Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom

Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom.

Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom.

New Sentencing Guidelines for ABH, GBH and GBH With Intent

New Sentencing Guidelines for ABH, GBH and GBH With Intent

New Sentencing Guidelines for ABH, GBH and GBH With Intent

On 27 May 2021, the Sentencing Council released new guidelines for all assault offences which will come into effect on 1 July 2021.

Sentencing for all three offences sees a significant change under the new guidelines. Whilst the statutory maximum for the offences has not changed, the sentencing range for ABH has been increased to 4 years custody and the sentencing range for GBH has been increased to 4 years 6 months custody. Meanwhile, the sentencing range for GBH with Intent has been reduced to between 2 years and 16 years custody. This means that a sentence that falls at the very lowest level of seriousness for GBH with Intent could now take the form of a suspended sentence.

Even at first glance, the extent of the changes to the guidelines are clear. All three offences will have nine categories as of 1 July 2021, with both culpability and harm consisting of three sub-categories each. The Sentencing Council have said this will ensure an appropriate assessment of culpability and harm is undertaken and will provide a proportionate sentence. The approach will allow for a more specific category to be identified which could result in more consistent sentences.

In terms of the relationship between the new and old categories of offence, in the majority of cases the top category (Culpability A, Harm 1) has a greater starting point and range than the former Category 1. The lowest category (Culpability C, Harm 3) also has a greater starting point range than the old Category 3 offence. The exception is GBH with Intent, where the lowest offence (Culpability C, Harm 3) has a range of 2 years to 4 years instead of 3 years to 5 years under Category 3. These changes will have the greatest significance for those convicted of ABH. A Defendant who falls within the lowest category of ABH on 30 June 2021 will be in the range of a Band A fine to a High-Level Community Order. However, a Defendant who falls within the lowest category on 1 July will be in the range of a Band B fine to 26 weeks custody. As a result, all Defendants will fall within a category with a range including a custodial sentence.

Culpability:

The guidelines introduce a range of new culpability considerations, many of which feature in all three guidelines. One of the most significant changes to the culpability assessment is the stronger focus on weapons. For all three offences, Culpability A includes the use of a ‘highly dangerous weapon or weapon equivalent’, Culpability B includes ‘use of a weapon or weapon equivalent which does not fall within Category A’ and Culpability C, ‘no weapon used.’ A highly dangerous weapon is defined as including knives and firearms, equivalents include corrosive substances. Highly dangerous weapons or equivalents are said to go above and beyond the legislative definition of an offensive weapon. Whilst the guidance provides some assistance, it is likely that a wealth of case law will quickly develop as to specifically what weapons are ‘highly dangerous’. What is not clear from the guidance is how the new focus on weapons will operate in situations where Possession of an Offensive Weapon is also charged. The current approach of making sentences for an assault offence and a possession offence consecutive will likely not be sustainable given consideration will already have been given to the presence of the weapon in sentencing for the assault offence. One cannot help but wonder if the stronger focus on weapons is, at least in part, a response to the increased prevalence of knife crime in recent years.

The culpability assessment for all three guidelines now includes ‘strangulation/ suffocation/ asphyxiation’. This is in response to research that highlighted the seriousness of strangulation as a mode of assault and the prevalence of strangulation in the context of domestic abuse. Protection for domestic abuse victims is a clear theme throughout the new guidelines.

There are several other new considerations in the assessment of culpability, namely:

  • ‘Prolonged/persistent assault’ in Culpability A to replace ‘sustained or repeated’ due difficulties interpreting ‘repeated’.
  • ‘Impulsive/spontaneous and short-lived assault’ in Culpability C for ABH and GBH.
  • ‘Revenge’ in Culpability A for GBH with Intent to distinguish between offenders who act out of vengeance and those who lose control.
  • ‘Offender acted in response to prolonged or extreme violence or abuse by the Victim’ in Culpability C for GBH with Intent to capture those cases where loss of control manslaughter would have been the appropriate verdict if death were caused.

