Anyone who has been following ‘Legal Twitter’ this week will be aware of the buzz that is emanating around the case of F v M [2021] EWFC 4. It would not be an overstatement to say that this case, as the first reported High Court case to analyse allegations of coercive and controlling behaviour in such depth, may be one of the most important to happen in family law for a long time. This article aims to draw out four lessons we have learned from Mr Justice Hayden’s judgment and offer some initial thoughts on what they may mean going forward.

Background

This case arose because of an application for contact made by F, a man from Eastern Europe who had come to the UK to study at university. 

While studying, F met M, a London born girl of Hindu origin and they entered a relationship. His coercive and controlling behaviour began at an early stage in the relationship as F would initially complain about M seeing her friends or take her phone and reply to her texts without her consent. This escalated to the point where he insisted on a very quick marriage, forced her to drop out of university when she became pregnant and separated her from her family- even going as far as to allege that she was in danger of ‘honour-based violence’ at the hands of her parents. When M eventually escaped in 2017, she had been moved from flat to flat on at least 13 different occasions in 18 months and was often locked into her room with her children. 

While it is not possible, because of the brevity of this article, to set out every aspect of the coercion and control of M by F mentioned in Hayden J’s judgment, it is fair to say that F controlled virtually every aspect of M’s life.

Following M’s escape, F began a relationship with a new woman Ms J, who was older than him. Words cannot describe the feeling of eery similarity when reading the accounts of the two relationships one after another. It was clear, from the facts, that this was a pattern of behaviour for F.

What are the lessons that we can learn from the judgment of Hayden J?

Lesson One- One act is not enough

The first point worth highlighting is mentioned in para 109 of the judgment, in which Hayden J states that ‘Behaviour, it seems to me, requires, logically and by definition, more than a single act.’ While this may have been clear from case law arising in the criminal law and the Court of Protection, there was a potential conflict with Practice Direction 12J of the Family Procedure Rules. This Practice Direction refers to both coercive behaviour and controlling behaviour as ‘an act or a pattern of acts.’ The clarity that the law is in line with other areas is welcome and is likely to make it more likely that coercive control can be more easily identified in future cases.  

Lesson Two- Context is everything

Next, we can see that, when it comes to coercive control, context is everything. Actions that would seem innocuous or every day in an average relationship may nevertheless amount to coercive control. In the context of F v M, Hayden J highlight the incident of F insisting that M call her parents immediately upon finding out she was pregnant. Without context, this may have been considered innocent, but when taking into account the previous relationship between F and M’s parents, would undoubtedly be a controlling action.

It is to be noted here that Hayden J rejected the approach set out by counsel for F that the court must consider the distinguishing factors that make each action particularly coercive and controlling as being ‘overly formulaic’ and instead advocated the following, more contextual, approach at paragraph 108 as follows:

Whenever Judges are called upon to resolve issues of fact, we do so by evaluating separate strands of evidence and then considering them in the context of the whole. Some features of the evidence will weigh more heavily than others and evidence which may not be significant, in isolation, may gain greater relevance when placed in the context of the wider evidential canvas.’

Lesson Three- Agencies need to think again about identifying coercive control

Lesson two will necessarily have an impact on the contents of lesson three. Agencies such as the police, courts responsible for granting non-molestation orders and children’s services departments will need to consider the wider context of the actions taken by all parties in each case. In particular, Hayden J pointed to F’s tendency to paint himself as the victim- a proposition readily accepted by the police- as well as allusions to M’s parents ‘honour based violence’ despite there being ‘not a scintilla of evidence to support this’ (para 110). The actions to be taken are set out in paragraph 112:

I recognise that busy professionals in all spheres investigating individual incidents may not be well placed to contextualise those incidents in the context of wider and more general behaviour. However, there will frequently be clues, hints, indicators and triggers in what people report which might stimulate wider forensic curiosity and precipitate investigations of greater subtlety and nuance. I do not believe this to be a naïve aspiration… Broader professional education on the scope and ambit of coercive and controlling behaviour is likely, in my view, to generate greater alertness to abuse of this kind which too frequently lies buried or only superficially investigated.

It is no doubt to be hoped that better training on the signs of coercion and control will lead to a better quality of evidence in future cases and that this will go some way to assisting those who have been victims of the practice.

Lesson Four- Scott Schedules aren’t always helpful

In the postscript to his judgment, Hayden J turned to the question of Scott Schedules. He declared that, while he recognised that such schedules are used frequently, they do not tend to be helpful in cases of coercive control. 

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… 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.’

While Hayden J left open the door for judges to determine whether Scott Schedules could be appropriate in a particular case, this certainly seems to be judicial direction to rethink how best to present such cases in order to portray a much more holistic view in the future.

Conclusion

In conclusion, it is a positive thing that the High Court has addressed coercion and control in the context of family law. This is unlikely to be the last children’s case in which issues of this nature arise and while we are likely to benefit from further clarification, there is certainly a lot to take away from this judgment.  

Let’s see what the next instalment brings; the President of the Family Division will hand down judgment soon in ongoing conjoined appeals being heard this week in the Court of Appeal.

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