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Supreme Court’s judgement in F v M (2020) shines much needed light on definition of coercive and controlling behaviour

January 18, 2021 Speech Box

I’ve written previously about the unsatisfactory way in which our courts and (some) professionals deal with issues of domestic abuse that do not involve physical violence.  These kinds of cases can often show coercive and controlling behaviour by one party towards the other, and can be just as destructive as physical abuse can be.  These cases are very difficult to manage and the allegations are often difficult to prove, leaving the person experiencing such abuse feeling let down by our legal system.

This changed last week when we received the judgment of Mr Justice Hayden in the case of F v M, which involved an application made by a father for contact with his two children who were aged 6 and 3.

In summary, the case had been going on for a long time and the proceedings included an application brought by the mother for a Non-Molestation Order against the father.  That Order had been granted and was still in effect at the time that the court considered the children matters.  The nature of the allegations that gave rise to the Non-Molestation Order included complaints of ‘coercive and controlling behaviour’ on the father’s part.  This expression is not given any legal definition.  Mr Justice Hayden thought that it did not require any legal definition.  He said that the term is ‘unambiguous and needs no embellishment’.  He went on to say that ‘coercion’ will usually involve a pattern of acts encompassing assault, intimidation, humiliation and threats. 

‘Controlling behaviour’ can consist of a number of different acts that are designed to make an individual feel ‘subordinate and to corrode their sense of personal autonomy’.  He said that an important feature of both behaviours was that there was normally a pattern or series of events and the effect of these must not be viewed in isolation but looked at overall.  There is little in the way of reported case law considering coercive and controlling behaviour.  Mr Justice Hayden’s judgment is one of the first and certainly the clearest of judgments dealing with this important and ubiquitous form of abuse. 

In this case regard was had to another case in which the father was involved.  After the parents’ separation he had gone on to form another family and his partner in that second relationship reported experiencing the very same behaviour at the hands of the father.  Mr Justice Hayden had to consider the technical issue of ‘similar fact evidence’ which essentially means he had to consider whether or not he was allowed to take into account the issue of whether an individual’s behaviour in other circumstances is evidence that it would make it more likely that he will have behaved in the same manner as alleged in the current case.  This is because it is evidence of a propensity to behave in a certain way.

The history of the way in which the parties’ relationship developed is of note.

Within a few weeks of the mother meeting the father, he began to discuss marriage.  He then started to actively discourage her from seeing her friends and would always join her when she was with them and ensure that she left as soon as possible.  The mother’s friends warned her that they thought that he was controlling her and that they were worried.  In only two weeks after their meeting the mother agreed to marry the father.  The mother’s parents gave evidence that it was obvious that something was wrong.  They said they noticed a difference in the mother’s behaviour as she began to ignore her own mother’s telephone calls, sometimes not responding to them for days.  The mother’s parents said that this was entirely out of character for her.

Early on in the relationship (2014) the maternal grandmother tried to contact the mother, who was a university student, via Facetime.  The father answered and his manner was rude and described as ‘smug and arrogant’.  He refused to put her through to her daughter and disconnected the call.  The grandmother then sent a text message to her to ask what was happening and received no response.  The mother then started telling her parents that the father wouldn’t allow her to speak to them.  They observed their daughter being cut off by the father every time she tried to speak, and he would speak on her behalf.  Shortly after this the mother found out that she was pregnant.  When the mother asked the father to give her some time to reflect and digest that information, he refused, insisting that she telephone her parents immediately to tell them that she was pregnant and would not be returning.

The mother called her parents later that month and asked them to collect her from university.  She was extremely upset and wanted to leave urgently.  She asked her parents to keep her phone and during this time, and it became evident to her parents that the father was telephoning and leaving messages constantly.  A few days later the police arrived at the home of the maternal grandparents and enquired why the mother had missed lectures.  The father had reported the mother was being kept at her parents’ house against her will.  Having failed at getting the police to intervene further in the situation, the father then sent the mother messages threatening to commit suicide.  Under enormous pressure the mother returned to university and re-joined the father.  The father then alleged ‘honour based’ violence against the maternal grandparents and as a result the mother rarely communicated with her parents from that point onwards.  The parties then married.  The maternal grandparents were not told until after the fact. 

The mother said in evidence that the father had never hit her, but she was frequently afraid of him. 

After the baby was born, the couple changed accommodation 16 different times during the 18 months that followed.  It is impossible to detail here all the evidence that was given, which is shocking in its content.  Suffice it to say that the father’s behaviour was not just coercive and controlling, but emotionally and psychologically abusive and there was also a financial element to it.  Early on in the relationship he had convinced the mother to close her sole account in which she had money that had been given to her by her parents.  He then sold all her valuable belongings and appropriated the funds into his account.

The judgment contains a transcript of the police interview with the mother which took place in March 2018.  The police were investigating a possible charge against the father of ‘controlling or coercive behaviour’ pursuant to section 76 of the Serious Crime Act 2015.  It makes distressing reading. 

The mother’s evidence was importantly strengthened and supported by wider evidence, particularly of her parents, friends, university acquaintances, tutors, and a university chaplain.  I think this is sometimes what is lacking in many of the cases that we have to deal with.  Although there are no doubt people who have witnessed the behaviour, it is not always easy to obtain this evidence and many people simply do not want to become involved. 

The judgment then refers to the father’s second relationship with another woman and records how he treated her, which was strikingly similar to what has been described above.  Importantly, the judge in this case said that he thought that understanding and evaluating coercive and controlling behaviour requires isolating what may in some circumstances appear to be relatively innocent or innocuous incidents and locating them in a context which shows their greater significance.  The judge went on to say that he found the father to be a, “Profoundly dangerous young man, dangerous to women who he identifies as vulnerable, and dangerous to children.  The risks he presents to women are not only to their emotional and physical wellbeing but also, in the light of my findings, to their sexual safety.  It is clear that he has the capacity to cause much harm and distress to those who cross him more generally, particularly those within the sphere of the women he controls.  It has been a disturbing case to hear”. 

This appears to be the first time that the Family Court, at High Court level, has been asked to analyse allegations of controlling and coercive behaviour with the kind of detail that is set out in this judgment.  He goes on to say, “what requires to be factored into the process is the recognition of the insidious scope and manner of this particular type of domestic abuse”.  There is an emphasis in the Serious Crime Act section 76 on repetition of patterns of behaviour.  Behaviour means more than a single act.  What makes it difficult for professionals to identify this type of behaviour is that often the perpetrator of the abuse paints himself, successfully, as the victim. 

Important for lawyers is the opinion of the judge that he considered Scott Schedules (a table identifying allegations and the evidence relied on in support) as of limited use in these types of cases, as the subtleties of human behaviour are not easily set out in such a schedule.

Conclusion

So many of the cases that I deal with involve an element of coercive and controlling behaviour; some are extreme like the case referred to above.  All are distressing and need to be dealt with in a professional and careful way that acknowledges the real existence of such abuse and does not dismiss it simply because it can be very difficult to evidence.

I am so pleased to see the Supreme Court dealing with a case such as this in a strong and clear way which will make it easier for us to better tackle these issues in future. 

Our Family lawyers have the knowledge and experience to guide you through these challenging times and have rankings in both Chambers & Partners and the Legal 500 for their expertise.

If you are affected by similar issues or would like to have a related discussion in confidence, please call me Louise Barretto on 020 7091 2869 or emaillbarretto@bishopandsewell.co.uk

The above is accurate as at 18 January 2021. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.

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