The new guidelines have also removed the following considerations from the culpability assessment:

  • Offence motivated by or demonstrating hostility to the Victim based on their sexual orientation (or presumed sexual orientation) or disability (or presumed disability) has been changed to an aggravating feature.
  • ‘Intention to commit more serious harm than actually resulted from the offence’.
  • ‘Deliberately inflicting more harm than is necessary for commission of offence’.
  • ‘Deliberate targeting of vulnerable victim’.
  • ‘A greater degree of provocation than normally expected’ has been removed from culpability and a ‘significant degree of provocation’ has been added as a mitigating feature for GBH.

Harm:

The new ABH guidelines distinguish between ‘serious physical injury or serious psychological harm and/or substantial impact upon victim’ in Harm 1 and ‘some level of physical injury or psychological harm with limited impact upon the Victim’ in Harm 3. Cases in the middle fall within Harm 2. The aim is that it will more accurately reflect the broad range of injuries sustained in ABH offences. The inclusion of ‘and/or substantial impact upon victim’ broadens the consideration from one focused on the specific injury to the overall impact of the offence on the Victim. In theory, this may mean that even very low-level injuries are capable of falling within the highest category of harm where there has been a substantial impact on the Victim.

The GBH and GBH with Intent guidelines contain the same considerations of harm. The new harm considerations emphasise the level of harm suffered in GBH cases. Category 1 applies to cases where there is ‘particularly grave and/or life-threatening injury caused’, where the injury results in lifelong dependency on a third party or medical practitioner and/or causes ‘a permanent, irreversible injury or condition which has a substantial long-term effect on the Victim’s ability to carry out their normal day to day activities.’ Category 2 is for ‘grave injuries’ and offences that result in ‘permanent, irreversible injury or condition not falling within category 1.’ Category 3 is for ‘all other cases of really serious injury’ and wounding.

All three guidelines, when read alongside their predecessors, contain a stronger focus on the level of injury sustained. This takes the focus away from the level of harm the Defendant intended to cause and focuses on the impact of the offence on the Victim. In line with this, the Sentencing Council has removed the phrase ‘in the context of the offence’ from the harm assessment as it led to problematic arguments about how much worse the harm could have been. The GBH and GBH with Intent guidelines have also removed the vulnerability of the Victim as a consideration.

Aggravating Features:

The new guidelines have also introduced several new aggravating features:

  • ‘Offence motivated by, or demonstrating hostility based on, any of the following characteristics or presumed characteristics of the Victim: disability, sexual orientation or transgender identity’ has been moved from the assessment of culpability and introduced as a statutory aggravating feature.
  • ‘Deliberate spitting or coughing’ has been introduced for ABH to reflect Covid.
  • ‘Offence committed in prison (where not taken into account as a statutory aggravating factor)’ has been introduced in light of the removal of ‘location of the offence’.
  • ‘Offence committed in a domestic context’.
  • ‘History of violence or abuse towards victim by offender’.

The latter two new aggravating features combine to widen the scope of aggravating factors reflecting domestic abuse. The features do not restrict who the offence or abuse must have been between, meaning that it is not restricted to partner offences but also includes parent-child abuse. The final feature, whilst initially appearing to be tailored to domestic abuse, is not so restricted and could be relevant in cases of long-running neighbour disputes, for example.

A significant number of aggravating features have been removed:

  • Time and location of the offence have been removed. Whilst their importance in the sphere of domestic abuse has been compensated for by the presence of the new aggravating features, ‘location of the offence’ had a much wider scope in practice. The consequence of its loss is that the fact that the offence took place in a Court, school or hospital will no longer be an aggravating feature.
  • ‘Ongoing effect on the Victim’ has been removed in light of the new harm considerations.
  • ‘Presence of others including relatives’ and partners has been removed, however, the presence of children has been retained.
  • ‘In domestic violence cases, Victim forced to leave their home’ has been replaced with the wider protections outlined above.
  • ‘An attempt to conceal or dispose of evidence’.
  • ‘Failure to respond to warnings or concerns expressed by others about the offender’s behaviour’.
  • ‘Exploiting contact arrangements with a child to commit an offence’.
  • ‘Offences to be taken into consideration (TICs)’.

