Understanding Controlling and Coercive Behaviour [‘CCB’]
Now seems like a good time to ask ourselves, ‘has anything changed; are things better?’ Answering that question, I personally think there is more awareness and a better understanding around coercive and controlling behaviour but the profession is still struggling with being consistent in how allegations of this type are managed.
Definition
The starting point is the definition of controlling and coercive behaviour. The criminal arena is a few years ahead of us so it’s useful, as a starting point, to consider the criminal definition. However, this comes with a health warning; remember criminal law concepts should not be applied in family hearings. Re R (children) [2018] EWCA Civ 198
S76 Serious Crime Act 2015
Section 76 of the Serious Crime Act 2015 created a new offence of controlling or coercive behaviour in an intimate or family relationship. The new offence, which does not have retrospective effect, came into force on 29 December 2015.
An offence is committed by A if:
- A repeatedly or continuously engages in behaviour towards another person, B, that is controlling or coercive; and
- At time of the behaviour, A and B are personally connected; and
- The behaviour has a serious effect on B; and
- A knows or ought to know that the behaviour will have a serious effect on B.
A and B are ‘personally connected’ if:
- they are in an intimate personal relationship; or
- they live together and are either members of the same family; or
- they live together and have previously been in an intimate personal relationship with each other.
There are two ways in which it can be proved that A’s behaviour has a ‘serious effect’ on B:
- If it causes B to fear, on at least two occasions, that violence will be used against them – s.76 (4)(a); or
- If it causes B serious alarm or distress which has a substantial adverse effect on their day-to-day activities – s.76 (4) (b).
For the purposes of this offence, behaviour must be engaged in ‘repeatedly’ or ‘continuously’. Another, separate, element of the offence is that it must have a ‘serious effect’ on someone and one way of proving this is that it causes someone to fear, on at least two occasions, that violence will be used against them. There is no specific requirement in the Act that the activity should be of the same nature. The prosecution should be able to show that there was intent to control or coerce someone.
The phrase ‘substantial adverse effect on B’s usual day-to-day activities’ may include, but is not limited to:
- Stopping or changing the way someone socialises
- Physical or mental health deterioration
- A change in routine at home including those associated with mealtimes or household chores
- Attendance record at school
- Putting in place measures at home to safeguard themselves or their children
- Changes to work patterns, employment status or routes to work
For the purposes of the offence, A ‘ought to know’ what a reasonable person in possession of the same information would know – s.76 (5).
A person guilty of an offence under this section is liable:
- On conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
- On summary conviction, to imprisonment for a term not exceeding 6 months, or a fine, or both.
The authoritative definition within the family law arena is as follows:
Coercive Behaviour (§108 F v M and approved at §29 in Re H-N)
- Adopted the definition in PD 12J ‘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’
- Patterns of acts
- Acts characterised by assault, threats, humiliation and intimidation (may appear in other guises)
- The objective of these acts is to harm, punish or frighten the victim
Controlling Behaviour (§108 F v M and approved at §29 in Re H-N)
- Adopted the definition in PD 12J ‘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’
- A pattern of acts
- Designed to make a person subordinate and / or dependent
- Achieved by isolating them from support and exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their everyday activities.
Understanding it
‘Individual acts may only be understood properly within the context of wider behaviour. I emphasise it is the behaviour and not simply the repetition of individual acts which reveals the real objective of the perpetrator and thus the true nature of the abuse.’ [§109 F v M]
Controlling and coercive behaviour is an intrinsic part of domestic abuse and often invisible to others. You tend to find that it’s ongoing rather than episodic. The perpetrator will use many strategies to achieve control: physical violence, isolation, degradation, shaming, stalking, surveillance, regulation of victims behaviour. Financial control is part of coercion. Ultimately, this results in a person being trapped in the relationship. The harm caused is cumulative and needs to be evidenced.
The abuse can continue post-separation. You might hear the victim talking about the following:
- Threaten suicide
- Stalking
- Withdraw of financial support
- Refuse access to what was a shared home
- Reports to children’s services
- Undermine mother’s relationship with children
- Apply for a CAO – live with
- Accuse of parental alienation
- Use the family court as a way to continue their abuse
The CPS offer the following behaviours as examples,
- 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
Evidencing it
We are now moving away from Scott schedules ‘the subtleties of human behaviour are not easily captive to the confinement and constraint of a schedule.’ What does that mean for you in practice? I would suggest the following:
- Be precise and descriptive in the substantive statement
- Link the perpetrators actions to the harm caused to victim and children
- Directed against the child
- Witnessed by the child
- Did it cause the victim to be so frightened of provoking an outburst or reaction from the perpetrator that she / he is unable to give priority to the needs to the child?
