Domestic abuse in the Family Court: F v M

Family Law

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