Mitigating Features:

Two new mitigating features have been introduced. The first is a ‘history of significant violence or abuse towards the offender by the Victim’. This covers instances of domestic abuse where the Victim of the abuse has turned on the perpetrator. This consideration means that even if the case does not fall within the situation where the Victim of domestic abuse has snapped in a GBH with Intent offence, there is still recognition of the abuse which they have suffered. It also means that in GBH and ABH cases, there is recognition of the past abuse which has been suffered. The fact that the wording is not limited to ‘violence’ means that the feature will apply equally to cases of physical and non-physical abuse. The second new mitigating feature appears in the GBH guideline: ‘provocation’, which has been moved from the assessment of culpability.

The following have been removed as mitigating features:

  • ‘Single blow’.
  • ‘Isolated incident’.
  • ‘Lapse of time since the offence where this is not the fault of the offender.’

The removal of ‘single blow’ and ‘isolated incident’ goes to intent and reiterates the shift from the Defendant’s intention being at the forefront of the sentencing considerations to the impact on the Victim. It also changes the approach from having a starting point of being multiple blows/prolonged incident which is mitigated by being a single blow/isolated incident, to the starting point being a single blow/isolated incident which is aggravated by multiple blows/being a prolonged incident.

Conclusion:

As a whole, the new guidelines place greater emphasis on the impact on the Victim in determining the appropriate sentence. This moves the focus from the harm the Defendant intended to cause onto the harm actually suffered by the Victim. The broader definition of harm takes us away from looking simply at the injury and encourages consideration of the overall impact of the offence. This could make Victim Impact Statements carry greater importance, with Judges likely placing more weight on the content of any such statement in determining the appropriate offence category. This will almost certainly lead to an increase in the prevalence of Victim Impact Statements with them almost being an essential component of any assault prosecution.

The change which is likely to receive the most praise is the greater protection for Victims of domestic abuse. Not only do the guidelines make a history of domestic abuse an aggravating factor where the Perpetrator is the Defendant, but they also protect when the Victim of domestic abuse is the Defendant in question. This provides greater recognition for the range of scenarios in which domestic abuse comes before the Courts and is likely to be welcomed by many.

 

Abigail Robinson
Fenners Chambers
Solicitor two days late with ET3 subject to a default judgment for discrimination

Solicitor two days late with ET3 subject to a default judgment for discrimination

Solicitor two days late with ET3 subject to a default judgment for discrimination

 

As reported in a recent issue of the Law Society Gazette, Suhayla Bewley successfully represented a conveyancing solicitor who was claiming unfair dismissal against her employer.

The Employment Tribunal awarded a judgment for her claims of unfair dismissal, age discrimination, disability discrimination, notice pay and holiday pay.

See the full article here.

How letting your written terms and conditions lag behind the way you do business can cost you money – Uber and beyond

How letting your written terms and conditions lag behind the way you do business can cost you money – Uber and beyond

How letting your written terms and conditions lag behind the way you do business can cost you money – Uber and beyond

How sure can you be that you aren’t at risk of treating contractors as suppliers when either HMRC or an Employment Tribunal would consider them to be workers or even employees?

For some organisations, this will be clear cut – they employ people in-house and contract methodically with substantial corporate suppliers which have many other customers.

But any organisation, whether in the private or public sector, may find over the coming months and years that either HMRC or a court take a different view about a contractor’s status than you have been taking – and if this happens, the consequences could be serious.

(Don’t forget, either, that in the UK the tax assessment test and the worker or employee v contractor test are misaligned, even though they share some factors!)

This post isn’t another exploration of the potential consequences of the Uber Supreme Court decision for employers – there are plenty of first-class examples of those which you can find within seconds.

