Lisa Edmunds
Introduction
There is no doubt that those key stakeholders working within the family justice system have an improved understanding around what constitutes domestic abuse and the harmful impact it can have.
One reason behind our evolving awareness is due to one of several elements of domestic abuse, namely controlling and coercive behaviour, being more accessible (both in terms of definition and application) as a category of abuse in its own right.
It is important to check in and remind ourselves of the definition of controlling and coercive behaviour and its origins.
Background and definitions
Leaning on the evolution of this important area from the arena of private law disputes, it was first introduced via PD12J (as amended in 2014) with the following definitions:
‘controlling behaviour’ 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, resistances and escape and regulating their everyday behaviour.
‘coercive behaviour’ 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.
In 2021, Mr Justice Hayden handed down the decision in F v M whereby he attempted to unpack those definitions:
‘controlling behaviour’
- A pattern of acts;
- Such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises;
- The objective of these acts is to harm, punish or frighten the victim.
‘coercive behaviour’
- A pattern of acts;
- Designed to make a person subordinate and/or dependent;
- Achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them o their means of independence, resistance and escape and regulating their everyday activity.
In the same year, the Domestic Abuse Act came into force which gave legislative effect to a new definition of domestic abuse to include controlling or coercive behaviour.
Current Approach
Controlling and coercive behaviour is almost an umbrella term – it is what I would describe as a headline allegation. The detail required to secure a finding of such behaviour can be quite subjective. By consequence, within private law proceedings, we have seen that it can be far reaching in its scope and application.
In private law proceedings allegations involving domestic abuse are captured and considered by reference to PD12J. In financial remedy proceedings allegations of controlling and coercive behaviour are filtered via the section 25 ‘conduct’ limb. That is the lens through which the court will consider any relevant allegations of controlling and coercive behaviour.
The spate of private law Children Act cases in 2001 triggered a surge in litigation. There was a sharp increase in courts listing cases for separate finding of fact hearings where controlling and coercive behaviour was alleged.
Nearly four years on, there has, in my opinion, been a period of reflection and data analysis that demonstrates the harmful effect such an approach brings to already damaged families. Diverting a case for a separate finding of fact hearing brings with it huge financial cost (not just to the parent(s), but also to the public purse) as well as the intangible (and sometimes life lasting) emotional cost.
As a result of which there now appears to be an attempt by the judiciary to regain some control over how litigation is approached when allegations of controlling and coercive behaviour are made. At the very least the courts are asking why can’t such allegations be determined (if necessary) at a composite hearing i.e. a final hearing that considers the facts as well as welfare. As Mrs Justice Lieven said:
‘The welfare checklist focuses the court in considering the case in a holistic manner. The neat categorisation of truth and untruth and hard binary facts, often sits uneasily with the reality of failed relationships. It may be much more useful for a court to consider the evidence, including that of the FCA, in a holistic way rather than trying to separate facts from welfare.’ (TRC v NS [2024] EWHC 80)
This may present an opportune moment for ‘the lessons learnt’ from private law litigation to be shared with the lead financial remedies judges affording an opportunity for improvement.
Lessons learnt
What are those lessons? I would suggest that the headline lesson is that delay compounded by financial and emotional loss must be mitigated at every opportunity because delay can become more harmful to the children/family than the actual finding(s) proven.
Whilst not directly applicable in financial remedy cases it has been confirmed that PD12J, alongside section 1(3) of the Domestic Abuse Act, provides a relevant landscape.
Mr Justice Peel (the Lead Judge of the Financial Remedies Court) has recently handed down a critical judgment, in N v J [2024] EWFC 184 that every practitioner engaged in the thorny world of controlling and coercive behaviour should read.
Of relevance to this discussion he states, ‘PD12J is applicable to children proceedings, and not (at any rate directly) to financial remedy proceedings. The Domestic Abuse Act creates new powers and provisions to protect victims of domestic abuse. Neither amends or supplements the statutory definition of conduct in financial remedies proceedings as interpreted by case law. Nevertheless, the provisions to which I have referred are plainly contextually important and relevant to all family proceedings, including financial remedies.’
