Starting tomorrow, the Court of Appeal will consider four conjoined appeals where, it is said, the court’s approach to the handling of allegations of domestic abuse was wrong. There is significant interest in those appeals, and various journalists and reporters will be ‘attending’ – including George Julian (who will be live tweeting), and hopefully a tag team of other TP’ers. We expect that we too will live tweet, and will in due course publish some sort of write up. It is expected that the Court of Appeal will be invited to issue some guidance – but whether it will take that invitation and what it will say remains to be seen.
The last time there was a conjoined appeal (also 4 cases as it happens) on the topic of domestic abuse was the seminal case of Re L (L & Ors (children), Re [2000] EWCA Civ 194), now unbelievably over 20 years old – back in the olden times when we talked of domestic violence rather than domestic abuse (and the phrase ‘coercive and controlling behaviour’ (‘CCB’) was a mere twinkle in the eye). Much has changed and yet, many would say, much remains the same.
This judgment from Mr Justice Hayden, published at the back end of last week, traverses some of the issues we expect to be touched on later this week, and has something of the feeling of a warm up act : F v M [2021] EWFC 4. Hayden comprehensively sets out the framework for consideration of allegations of CCB before politely declining an invitation to issue guidance, no doubt mindful that there may be a rare opportunity for such guidance to be issued by his superior judges in coming days. And then he exits stage left to make room for the main act : the Lords and Lady Justices of Appeal.
Domestic abuse is not entertainment of course. It’s pretty grim stuff and it has a really serious impact on its victims, be they adult or child. It does matter that these cases are ‘done’ properly. There is a current and persistent worry that issues of domestic abuse (including but not limited to CCB) are not being properly handled by the family courts, and there is an understandably high degree of interest in the topic – many hold hope these appeals may change something that so far endless reviews and media reports have failed to change. So it’s really important these appeals are going to be (reasonably) accessible by the court making links available to those who apply in advance (we’ve received ours), although it’s a shame that the original plan to live stream the appeals has had to be abandoned (we assume because the whole thing is now being done remotely rather than in a courtroom due to the current covid situation). We’ll do our best to bring it to you in due course – it may be too much for many to sit through the full 3 day long performance, so we will try and bring you at the very least the nutshells version of how it all unfolds.
Anyway, back to Hayden J and F v M.
This is a case about coercive and controlling behaviour – something which is as insidious and damaging as it is tricky to escape and prove. The facts of the case are really disturbing. Even for someone used to reading pretty gruesome judgments and case papers it was really uncomfortable reading for me – a reminder that something does not need to be physically serious to have a profound impact on those who experience it. It would be wrong to pretend that the very serious level of controlling and manipulative behaviour (in respect of two consecutive – but very different – women) that is described in detail in this judgment is particularly commonplace – more often controlling and coercive behaviour will be less extreme in nature, and perhaps as a result, even harder to persuade a court that it has the requisite characteristics to support a finding of coercive and controlling behaviour (‘CCB’). But a reading of the judgment and the account of the things that the father did to the two women in question (and to their own families), should make very clear to anyone who was in doubt about it, why we should take CCB seriously. This man was able to completely take over the lives of the women he targeted, and to rob them of their freewill. In truth, this case could be equally well described as extreme psychological abuse.
Even though the facts may not be typical, the judgment is useful because it analyses the features of CCB, which of course will be helpful in other cases.
Hayden J tells us that
“it is crucial to emphasise that key to this particular form of domestic abuse is an appreciation that it requires 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.”
Drawing on Home Office guidance and an earlier judgment of his he identifies a list of ‘paradigm behaviours’ :
- 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 without consent
- Limiting access to family, friends and finances
He goes on to consider the various definitions of CCB, firstly in family proceedings (PD12J) :
‘Coercive and controlling behaviour’ is defined in the Family Procedure Rules 2010 PD12J:
“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;”
For completeness, domestic abuse is defined more broadly:
“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”.
He considers the criminal law (s76 Serious Crime Act 2015), which creates an offence of coercive and controlling behaviour in an intimate relationship, and tells us this is informative in the family context :
The criminal legislation emphasises the repeated and/or continuous nature of this abuse. It highlights the serious alarm or distress caused by it, as well as the significant impact on the complainant’s daily life, or to use the precise words of the statute its “adverse effect on B’s usual day to day activities”.
He reaches the conclusion that the FPR definition is useful when broken down like this :
Coercive Behaviour:
i. a pattern of acts;
ii. such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises;
iii. the objective of these acts is to harm, punish or frighten the victim.
Controlling Behaviour:
i. a pattern of acts;
ii. designed to make a person subordinate and/or dependent;
iii. achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their everyday activities.i. The condition of knowledge of the impact on the part of the perpetrator;
ii. A continued series of transactions (there cannot, in this definition, be a single incident of coercive and controlling behaviour) and;
iii. the consequence of a substantial adverse effect on the complainant (be it via fear of applied violence or otherwise).
So, there has to be a pattern of acts which has the purpose of harming, frightening or punishing the victim or of making her/him subordinate or dependent. And the perpetrator must know what s/he is doing.