Here, we’re going to look in two different directions at the ways law is developing – and hopefully show why there is a little more to think about than just a health-check of your contractual arrangements.

Many factors are driving changes to employment law

Firstly, the Uber decision isn’t only the latest instance of a slow sequence of upper tier legal judgements that are restoring safeguards for the segments of the workforce involved in what has become known as ‘the gig economy’.

The Uber decision is also an instance of a seismic change that we are the very beginning of globally – the efforts by nation states and collaborations of states to clip the wings of the giant ‘tech’ firms that now dominate the global economy. For evidence of this, look to Australia – its government has led the way in forcing Google to pay for news clippings from established mainstream news sources delivered through its search engine, and the same government is being pressed to legislate for minimum wage provisions to be applied to the gig economy.

So we should perhaps keep an eye on competition, tax and technical reforms aimed at inhibiting the strength of ‘tech’ based businesses as a potential source of changes to employment law. The sentiments that will drive regulators to seek to protect consumers and markets will spill over into employment matters.

Indeed, in 2020 Boohoo’s hands-off approach to the pay and conditions experienced by workers in its supply chain in Leicester triggered significant investor negativity and hurt its share price, and more recently a number of institutional investors with large retail customer bases declined to participate in Deliveroo’s Initial Public Offering because of concerns about the firm’s commitment to the principle that its delivery workforce is self-employed.

When paperwork doesn’t match reality

The second legal issue I am focusing on here relates to judicial determinations of disputes where written contracts and practical reality are at odds with one another. The broad legal principle is that express contract terms will be the first port of call in determining what the arrangements are between the parties – but from time to time, as in the Uber judgement, courts will accept that the real working relationship overrides the paperwork.

It is a simple fact of life that in busy organisations that need to deliver public services under pressure or make money in dramatically changing market environments, housekeeping often lags behind practice.

Confusing messages impact employers’ reputations

A young relative was recently appointed to a senior marketing role in a rapidly growing publicly listed retail business. She asked me to review the contract she was sent, which (typically) was restrictive of certain of her rights and prescriptive regarding her obligations. I suggested she ask whether certain terms could be flexed, and when she did this, the answer was “Yes, that’s all fine – we don’t enforce any of those terms – it’s all being reviewed anyway!”

One of the terms said she had to work 40 hours each week in a specific office, and she had been looking at where to invest the deposit she has saved up during lockdown, thinking she’d have to move to the city where the HQ is based. It turns out that they’re happy to see her there for two days a week.

Case study – successful claim asserting employee status

I acted for a client recently who worked in show homes in housing developments built by volume housebuilders. The housebuilder concerned suddenly stopped using her, and sought to strike out her unfair dismissal claim on the grounds that she wasn’t in fact an employee.

On their side, they had the fact that her contract said she would be engaged “as and when required”. This, they argued, showed that she was not an employee.

On her side, she had payslips, a uniform and branded name badge, obligations to undertake and successfully complete training, obligations to complete timesheets and mileage claim sheets, a company laptop connected to its network, absence reporting obligations and set processes, an exclusivity obligation and a notice clause – and no right of substitution.

She had also worked 70 hours each month as a matter of routine for eight years.

The breakdown in the relationship occurred when she was asked to travel 50 miles to one development, and for a journey that could take up to one hour and fifty minutes each way to another. Having said ‘no’ to these requests, she was simply left off the rota.

The housebuilder argued that this showed she had ‘an ability to refuse work’ which supported its position that she was not an employee.

The judge found that “the reason that the Claimant was refusing to attend a particular development on this occasion was, as is reflected in her email, the amount of travel involved. That, in my view, would be no different to an employee objecting to having to undertake something that they felt – rightly or wrongly – fell outside the scope of their duties and responsibilities.”

Don’t let your documentation fall too far behind

Disputes like this are commonplace. An important lesson is that human nature dictates that the most pressing tasks get dealt with first – and this means that there is a decent chance that any organisation’s contractual paperwork is out of sync with the way it actually conducts its business.

