This is a post from Sophie Smith-Holland, who tweets as @SSmithHolland. With thanks to Alice Twaite.

The question of how the Family Court deals with domestic abuse has had a huge amount of public and media attention recently. Concerns have been raised that the system is placing children and victims at unacceptable risk and that there is a ‘culture of contact at all costs’. The concerns have been raised by campaigners including survivors and MPs who have described a disconnect between the Practice Directions and best practice guidelines and what actually happens in practice at courts around the country. A government led review and ‘call for evidence‘ (limited to ‘private’ law cases) is currently underway. 

A ‘snapshot’ look at recent published judgments featuring domestic abuse seemed timely, looking at the decisions made and how they were reached. (Since we are looking at published judgments, the majority of the cases are care proceedings rather than ‘private law’ disputes between parents, which are less often published). Earlier blogs in the ‘snapshot’ series can be read here,  here, here and here.

SD v AFH (Appeal: Coercive and controlling behaviour: Inference or speculation) [2019] EWHC 1513 (Fam) (13 June 2019)

In this case the father sought permission to appeal against the following findings made against him in the court below, in the context of child arrangements order applications:

i) The father demonstrated controlling and coercive behaviour prior to the end of June agreement.

ii) The father continued to demonstrate controlling and coercive behaviour, in far more significant ways, up to and including an assault on the mother (pushing her to the ground) on 14 September 2018.

iii) The father’s behaviour served to undermine the mother; it served to undermine her ability to care for the child and it directly involved O (and indeed his half-brother) to their direct emotional detriment in high level confrontation. That is inexcusable.

It is helpfully noted in the appeal judgment that, in compliance with PD12J, the Judge in the lower court determined that a fact-finding hearing would be required before the court could determine child arrangements. The Judge noted that there were three central issues regarding whether the father had perpetrated coercive and/or controlling behaviour of the mother on two specific occasions and during the time in between, and whether the father had been violent to the mother on a further occasion.

It is noted by the appeal court that:

“Those would appear to be appropriate and well focused allegations of facts, which were plainly relevant to the determination of the nature of the relationship that it would be appropriate for the child to have with the father. If the agreement was truly consensual and reached as a result of the parents free will, that would be a weighty factor for the court to consider in determining where the child’s best interests lay. Not because an agreement or a contract is binding but because competent parents are generally best placed to determine what is in their children’s interests. However if the agreement was reached as a result of pressure or coercion being exerted by one parent upon the other the agreement would be of little if any value to the court in determining what was in the child’s best interests. Secondly, the existence of coercive or controlling behaviour would not only inform the court as to whether to place any weight on the agreement but would also inform the court as to the impact on the alleged victim and the child of future child arrangements and whether spending time with arrangements were appropriate and if so how they would need to be formulated in order to ensure that the alleged victim and child were not exposed to the emotional abuse that might accompany further coercion or control. In relation to allegations of violence, it hardly needs to be reiterated the potential impact of violence upon the victim and the child. The wisdom contained within the report of Doctors Sturge and Glaser prepared for Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2000] 2 FLR 334 remains as valid now as it ever was. Furthermore, it has been endorsed by the courts on many occasions and is reflected within the scheme contained within FPR PD12J.”

The appeal court also helpfully summarised the directions made by the lower court in relation to a fact-finding hearing listed for 2 days and also a non-molestation order application to be determined at the same time, saying:

“An order was made for disclosure of material from the Gloucestershire police together with detailed case management directions for the provision of other evidence. [The Judge] rightly addressed the issue of how questions would be put to the mother, the father being a litigant in person. He provided for a list of cross examination questions to be provided by the father. He noted that consideration would be given to special measures.

And the following is said in relation to how the hearing was conducted:

“[The Judge] heard oral evidence from the mother. He put questions to her which had been drafted by the father. The father also gave oral evidence and it seems was asked questions (I assume quasi-in-chief) by the judge and was then cross-examined by counsel for the mother. The evidence was given over 2 days totalling some 5.5 hours.

Ultimately the appeal was dismissed, and much of the judgment focuses on the strengths and weaknesses in the father’s appeal arguments. One point seems of particular relevance to this post.