One of the very concerning features of this case was that the womens’ families recognised early on what was happening and tried to help the women leave, or to seek help – but professionals either failed to appreciate what was really going on, diverted by the manipulative father’s own allegations, or too credulous when F suggested he was himself the victim of the mother’s own parents abusive behaviour to probe and reveal the real risk he posed. (When the mother fled to her parents for some space to think about the relationship, he had reported them as holding her hostage and suggested that she was at risk of honour based violence).
For the above reasons and as this case has revealed, it is often difficult for professionals to identify this type of abuse and to be most effective in their investigations. F has repeatedly cast himself as a victim and been accepted as such by the police, in particular, but also by others e.g. neighbours. MGM and MGF were both crudely caricatured as “honour-based killers”. There was not a scintilla of evidence to support this, but it strikes me as having become tacitly accepted, merely because the accusation was repeated and documented. I am also concerned that the lack of challenge may lie in the fact that the grandparents are Hindu and have brown skin. I am left with the impression that an overly anxious cultural sensitivity inhibited more robust forensic enquiry. In simple terms the allegation would have gained no traction at all if a white couple had taken their daughter to a clinic for advice on her pregnancy. The visit to the pregnancy advisory clinic was the sole basis for the spurious allegation that M’s parents were “honour-based killers”. This ought to have been identified and the allegation discounted. That in turn might well have generated a more sceptical assessment of F.
There are undoubtedly some lessons for police and other child protection agencies here.
As for lessons, in a brief Post Script, Hayden J tells us that counsel have invited him to make comment on the use of Scott Schedules (i.e. a table identifying the allegations and the evidence relied on in support) in cases involving allegations of CCB. Although he clearly doesn’t want to steal the thunder of the Court of Appeal here he says this :
Having given the matter considerable thought I have come to the clear conclusion that it would not be appropriate to give prescriptive guidance. Whilst I entirely see the advantage of carefully marshalling the evidence and honing down the allegations, I can also see that what I have referred to as a particularly insidious type of abuse, may not easily be captured by the more formulaic discipline of a Scott Schedule. As I have commented above, what is really being examined in domestic abuse of this kind is a pattern of behaviour, possibly over many years, in which particular incidents may carry significance which may sometimes be obvious to an observer but to which the victim has become inured. It seems to me that what is important is that the type of abuse being alleged is made clear to the individual who is said to be the perpetrator.
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 was the issue 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). It is, I hope, clear from my analysis of the evidence in this case, that I consider Scott Schedules to have such severe limitations in this particular sphere as to render them both ineffective and frequently unsuitable. I would go further, and question whether they are a useful tool more generally in factual disputes in Family Law cases. The subtleties of human behaviour are not easily receptive to the confinement and constraint of a Schedule. I draw back from going further because Scott Schedules are commonly utilised and have been given much judicial endorsement. I do not discount the possibility that there will be cases when they have real forensic utility. Whether a Scott Schedule is appropriate will be a matter for the judge and the advocates in each case unless, of course, the Court of Appeal signals a change of approach.
Being less facetious, Hayden J is right to defer to the Court of Appeal on a topic of such importance. His own skepticism about the appropriateness of such schedules in CCB cases is writ clear, but there is a lot of caselaw that ties the hands of Family Court judges, even of High Court Judges on this issue – if it’s going to change it has to be changed by the Court of Appeal. And in truth, there doesn’t seem to be much evidence that in this case the schedules had actually caused any particular difficulty – there is barely a mention of them in the judgment, except where the judge indicates he didn’t want to be drawn into an overly formulaic approach, preferring instead to evaluate all the evidence in the round before drawing conclusions.
Although the orthodox approach of requiring allegations of domestic abuse to be pleaded through a Scott Schedule is well established, Hayden’s hints about the limited utility and potential downsides of Scott Schedules are not exactly heretical. There are a number of earlier judicial hints that individual judges do not find them terribly useful, and practitioners often complain that the limiting of allegations to six or ten for reasons of case management or convenience is artificial and that it can lead to injustice. And the Harm report published in the autumn of last year identified the issue as follows :
reducing a long and complicated history of abuse into neat and discrete descriptions is challenging and can itself result in minimisation of the abuse.
We shall see what happens later in the week. In the meantime, much food for thought…
For those who are interested, here was my initial ‘take’ on the case on twitter based on my experience in such cases. I sometimes wonder if our approach to Scott Schedules is merely a symptom of a deeper malaise. I also wonder whether the system has yet fully appreciated the implications of the 3 pronged definition of CCB – there is a lot of focus in many cases on actions, patterns and impact but very little on the intent of the perpetrator. Whilst it was obvious in this case where the acts themselves were brazenly outside the bounds of normal behaviour and the intention sometimes explicit, it is more often far harder to get a handle on what is going on in the mind of the alleged perpetrator in the context of small and subtle acts of alleged control.
Feature pic : Another nail for the coffin by Anthony Clark on Flickr (creative commons – thanks!)
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