Following the introduction of the Domestic Abuse Act 2021 (the “Act”), it’s now widely recognised that domestic abuse (“DA”) can take many forms; it’s in no way limited to physical violence. The Act defines behaviour as abusive if it consists of any of the following:
- Physical violence;
- Violent or threatening behaviour;
- Controlling or coercive behaviour;
- Economic abuse; and
- Psychological, emotional or other abuse.
Sadly, it’s not uncommon that a survivor of domestic abuse will be subject to multiple forms of abuse, over a sustained period of time. This blog will focus specifically on the offence of coercive and controlling behaviour and how this is dealt with by the family courts.
What is controlling and coercive behaviour in family law?
The recent case of F v M [2021] EWFC 4 provided a helpful definition of controlling and coercive behaviour. It was explained that ‘…coercion will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy.’
Controlling and coercive behaviour therefore encompass a wide range of acts, ultimately designed to pervade all elements of a victim’s life and to create an environment of isolation and control.
Recent case law has highlighted that commonly coercive and controlling behaviour does not present itself as a single act, but rather a series of individual acts which may only be recognised as abusive in the context of wider behaviour. This can make it particularly difficult for the victim, and their loved ones to initially recognise the behaviour as abusive.
What are the signs of controlling and coercive behaviour?
There are many signs of controlling and coercive behaviour. Listed below is a non-exhaustive list of behaviours that a perpetrator may inflict upon the victim:
- Isolating them from their friends, family and wider social network.
- Stopping them from going to work, or a place of study, therefore making them further disconnected from the social support that work or study brings.
- Taking control of their finances, i.e. removing access to their bank account.
- Controlling aspects of their everyday life, i.e. telling them what they can wear, who they can see and where they can go.
- Dehumanising them and making them feel worthless. This may be through abusive language, playing on the victim’s insecurities and/or physical violence.
- Stalking the victim and carrying out surveillance of them.
- Monitoring them via online communication tools or spyware.
- Making threats of physical violence.
- Carrying out physical violence and sexual assault.
- Inflicting reputational damage.
These behaviours, when taken together, serve to chip away at a person’s sense of self and corrode their autonomy.
Are there any protective measures available when someone is a victim of coercive and controlling behaviour?
There are a variety of potential remedies available when someone has been subject to a campaign of coercive and controlling behaviour. The two orders that are most frequently applied for in these circumstances are non-molestation orders (“NMO”) and occupation orders (“OO”).
A non-molestation order is an order made by the court prohibiting the perpetrator from molesting the victim or a child. ‘Molestation’ covers not only violence and threats of violence, but also harassment and therefore covers many of the behaviours associated with coercive and controlling behaviour. To obtain an NMO it’s necessary to make an application to the court, following which there may be a maximum of three hearings before the order is put in place. Where an NMO is breached, it’s a criminal offence and imprisonment is a possible outcome.
An occupation order is a court order that says who can live in the family home or enter the surrounding area; it can therefore be used to prevent the perpetrator from entering the family home. The provisions relating to this are quite complicated, but in essence, an individual will have a right to apply for an occupation order if they have an existing right to occupy the home. The court will then assess whether the applicant or any child is likely to suffer significant harm caused by the respondent (the perpetrator) if the order is not made. However, the court has to apply a balance of harm test, which balances the harm caused to the applicant and child if the order is not made, against the harm caused to the respondent and child, if the order is made. When making an occupation order, the court may attach to one of the provisions a power of arrest and where such a provision is breached, it may result in a fine or prison sentence. Where the court has not attached a power of arrest, and the provision is breached, the applicant may apply for a warrant of arrest.
However, these civil court orders may only give limited protection, depending on the personality of the perpetrator. In some circumstances, it may be more appropriate to involve the police in the first instance. Since 2015, coercive and controlling behaviour is also considered a criminal offence. Where convicted, on indictment a person can be imprisoned for up to five years.
How is coercive and controlling behaviour dealt with by the family court in children matters?
Within family law, there is a presumption that, unless the contrary is shown, the involvement of both parents in the life of the child is in the child’s best interest. However, in cases concerning child arrangements and child contact orders, the court will consider at all stages of proceedings whether domestic abuse, which includes coercive and controlling behaviour, should be raised as an issue. Where it’s raised as an issue, extensive steps must be taken to assess the allegations of abuse.
In every case where domestic abuse has been established, the court should consider:
- the effect of the domestic abuse on the child and the arrangements for where the child is living;
- the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;
- whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;
- the likely behaviour during contact with the parent who carried out the domestic abuse, and its effect on the child; and
- the ability of the parents to appreciate the effect of domestic abuse and the potential for future domestic abuse.
Where domestic abuse has been established, the court should only make an order for contact if it is satisfied that:
- the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured, during and after contact; and
- that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
A recent case heard by the Court of Appeal specifically highlighted the concept of coercive and controlling behaviour and the harm it can cause to a child. The courts therefore need to consider whether there has been a pattern of coercive and controlling behaviour when assessing the impact of domestic abuse in children matters.
Coercive and controlling behaviour can have a devastating impact on those affected by it; it has been described by Women’s Aid as having the ability to create an invisible chain and a sense of fear that pervades all elements of a victim’s life.
However, support is available to those who need it. Women’s Aid provides a directory of domestic abuse support services, which can be accessed at: https://www.womensaid.org.uk/womens-aid-directory/. Many of the services listed in the directory also support male victims, but for a list of support available to men, please visit the Men’s Advice Line: Get In Contact With Us | Men’s Advice Line UK (mensadviceline.org.uk).
Alternatively, if you would like to discuss any of the issues raised in this blog with a family law practitioner, please do not hesitate to contact us for confidential family law advice.