Some may say, that despite best efforts by others, the lead financial remedy judges are pushing hard against allowing allegations of controlling and coercive behaviour to cross the conduct threshold. There will be an anxiety that the litigation floodgates will open and the family justice system, which is already significantly creaking with the volume of cases, will start to crumble. On the other side of the table, I have no doubt that there will be some beady-eyed advocates out there looking for that one case to take to the higher courts to challenge the current framework that governs the issue of conduct in these types of cases.
So what is the current state of play in financial remedy proceedings?
When a court determines how finances are to be distributed on divorce they must consider the s25 factors and that includes the requirement to evaluate (where applicable) ‘the conduct of each of the parties, if that conduct is such that it would be inequitable to disregard it.’
There remains no statutory definition of ‘conduct’ however, an emerging set of clear and defined principles from the case law. Controlling and coercive behaviour would be captured by ‘gross and obvious personal conduct’ (OG v AG [2020] EWFC 52).
Peel J has made it as clear that conduct remains an exceptional element of the s25 criteria. The court is continuing its crack down on parties attempting to contaminate the proceedings by referencing controlling and coercive allegations where those allegations will not meet the high bar set for conduct to be a factor to be taken into account. He said, ‘ “conduct” is, in accordance with both statute and case law, only to be taken into account if it is of a highly exceptional nature.’
However, the analysis of any findings of controlling and coercive will always come down to impact. In private law cases the net result of any inquiry is an evaluation of the impact on the child and/or primary carer for the child to have a relationship (including type) with their parent who has/is behaving in this way. In financial remedy cases, the approach is the same in principle – what has been the impact on the assets/resources of the parties and how does that effect distribution?
Even if you secure a finding you must go one step further and evidentially prove a connection between that behaviour and the financial impact as a consequence.
When you consider the s25 criteria, with the discretion that is afforded to Judges when reaching their decision it is, in reality, going to be the factually exceptional cases that are allowed to import any findings of conduct.
I have only encountered two cases where conduct has been relevant because it ‘was of such a gross kind that it would be offensive to a sense of justice that it should not be taken into account’. In the first instance, the husband was serving a prison sentence for attempted murder on the wife and she had sustained life-enduring injuries; the second was when the husband was involved in an arson attack on the family home. Clearly, in those cases there wasn’t much to argue about it – as I say it was clear that the conduct found had impacted on the financial situation. Put simply, they both had the ‘gasp factor’(S v S [2007] 1 FLR 1496).
Peel J has underscored the comments he made in Tsvetkov v Kyayrova by stating that conduct is a specific s25 factor and must always be pleaded at such. You are not allowed to weave into your client’s Form E and narrative statement a character assassination of the other side. He states, ‘that approach is forensically dishonest; it is impermissibly uses the back door when the front door is not available’.
A party asserting conduct must prove:
Stage 1
- The facts relied upon;
- If established, that those facts meet the conduct threshold;
- A necessary, negative financial consequence of the conduct alleged.
Stage 2
- The court then looks at the above via the s25 lens and consider how conduct impacts on the outcome with all relevant factors balanced out alongside one another.
Key Takeaways
So, what are the key takeaway points from that most recent authority:
- Form E: Don’t Plead it if you can’t back it up and follow through:
- A conduct allegation must be particularised at the earliest opportunity including setting out the impact on the finances:
- Be prepared to battle at the First Appointment:
- Less is More:
So for now, I think we are heading towards the end of the road but of course, as we know in the world of family law, anything can happen! Allegations of controlling and coercive behaviour will very rarely meet the threshold and even if the bar is crossed then the second stage will be an evidentially complex objective to reach. The ‘gasp factor’ remains the sense check criteria for us to apply in practice until that one case is found that allows us to know what the Court of Appeal thinks!
Written by Lisa Edmunds, CEO and Senior Consultant Barrister at Unit Chambers.
Law is correct as of 31st July 2024. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.