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14 June 2021

A Call for Change in Domestic Abuse and Children Act Proceedings

The recent Court of Appeal decision of Re H-N and others (children) [2021] EWCA Civ 448 (“Re H-N”) has called for a change in the way allegations of domestic abuse are dealt with during court proceedings: how evidence of such allegations is handled, presented, and analysed.

In Re H-N the focus was specifically on controlling and coercive behaviour which until recently has been an almost hidden area of painful abuse which can have far reaching emotional, psychological, financial, and physical consequences.

So, what is controlling and coercive behaviour?

Controlling behaviour is an act or a pattern of acts designed to make a person subordinate and/or dependent by:

  • isolating them from support
  • exploiting their resources and capacities for personal gain
  • depriving them of their means of independence, resistance, and escape
  • regulating their everyday activities

Coercive behaviour is an act or a pattern of acts which harm, punish, or frighten such as:

  • assault
  • threats
  • humiliation
  • intimidation
  • Other abuse used to harm, punish, or frighten

This type of behaviour by definition is wide-ranging and can vary significantly from case to case which makes identifying victims of controlling and coercive behaviour complicated and very fact specific. 

The court in Re H-N deferred to Hayden J’s recent judgement in F v M [2021] EWFC 4 (Fam) regarding his definition and scope of controlling and coercive behaviour:

In the Family Court, that expression is given no legal definition. In my judgement, it requires none. 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. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. 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.”

Re H-N is an important decision, bringing controlling and coercive behaviour once more to the forefront, and highlighting a need for “the court to focus on the wider context of whether there has been a pattern of coercive and controlling behaviour, as opposed to a list of specific factual incidents that are tied to a particular date and time.”

How are allegations currently examined?

At present, when allegations of domestic abuse, such as controlling and coercive behaviour, are made during Family proceedings (including Children Act proceedings), both parties will file statements regarding the allegations, and the court will list a ‘fact finding hearing’.

At this hearing the judge will consider both the written and oral evidence provided regarding the allegations and will decide the legitimacy of such allegations on a ‘balance of probability’ test.  Currently, this requires specific examples to be cited, but this restrictive method of examination is now to be reviewed to help victims of controlling and coercive behaviour where one specific event would otherwise be inconclusive and to give them better access to justice.

Can the police get involved?

The police and criminal court can prosecute perpetrators of controlling and/or coercive behaviour under the Serious Crime Act 2015 (section 76).

The criminal courts similarly recognise this type of behaviour as a pattern of repeated behaviours (of at least two incidents) that can have a serious effect on the victim such that it should cause them alarm, distress which impacts their day-to-day activities, and/or to fear violence.

The Family and Criminal courts are alert to the significance and effect of ongoing (as well as historic) controlling and coercive behaviour and there are steps that can be taken to stop this pattern.

If you would like to speak to someone (on behalf of yourself or someone you know) for advice regarding controlling and coercive behaviour, please do not hesitate to contact a member of our Family team and/or our Criminal team on enquiries@bpcollins.co.uk or call 01753 89995.

Hannah Yellop

Hannah Yellop

Tel: 01753 278688 | 07816 170413

James Constable

James Constable

Tel: 01753 279039 | 07341 566327

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