likely to ‘generate greater alertness to abuse of this kind which too frequently lies buried or only superficially investigated.’

Mr Justice Hayden also commented on the use of Scott Schedules – the table that is used to identify the allegations being made before a fact findings and the evidence relied upon in support – in cases involving coercive and controlling behaviour. Whilst Mr Justice Hayden did not give prescriptive guidance, he did comment that this type of abuse may not be easily captured by the more formulaic discipline of a Scott Schedule. He said that ‘an intense focus on particular and specified incidents may be a counterproductive exercise. It carries the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour’, this issue having already been highlighted in the final report of the expert panel to the Ministry of Justice: ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ (June 2020).

Going even further, Mr Justice Hayden considered Scott Schedules to have ‘such severe limitations in this particular sphere as to render them both ineffective and frequently unsuitable’, questioning whether they are a useful tool more generally in factual disputes in Family Law cases. He said that whether a Scott Schedule is appropriate will be a matter for the judge and advocates in each case, and it will be very interesting to see whether a change of approach towards Scott Schedules is seen within the Family Court in the near future.

Victoria Brown is a Senior Associate Solicitor in the Family team, who practices in all areas of private family law, including divorce, dissolution, financial and children arrangements. If you would like to discuss these issues please contact her at vgb@anthonygold.co.uk or on 020 7940 4060