Controlling behaviour in family proceedings

The law’s treatment of controlling and coercive behaviour is – rightly – very much in the news at present. This is evident in recent court reports and amongst blogging lawyers and in family courts.

• Under the elusive title of “Is catfishing a crime?” Joshua Rozenberg wrote up an aspect of coercive behaviour on 3 January 2022. Rozenberg describes “catfishing” as “when a person creates a fake profile on social media in order to deceive and abuse someone else, either for money or to manipulate and control a victim”. But can the police prosecute, which is the question addressed by Rozenberg’s post.
• Under the heading “Bringing abuse into the open” Rozenberg wrote about the refusal by the Court of Appeal to allow for the former MP, Andrew Griffiths, to hide his crimes behind pleas of anonymity for his children (and therefore, he said, for him).
• In her Pink Tape blog post of 21 January 2022 Lucy Reed set about the subject of “Defining coercive or controlling behaviour” .

The purpose of this post is to look at controlling behaviour and the way the court deals with it in three contexts:

1. How have the judges defined it?
2. How should the courts deal with it?
3. Should any hearing of a domestic abuse application be public?

Controlling and coercive behaviour and Domestic Abuse Act 2021

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 defined by the Act and including that “behaviour” is abusive if it is “(c) controlling or coercive behaviour; … and it does not matter whether the behaviour consists of a single incident or a course of conduct”. “Behaviour” can be part of a variety of forms of abuse; and 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.”

Serious Crimes Act 2015 continues, at s 77(1), to give power to the Home Secretary to issue guidance about the investigation of controlling behaviour offences under s 76: see Controlling or Coercive Behaviour in an Intimate or Family Relationship Statutory Guidance Framework  (December 2015) (Home Office). 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 by a father in contact with children proceedings and made comments as to how allegations of such behaviour should be dealt with:

“[60] … 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, which includes a number of elements:

“… 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; [2021] 2 FLR 1116 (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 (at [29]) the court commended Hayden J’s approach to the subject in F v M. Coercive or controlling behaviour was “central to the modern definitions of domestic abuse is the concept of coercive and/or controlling behaviour”.

In the family courts “controlling… behaviour” is not defined. Hayden J had said 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 to provide a definition from Hayden J’s judgment which will assist family courts:

“[29] … 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 of Appeal considered how domestic abuse claims should proceed, especially where controlling behaviour might be in issue. 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 use of Scott Schedules (ie where the applicant lists the allegations she wishes to make, and the respondent sets out his replies to each pleaded allegation) as a way of managing the case. The court’s view of this was:

“[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.”

The court must concentrate on the wider context of the alleged behaviour. “Abusive, coercive and controlling behaviour is likely to have a cumulative impact upon its victims” (at [44]). This would not be identified just by consideration of individual incidents.

This last point is central to proving effectively a domestic abuse application (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” (at [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”.

Hearings of domestic abuse applications

Finally should a domestic abuse case be heard in open court; or at least should it be capable of publication? In Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 Keene LJ in a short judgment said:

“[120] On the topic of hearings taking place in public or private, I would endorse the need to scrutinise more closely than has happened in practice in the past whether a hearing in private can be justified. Of course, in many cases in the Family Division, especially those involving children, there can be no doubt that the hearing should take place in private, and this situation is reflected in the Family Proceedings Rules 1991″ [predecessor to Family Procedure Rules 2010 (FPR 2010)].

He went on to say – probably without hearing much argument on the point – that he thought that occupation orders (made in the context of domestic abuse case), especially where no children are involved, would be heard in open court.

What has happened in fact is that the FPR 2010 rule-makers have – without obvious regard for the common law and their statutory powers – simply asserted that all family proceedings hearings, including those for domestic abuse (now under Family Law Act 1996 Pt 4 and in children proceedings) shall be in private (FPR 2010 rr 10.5 and 27.11). The logic of this is hard to find. On the same facts the same respondent can be prosecuted in public in criminal courts (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591; and in tort for damages under Civil Procedure Rules 1998 (where privacy of proceedings is governed by r 39.2). It is most unlikely that it is truly the law that domestic abuse in family courts is lawfully a matter for a private hearing, save that children’s names should be anonymised.

Open justice and controlling and coercive behaviour hearings

The modern law on open justice and controlling behaviour can be found in Griffiths v Tickle & ors [2021] EWCA Civ 1882 (10 December 2021). This was an unsuccessful appeal of the husband/father (a former MP) against an order that the judgement of the circuit judge who had dealt with Mrs Griffiths’ defence of the father’s child arrangements order application defended by her on grounds of controlling and coercive behaviour be published. Only the child’s name should be anonymised, said the circuit judge. She had followed the clear guidance of Lord Steyn in the House of Lords in Re S [2004] (above) when seeking to balance rights under European Convention on Human Rights 1950, Arts 8 (privacy of an individual) and 10 (freedom of expression for the press).

The judgment was of the court: Dame Victoria Sharp P, King and Warby LJJ. They confirmed that in domestic abuse the starting point is the open justice principle (which cannot – surely? – be randomly overridden by the rules when it comes to domestic abuse. This was explained in clear terms (using Re S as its starting point):

“[35] The open justice principle and the related rights under Articles 6 and 10 are all subject to exceptions, but these are narrow and circumscribed and their application in an individual case requires strict justification. The category of exception that is relevant here is the need to protect private and family life rights, including in particular the rights of children. This was to the fore in Re S, where a mother was charged with the murder of one of her children. S, aged 5, was the brother of the deceased. The Guardian of S, concerned that reporting of the criminal trial would be seriously detrimental to S’s welfare, sought an order for the mother and both children to be anonymised in any such reporting. The application was ultimately refused by the High Court, and appeals were dismissed by this Court and the House of Lords.”

In support of their rejection of Mr Griffiths appeal, the court – Warby LJ is a well-known practitioner in the field of open justice – provided a master-class (at [27] to [40]) as to the main contours of recent developments in the common law on the open justice principle. The court concluded:

“[69] The Judge’s four Article 10 factors were all plainly relevant, and in our view she was entitled to place real weight on each of them. She was plainly correct to start with the open justice principle. It would have been wrong to proceed on the basis that the father’s public, political roles were enough in themselves to justify the disclosure of wrongdoing in his private life…. The Judge’s conclusion that the public interest called for correction of the false public statements the father had made in 2018 was clearly right, for the reasons she gave. She was right to conclude that there was a specific public interest in the publication of this particular judgment, showing the Family Court working effectively in this difficult context.”

FPR 2010 r 27.11 imposes blanket privacy to almost all family proceedings (save defended divorce) and r 10.5 (for non-molestation order proceedings: Family Law Act 1996 Pt 4). Griffiths v Tickle surely shows that such blanket rules – which are not backed by statute of common law – may be unlawful, and certainly can be overridden by court order. (Neither rule, incidentally, was considered by the Court of Appeal in its judgment in Griffiths; though perhaps the court had no need to do so.)

Featured image by Just dance via Shutterstock