When that happens, as Uber and my housebuilder both found out, the paperwork won’t be strong enough to rely on if the facts are clear.

Shahin Ismail
Fenners Chambers
Domestic abuse in the Family Court: Re H-N and Others

Domestic abuse in the Family Court: Re H-N and Others

Domestic abuse in the Family Court: Re H-N and Others

The purpose of this article is to distil the recent decisions in F v M [2021] EWFC 4 (Fam) and Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448, both of which relate to the Family Court’s handling of cases involving domestic abuse.

Re H-N and Others

The background

Re H-N (McFarlane P, King LJ and Holroyde LJ) concerned the conjoined appeal of four cases involving fact-finding hearings. I do not intend to go into the facts of each appeal, but for completeness I shall state that three of the appeals were allowed (one in part) and one (Re H) dismissed (on the grounds that the appeal was purely academic in that the Appellant had no desire to stop or curtail the unsupervised contact between the child and the Respondent which was currently taking place).

The Court of Appeal did however seek to give some ‘general guidance’ in relation to how the court approaches cases of domestic violence, most notably on the following issues/questions:

  1. Is Practice Direction 12J fit for purpose?
  2. What is coercive and controlling behaviour
  3. Whether there should be a fact-finding hearing?
  4. Scott-Schedules
  5. How should allegations of coercive and controlling behaviour be approached in a finding of fact hearing
  6. The relevance of criminal law concepts.

Is PD12J fit for purpose?

It should firstly be noted that the Court endorsed PD12J as currently drafted stating (at para 28) ‘We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings.’

What is coercive and controlling behaviour?

The Court recognised that a central concept of the modern definition of domestic abuse was that of coercive and controlling behaviour and further recognised the difficulties and issues of the application of PD12J. In doing so it commended and endorsed the judgment of Hayden J in F v M calling it ‘essential reading for the Family judiciary’ (para 30).

The Court went on to recognise that harm to a child is not limited to actual violence to the child or parent and stated that ‘a pattern of abusive behaviour is as relevant to the child as the adult victim’ and gave examples of how a child can be harmed at para 31:

‘[…] The child can be harmed in any one or a combination of ways for example where the abusive behaviour:
i) Is directed against, or witnessed by, the child;
ii) Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;
iii) Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;
iv) Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.’

In relation to coercive and controlling behaviour (and all other forms of domestic abuse) the Court also endorsed the approach set out by Hayden J of recognising a ‘pattern’ of behaviour as defined in PD12J.

The Court were also clear to recognise that not all behaviour will be classed as abuse and stated at para 32:

‘It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour.’

Should there be a fact-finding hearing?

The Court was clear to endorse the approach set out in PD12J particularly paras 5,16 and 17 (para 35).

It confirmed, having analysed the contents of PD12J, the President’s Guidance ‘The Road Ahead’ and the Overriding Object, that whether a fact-finding hearing should take place will be a question of ‘necessity’ (para 36) and provided the following guidance at para 37:

‘37.The court will carefully consider the totality of PD12J, but to summarise, the proper approach to deciding if a fact-finding hearing is necessary is, we suggest, as follows:
i) The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).
ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.
iii) Careful consideration must be given to PD12J.17 as to whether it is ‘necessary’ to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.
iv) Under PD12J.17 (h) the court has to consider whether a separate fact-finding hearing is ‘necessary and proportionate’. The court and the parties should have in mind as part of its analysis both the overriding objective and the President’s Guidance as set out in ‘The Road Ahead’.’

Scott Schedules

In the course of submissions 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’ (para 43). There was concern on two fronts, one of principle, in that Scott-Schedules made it difficult for a court to look at a pattern of behaviour when focusing on timed and dated incidents, and one more pragmatic, in that courts were asking that allegations be limited or reduced which could cause a false portrayal of a relationship between two individuals (paras 44 and 45).

The Court accepted the criticism of Scott-Schedules at para 46:

‘46. For our part, we see the force of these criticisms and consider that serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does 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. This is an important point. Everyone agrees.’