- Did it create an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child?
- Risks poor role modelling
- Link perpetrators abusive behaviours to the risk that they pose to the victim and children
- Focus on the child’s lived experiences in the family home – ask yourself what each allegation means for the child?
- Link to the terminology in PD12J (where possible)
- Don’t use language that can be misinterpreted
- Articulate expectations for changed behaviour
- You want a statement that details: Nature of the relationship
- State when the abusive behaviour began
- Who was that behaviour directed at?
- Did the behaviour continue after the relationship ended?
- Describe the behaviours which were controlling and coercive behaviour and could not be pinned down to one incident
- What the as the impact on the health, safety and well-being of the adult, child, victim – focusing on first incident, worse incident and most recent incident (for each type of behaviour)
- Personal characteristics of the parties – mental health, drugs, forensic history
- Want a document that pulls it all together and provides
- Summary of the nature of the relationship
- List of the forms of domestic abuse and evidence said to establish it
- List of key incidents said to be probative of a pattern of controlling and coercive behaviour
- List any other specific incidents so serious that they justify determination irrespective of any alleged pattern of controlling and coercive behaviour.
Similar Fact Evidence
I think it’s probable that we will see an increase in applications for permission to adduce similar fact evidence. This will require advance and early case management and you being proactive in the directions you seek.
There has been recent and helpful guidance in R v P (Children: Similar Fact Evidence [2020] EWCA Civ 1088, which states:
- To be admissible it must be relevant i.e. must be logically probative of some matter which requires proof.
Recent Changes to the Law
Provisions that came into force on 1st October 2021 – via the commencement Regulations:
- (a)section 1 (definition of “domestic abuse”) so far as not already in force;
- (b)section 2 (definition of “personally connected”) so far as not already in force;
- (c)section 3 (children as victims of domestic abuse) only for the purposes of section 63 (special measures in family proceedings: victims of domestic abuse) and Part 4 (Local Authority support);
- (d)section 63 (special measures in family proceedings: victims of domestic abuse);
- (e)Part 4 (Local Authority support).
The Domestic Abuse Act recognises that being a party to proceedings involving domestic abuse can be difficult for the victim. The Act, therefore, introduces an assumption that the quality of a person’s evidence and their participation in the proceedings are likely to be diminished by reason of vulnerability. This applies when the person is a party or witness in family proceedings and is, or is at risk of being, a victim of domestic abuse.
This is applicable if the person is, or is at risk of being, a victim of domestic abuse by:
- A party to the proceedings;
- A relative of a party to the proceedings; or
- A witness in the proceedings.
As a victim of domestic abuse, the victim will be automatically eligible for access to special measures. The type of measures that may be used can be found in the Family Procedure Rules, for example:
- Preventing a party/witness from seeing another party or witness;
- Allowing a party/witness to participate in hearings and give evidence by live link;
- Providing for a party or witness to participate in proceedings with the assistance of an intermediary; and
- Providing for a party or witness to be questioned in court with the assistance of an intermediary.
The Act obliges local authorities to support victims of domestic abuse by making it necessary that they:
- Assess, or makes arrangements to assess, the need for accommodation-based support;
- Prepare and publish a strategy to do so; and
- Monitor the effectiveness of the strategy.
Accommodation-based support means support for victims of domestic abuse and their children in relevant accommodation. The exact type of accommodation to be included has not been finalised, however, it provisionally includes:
- Local authority housing;
- A private registered provider of social housing;
- Registered charity accommodation which provides support to victims of domestic abuse;
- Refuge accommodation;
- Specialist safe accommodation;
- Dispersed accommodation;
- Second stage accommodation; or
- Alternative accommodation designated by the local housing authority, registered social landlord or registered charity as domestic abuse emergency accommodation.
Finally, the Act states that health professionals cannot charge a fee for the preparation or provision of evidence, when it is evidence that the individual is, or is at risk of being, a victim of domestic abuse, and the evidence supports the individual’s application for legal services.
Changes on the Horizon:
- January 2022: Expands definition of a victim to include a child (s3 DAA 2021)
- May 2022: Prohibition on cross examination (s65 DAA 2021)
- May 2022: Greater emphasis of 91(14) Order
- 2023: Domestic Abuse Protection Orders
So, stepping back, as we approach the first anniversary of F v M, it would seem that there has been some change and some movement. We now need to see consistency in the way it’s deployed. To achieve that we need to be sharing our experiences and capturing the data. I am not sure how / if that is being done from a practitioners’ perspective. Time will tell…
Written by Lisa Edmunds, CEO, Senior Consultant Barrister and Arbitrator