Coercive behaviour: Family and Queen’s Bench Division proceedings – Part 1
In the first of two linked posts, David Burrows compares the procedural approaches of different courts to allegations of coercive and controlling behaviour and other forms of domestic abuse and the possible misuse of defamation proceedings to perpetuate such abuse.… Continue reading
Proof of controlling and coercive behaviour: a private SLAPP case?
It is impossible to say what is the most remarkable feature of my near 50-year practising career; but my brief featuring in the life (one week: see eg Domestic abuse and defamation) of the near SLAPP (strategic lawsuit against public [or private, even] participation) case of Vanessa Brown (orse @VanessaBrownCan) must be up with all that. No, I’ll not burden this post with more on the ins and outs of my career. But in Lee v Brown (VB and RL) I discovered that at least one man was using the defamation jurisdiction of the Queen’s Bench Division to try to take damages off an insolvent former partner in a case estimated by a High Court Master at approaching 12 days of the time of a High Court judge. The couple had already occupied the family court at deputy district judge level for two and a half days.
The issue in the family court was of a variety of domestic abuse. On VB’s case this was of considerable severity: a variety of non-consensual sex, other abuse and controlling and coercive behaviour. Some might say the ‘SLAPP claim’ was, itself, an aspect of controlling and coercive behaviour certainly as it was conducted by RL. (My personal experience of him over seven days showed a man whose speed to hang up the telephone rather than co-operate to get the trial ready was an attempt to control me; and to tell me I was ‘fucking mental’ a couple of days before trial gave an indication, perhaps, of his character.)
The family court deputy district judge was not told the law: VB was in person and RL’s barrister was an ‘ancillary relief’ specialist who in July 2022 cited case law only up to 2014. It looks as though she failed properly to help the court. That aspect of VB’s claim is subject to appeal within the family courts.
Parallel family and QB proceedings
What follows must be seen in the context of the following:
• In Lee v Brown both parties were ‘in person’: in family courts procedures and protection for the alleged victims are being developed (as will be explained in Part 2), and they are already better developed still in criminal courts;
• QBD proceedings are in public as a rule; family proceedings are not: same facts, quite different venue. Why?
• Was it really wise of Parliament to narrow the definition of ‘domestic abuse’ to s 1 (below); or does experience of Lee v Brown show it should have been wider? And:
• Depp v News Group Newspapers Ltd [2020] EWHC 2911 (QB) (2 November 2020, Nicol J). How fashionable has a defamation claim become as a gagging device – a further element of controlling and coercive behaviour? – amongst alleged domestic abusers with cash to burn on expensive defamation lawyers?
I make it a rule never to comment on my own cases. I do so here only to illustrate what may be a live family law subject; and one which crosses over from family proceedings to QB proceedings (ie different law; different rules; but often the same facts to which that different law must be applied). After the overview which follows, the above four factors will be dealt with in Part 2
Law and the finding of fact: controlling and coercive behaviour
So what is the law on domestic abuse? In any litigation, civil or criminal, the object of the applicant (or prosecution) is to obtain an order from the court (or a conviction) based on the evidence relevant to the charge or claim. The court must consider all relevant facts and make findings on those facts which are in issue between the parties. It must apply the law to the facts as found or as agreed and come to a decision as to whether the facts justify the order sought by the applicant/claimant.
In the family court and, under different rules in QBD, parties procedurally are required to set out (‘plead’) proof of domestic abuse in an individual case; and in particular how controlling and coercive behaviour (‘controlling behaviour’) impacts on a case. But what does such behaviour mean as a legal concept? And how is that meaning translated into practical and procedural outcomes in court?
Under Domestic Abuse Act 2021, s 1(3) (not yet fully in force) controlling behaviour is included together with a variety of other domestic abuse intended under the Act:
“(3) Behaviour is “abusive” if it consists of any of the following—
(a)physical or sexual abuse;
(b)violent or threatening behaviour;
(c)controlling or coercive behaviour;
(d)economic abuse (see subsection (4));
(e)psychological, emotional or other abuse;
and it does not matter whether the behaviour consists of a single incident or a course of conduct.”
‘Behaviour’: a course of conduct where parties are personally connected
As the final sentence of s 1(3) asserts, ‘behaviour’ can be part of a variety of forms of abuse. Controlling or coercive behaviour, for example, is not intended to be singled out for particular procedural treatment. Its definition by statute is affirmed by importing the definition from Serious Crimes Act 2015, s 76, where ‘Controlling or coercive behaviour in an intimate or family relationship’ as a criminal offence is defined – as relevant here – as:
“(1) A person (A) commits an offence if—
(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b) at the time of the behaviour, A and B are personally connected,
(c) the behaviour has a serious effect on B, and
(d) A knows or ought to know that the behaviour will have a serious effect on B.
(2) A and B are “personally connected” if—
(a) A is in an intimate personal relationship with B, or
(b) A and B live together and—
(i) they are members of the same family, or
(ii) they have previously been in an intimate personal relationship with each other….
(4) A’s behaviour has a “serious effect” on B if—
(a) it causes B to fear, on at least two occasions, that violence will be used against B, or
(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities…”
In the context of family proceedings, Domestic Abuse Act 2021, s 68(4) has amended the definition of ‘personally connected’:
“(6)A and B are “personally connected” if any of the following applies—
(a)they are, or have been, married to each other;
(b)they are, or have been, civil partners of each other;
(c)they have agreed to marry one another (whether or not the agreement has been terminated);
(d)they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
(e)they are, or have been, in an intimate personal relationship with each other;
(f)they each have, or there has been a time when they each have had, a parental relationship in relation to the same child…;
(g)they are relatives.”