One of the father’s grounds of appeal was: findings were made contrary to the literal definition of the terms.It transpired that the father was relying on the definition of coercion and control in the Oxford English Dictionary. It was argued by mother’s counsel that the Judge was plainly referring to the definitions in PD12J, namely:

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.

The Judge said: 

The dividing line between behaviour which can properly be characterised as coercive or controlling and within PD12J and behaviour which does not cross that threshold is not a bright line. The PD12J definition by its own terms makes clear that to amount to coercive or controlling behaviour the behaviour will be well outside that which is acceptable within a relationship. The evidence in this case plainly demonstrated that the father’s behaviour was outside those fairly broad parameters of acceptable relationship based behaviour. In respect of the behaviour surrounding the reaching of the agreement in June it may have been towards the lower end of the spectrum of behaviour within PD12J but within it, it plainly was. By September it had progressed along the spectrum. There is no merit in the father’s contention that his behaviour could not properly be characterised as controlling or coercive behaviour within the statutory definition.

Comment

The judgment concerning the refusal of permission to appeal findings of coercive control illustrates effective and appropriate application of PD12J by the Family Court following the 25th September 2018 incident (when the mother was pushed to the ground with the children present), by which time it was clear that a fact finding hearing was required.

The Judge at first instance:

  1. applied the correct, statutory, definitions of coercive behaviour and controlling behaviour
  2. identified that a finding of fact hearing was needed before a child arrangements order could be made
  3. took the proportionate approach of identifying three core issues likely to be relevant in deciding whether to make a child arrangements order and if so in what terms
  4. gave directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly (including hearing the non-molestation order application at the same time)
  5. made appropriate arrangements for the hearing so that the alleged victim could participate
  6. directed that the father identified what questions he wished to ask the mother
  7. conducted the questioning of the mother on behalf of the father; and
  8. determined that, in light of the domestic abuse found to have taken place, a psychological assessment of the father was needed.  

What is also clear is that until the September incident, the cross-applications for child arrangement orders were proceeding on the basis that an agreed contact order was appropriate if it could be achieved, without a need for findings of fact (paras 11 and 12). The new incident seems to have triggered a clarity that fact finding was required, and ultimately findings of coercive and controlling behaviour were made out in respect of behaviours well before that trigger incident, including in the circumstances of the purported ‘agreement’ between the parties outside of the court arena on the children’s future arrangements – behaviour that had previously not been seen as the sort of potentially abusive behaviour that required findings. As such the court of appeal judgment is perhaps illustrative also of something of the complexity of the task for judges and professionals of applying PD12J in practice. We know (from the judgment) that the mother had the services of a solicitor to some degree in the lead up to issue of proceedings and after proceedings began. The judgment also gives the impression she was genuinely in favour of the child (and step-child) spending time with the father, though at some point it became clear she felt coerced into agreeing the arrangements for the children ahead of issue of court proceedings. We don’t know her instructions or her advocate’s advice at the earlier hearings where agreement without fact finding was under contemplation. Were findings of coercive control sought with the court specifically rejecting that approach? Was the possibility of requesting findings canvassed with the mother? The published judgment from the appeal court provokes such questions, about the original proceedings, which pertain not just to the review question of how PD12J is working, but also to a more subtle area of it’s enquiry, namely ‘the level of encouragement victims are given to raise concerns‘. Perhaps also to appropriate training around recognising and defining coercive control, with potential relevance for another subtly worded area of the review, ‘to look to better understand the different types of coercive control”.

The insights of Williams J about the nuanced task for judges of distinguishing between coercive or controlling behaviour falling at the lower end of a spectrum from that, just about within the boundaries of acceptable behaviour in relationships, seem important. As is his clarity that the earlier behaviours here did firmly meet the criteria for coercive control as defined in PD12J. Plainly also the task of distinguishing so as to decide whether to hold a fact finding hearing, will be all the more challenging without the benefit of hindsight and the sort of patterns, dynamics, and demeanours that may only emerge within the more detailed forensic fact finding process itself.  Not to mention the impact well recognised structural problems for the family courts relating to time, workload, delay and lack of legal representation for many litigants potentially have on that decision making process. 

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Image courtesy of Stephanie Le Point at Flickr – Thanks