However, at para 49, stated that it could not determine how the information should be presented:

‘49.The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules. This court is plainly not an appropriate vehicle to do more than describe the options suggested by the parties in their submissions during the course of the hearing. It will be for others, outside the crucible of an individual case or appeal, to develop these suggestions into new guidance or rule changes.[…]’

How should allegations of coercive and controlling behaviour be approached in a finding of
fact hearing?

The Court set out a detailed discussion at paras 50-59 of the judgement. Ultimately the Court left the detail to the trial judge but stated at para 56 and para 59 that where one party made allegations of coercive and controlling behaviour then these would be the courts primary focus above individual dated allegations and they should only be determined ‘because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).’ (para 59)

The Court recognised that dealing with allegations of coercive and controlling behaviour without significantly increasing the timescale of private law proceedings was not an easy balance, but gave four ‘pointers’ at para 58 in relation to this:

a) PD12J (as its title demonstrates) is focussed upon ‘domestic violence and harm’ in the context of ‘child arrangements and contact orders’; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court;

b) PD12J, paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is ‘necessary’ in order to:
i) Provide a factual basis for any welfare report or other assessment;
ii) Provide a basis for an accurate assessment of risk;
iii) Consider any final welfare-based order(s) in relation to child arrangements; or
iv) Consider the need for a domestic abuse-related activity.

c) Where a fact-finding hearing is ‘necessary’, only those allegations which are ‘necessary’ to support the above processes should be listed for determination;

d) In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other.’

The relevance of criminal law concepts

In short the Court endorsed the approach in Re R (Children)(Care Proceedings: Fact-finding Hearing) [2018] 1 WLR 1821 that ‘it was fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.’ (para 62). They further confirmed that the judgment in Re R prevailed over anything contrary in the judgment of Russell J in JH v MF [2020] EWHC 86 (Fam).

The Court did however clarify that Judges in the Family Court should not shy away from using criminal terms (i.e. rape) in the way that it would be used in ordinary speech, but that they are not required to find that the elements of a criminal offence have been made out, in order to make a finding. (paras 60-74).

Conclusion

For me, the five key points to take away from the recent decisions are:

  1. Courts should always be on the lookout for coercive and controlling behaviour in cases where domestic abuse is raised. When is it raised, a pattern of behaviour should be looked at rather than individual (possibly innocuous) incidents.
  2. Fact-finding hearings should only be held when necessary and not all negative behaviour in a relationship will be domestic abuse or require a fact-finding.
  3. If the court’s focus is coercive and controlling behaviour then this will take precedence over individual incidents unless they are so serious on their own (i.e. rape) or are part of a pattern of behaviour.
  4. Scott-Schedules may not always be appropriate, especially for allegations of coercive and controlling behaviour.
  5. Criminal definitions should not be used in the family court, but nor should Judges shy away from using or making findings of behaviour described by criminal terms (i.e. rape) when they are words in ordinary everyday use.
Joshua Walters
Fenners Family Group
Domestic abuse in the Family Court: Re H-N and Others

Domestic abuse in the Family Court: F v M

Domestic abuse in the Family Court: F v M

The purpose of this article is to distil the recent decisions in F v M [2021] EWFC 4 (Fam) and Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448, both of which relate to the Family Court’s handling of cases involving domestic abuse.

F v M

The background

The judgment of Hayden J followed a 10 day fact-finding hearing in the High Court in November 2020. During the course of the hearing the Judge heard evidence from the parents F and M together with M’s parents; evidence from F’s current partner (Ms J), Ms J’s Mother, Ms J’s ex-husband (and Father of her children) and from professionals.

The evidence focused on F’s relationship with his ex-wife (M) and his current partner (Ms J- whose children had been ordered to live with their Father in separate proceedings in Cardiff, after her relationship with F commenced). The evidence demonstrated that principally F’s behaviour resulted in the isolation of M and Ms J. The control of them emotionally, psychologically and financially and that this could be properly categorised as coercive and controlling behaviour.