Serious Crimes Act 2015, s 77(1)) gives power to the Home Secretary to issue guidance about the investigation of controlling behaviour offences under s 76. This has now been issued by Controlling or Coercive Behaviour in an Intimate or Family Relationship Statutory Guidance Framework December 2015 (Home Office). And this relationship of the 2015 Act brings this article back to family law; for this guidance was considered in two important cases early in 2021.
Case law on controlling behaviour
In F v M [2021] EWFC 4 (15 January 2021), Hayden J considered a serious course of controlling behaviour and made comments as to how allegations of such behaviour should be dealt with. In dealing with that case, he commented on domestic abuse in the context of another case involving a vulnerable adult. In A County Council v LW [2020] EWCOP 50; [2020] 4 WLR 164 at [60] he had stressed that vigilance was essential and went on to say:
“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….”
Hayden J referred to the list in the Guidance. This is attached to its para 12 and includes a number of elements:
“The perpetrator may limit space for action and exhibit a story of ownership and entitlement over the victim [so many such documents identify a claimant as a ‘victim’, were the complaint is not yet proved]. Such behaviours might include: isolating a person from their friends and family; monitoring their time; 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; 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; threats to hurt or kill; threats to a child; threats to reveal or publish private information (e.g. threatening to ‘out’ someone); assault.”
A few weeks later, in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448; [2022] 1 WLR 2681 (30 March 2021) the Court of Appeal (judgment of the court: Sir Andrew McFarlane P, King and Holroyde LJJ) considered four appeals (of which they allowed all but one). How should the courts deal procedurally with allegations of coercive control? Early in the judgement the court commended Hayden J’s approach to the subject. Coercive or controlling behaviour, and as ‘central to the modern definitions of domestic abuse is the concept of coercive and/or controlling behaviour’ (at [29]). The Court of Appeal continued:
“[29] … It is helpful to set out one of the central paragraphs from Hayden J’s judgment here: ‘[4] In November 2017, M [the mother] applied for and was granted a non-molestation order against F [the father]. That order has been renewed and remains effective. The nature of the allegations included in support of the application can succinctly and accurately be summarised as involving complaints of ‘coercive and controlling behaviour’ on F’s part…”
In the family courts ‘controlling… behaviour’ is not defined, said the court. They said at that no definition was needed. ‘The term is unambiguous and needs no embellishment’. Despite these comments and the consideration of the term in the Guidance, the court then went on (still at [29]) to provide a definition which will assist family courts:
“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…. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation…. My strong impression, having heard the disturbing evidence in this case, is that it requires greater awareness and, I strongly suspect, more focused training for the relevant professionals.”
Proof of controlling behaviour: pleading a case
The court considered how domestic abuse claims should proceed, especially where controlling behaviour might be in issue:
“[41] For any part of the legal process to function fairly and efficiently, there is a need for material that is to be placed before a court to be organised and structured so that all involved in the court process may understand its significance. … In terms of a civil action, ‘pleadings’, are seen as essential both in terms of allowing a party against whom a case is being brought to understand what is being said against them, and, secondly, on grounds of basic efficiency.”
But how to plead abuse allegations in the Family Court? The court referred [at 42] to the requirement in the Family Procedure Rules 2010 practice direction, PD12J (which deals with domestic abuse allegations in children proceedings). At para 19(c) the court must consider:
“… whether the key facts in dispute can be contained in a schedule or a table (known as a Scott Schedule) which sets out what the applicant complains of or alleges, what the respondent says in relation to each individual allegations or complaint; the allegations in the schedule should be focussed on the factual issues to be tried; …”
In H-N the court went on to discount Scott Schedules as a way of managing the case:
“[43] One striking feature of the dozen oral submissions heard during the hearing of these appeals was that there was effective unanimity that the value of Scott Schedules in domestic abuse cases had declined to the extent that, in the view of some, they were now a potential barrier to fairness and good process, rather than an aid.”
‘Cumulative impact’ of the behaviour
In reality the court must concentrate on the wider context of the alleged behaviour. Had there ‘been a pattern of coercive and controlling behaviour’?
“[44] … Abusive, coercive and controlling behaviour is likely to have a cumulative impact upon its victims which would not be identified simply by separate and isolated consideration of individual incidents.”
This last point is central to proving effectively a domestic abuse applications (thinking back also to Domestic Abuse Act 2021, s 1(3)). Focus on just central scheduled elements cannot do justice to a case. The case a respondent has to meet must be clearly spelled out, but summary of an applicant’s case must not ‘so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be’ ([46]). The court’s conclusion on Scott Schedules was therefore: ‘[49] The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules’.
The last word on Scott Schedules can be given to a ‘postscript’ from Hayden J to F v M:
“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.”
So watch this space for:
• The dizzying variety of ways in which the law treats alleged victims who are required to be cross-examined by their alleged abuser in the variety of jurisdictions in which the issue of domestic abuse may arise.
• Open justice or private hearing for domestic abuse? And why are crime, QBD (civil) and family courts different – if they are? – where mostly the common law is the same.
• Towards a wider ranging and more realistic definition of ‘domestic abuse’ after Lee v Brown.
Featured image: photo by Marcos Mesa Sam Wordley via Shutterstock