Controlling and coercive behaviour in Children Act proceedings

April 29, 2021

Re: H-N & Others (Children) Domestic Abuse: Finding of Fact Hearings – Key Quotes for Practitioners

The Court of Appeal recently heard four appeals about domestic abuse. The Judgment deals with coercive and/or controlling behaviour. It sets out a helpful summary about “Finding of Fact Hearings” and the application of Practice Direction 12(J).

The Judgment does not create “new” law. However, it is a helpful guide for the family courts. This short article pulls out some of the key parts of the Judgment.

“Central to the modern definitions of domestic abuse is the concept of coercive and/or controlling behaviour” – paragraph 29 of the Judgment.

For anyone under the mistaken belief that domestic abuse only involves physical and/or sexual violence the Judgment is unequivocal that coercive and/or controlling behaviour is domestic abuse.

The Court of Appeal hammered home the fact that coercive and/or controlling behaviour must be taken seriously:

“In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings” – paragraph 31 of the Judgment.

Each case will be fact specific but the importance of this statement from the Court of Appeal is that allegations of controlling and/or coercive behaviour should not be treated as less serious or of a different type of class of allegation.

The court recognised that such a pattern of coercive and/or controlling behaviour can be just as abusive if not more abusive then any single incident. The court elaborated on what the negative impact of that behaviour can be when it stated:

“It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour;

1. Is directed against, or witnessed by, the child;
2. 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;
3. Create an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child
4. Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.” – Paragraph 32 of the Judgment.

That is a powerful statement succinctly summarising the harm which a child can suffer from the presence of controlling and/or coercive behaviour.

The court noted that abusive, coercive behaviour is likely to have a cumulative impact upon its victims.

The Judgment was quite clear that there is now a need to move away from the use of schedules [paragraph 49] although the Judgment did not go into further detail on this point.

Ultimately three of the four appeals being heard by the court were allowed. The court was clear that where “an issue properly arises as to whether there has been a pattern of coercive and/or controlling abusive behaviour within a family, and the determination of that issue is likely to be relevant to the risk of future harm, a Judge who fails expressly to consider the issue may be held on appeal to have fallen into error” [paragraph 53].

If you feel that the issue of controlling and/or coercive behaviour has not been properly considered expressly by a Judge then his or her decision could be appealable.

Whilst the Judgment does not set out a new approach to controlling and/or coercive behaviour in the family court, it renews and emphasises the importance of this issue to its work and to the cases of many of the people who come before it.

Dominic Lee

John Hooper & Co

16^th April 2021