After setting out in some detail the evidence he had heard, at para 101 of his judgment, Hayden J concluded:

101. I consider F 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 well-being 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.

The two most crucial aspect of the judgment are a) the analysis of what coercive and controlling behaviour is and how it should be approached by the Court and b) the post script discussion regarding Scott-Schedules.

Coercive and controlling behaviour

At para 102 of his judgment, Hayden J set out the lack of authority in relation to coercive and controlling behaviour:

102. This may be the first time the Family Court, at High Court level, has been called upon to analyse allegations of controlling and coercive behaviour with the kind of detail that this case has required. Certainly, neither Counsel nor I have been able to find any other reported case in our respective researches.

Hayden J sought to pull together the various sources available by analysing the definitions of coercive and controlling behaviour and domestic abuse in PD12J (para 103 and 104) and also the criminal offence of coercive and controlling behaviour in an intimate family relationship as per section 76 Serious Crime Act 2015 (para 105). He concluded that the court when faced with a case of coercive and controlling behaviour should approach it in the following way (para 108-109):

108. I do consider that a tight, overly formulaic analysis may ultimately obfuscate rather than illuminate the behaviour. I respectfully agree with the general approach taken to evaluating evidence expressed by Peter Jackson J (as he then was) in Re BR (Proof of Facts) [2015] EWFC 41 and Baker J (as he then was) in Devon County Council v EB and Others [2013] EWHC 968. 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. It seems to me that the definition in the FPR (see para 101 above) provides some useful guidance, when it is broken down:

Coercive Behaviour:

  1. a pattern of acts;
  2. such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises;
  3. the objective of these acts is to harm, punish or frighten the victim.

Controlling Behaviour:

  1. a pattern of acts;
  2. designed to make a person subordinate and/or dependent;
  3. achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their everyday activities.

109. The overall approach to the assessment of evidence here is the same as in any other case. What requires to be factored into the process is the recognition of the insidious scope and manner of this particular type of domestic abuse. The emphasis in Section 76 of the Serious Crime Act 2015, is on “repetition” and “continuous engagement” in patterns of behaviour which are controlling and coercive. Behaviour, it seems to me, requires, logically and by definition, more than a single act. The wording of FPD 2010 12J is therefore potentially misleading in so far as it appears to contemplate establishing behaviour by reference to “an act or a pattern of acts”. Key to assessing abuse in the context of coercive control is recognising that the significance of 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 objectives of the perpetrator and thus the true nature of the abuse. (my emphasis)

A repeated message throughout the judgement (paras 4, 60, 100, 109-113) is that those dealing with allegations of coercive and controlling behaviour must be cautious before viewing allegations in isolation, particularly where a single act may appear innocuous on its own (as per para 49). As Hayden J puts it at para 4:

4. Key to both behaviours (coercive and controlling behaviour) is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation.

Scott Schedules

At the conclusion of the judgment, Counsel for M invited the Judge to comment of the appropriateness of Scott-Schedules in cases involving allegations of coercive and controlling behaviour.

Although he found it inappropriate to give ‘prescriptive guidance’ and said that there were clear advantages to ‘carefully marshalling and honing down the evidence’, he did recognise that in some cases the formulaic nature of Scott Schedules may not easily capture the behaviour complained about and in some cases, such as M v F a Scott-Schedule may be ‘counterproductive’ as they carry ‘the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour’.

Hayden J concludes his judgment with what could be considered an attack on the Scott- Schedule, but ultimately leaves it to the trial judge or ultimately, The Court of Appeal, to determine on another day:

It is, I hope, clear from my analysis of the evidence in this case, that 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. I draw back from going further because Scott Schedules are commonly utilised and have been given much judicial endorsement. I do not discount the possibility that there will be cases when they have real forensic utility. Whether a Scott Schedule is appropriate will be a matter for the judge and the advocates in each case unless, of course, the Court of Appeal signals a change of approach.

Joshua Walters
Fenners Family Group