By Molly Mifsud, barrister, College Chambers
Coercive control is still a matter those of us practicing in family law are seeing time and time again and I imagine if you are anything like me, you are seeing it in several ways. There are some significant changes that have taken place in the world of the Family Courts since my last article on the topic in spring 2022. There have undoubtedly been some great steps forward in the way in which we are dealing with domestic abuse includes coercive control. Firstly, the enactment of section 65 of the Domestic Abuse Act 2021 and secondly, the introduction of QLRs, although the success of that scheme is very much a topic for another day. Paired with this are the changes to Part 3A. Moreover, we have had updates on several occasions to the PD12J. Section 91(14) orders are now becoming part of our active consideration in domestic abuse cases and PD27C in April 2023 setting a new norm when it comes to IDVAs and ISVAs, by saying the default position is that they can attend Court when providing support to a party and that party wants them to attend. What is becoming clear is that our understanding of domestic abuse and its impact is growing, and one hopes that the approach to is becoming clearer and more comprehensive.
As a starting point for our approach, I would encourage you to read the case of Re O (Appeal; Duty To Consider Fact-Find), [2024] EWHC 839 (Fam). Having done the groundwork and established what has happened and explored the allegations with our client, we need to think about the issues raised in this case. This case is an appeal which in part deals with the Court’s approach to a fact find as well as considerations around Part 3A and the participation of vulnerable persons. A key point stressed in this case is that the Court should keep under continuous review the need for a fact find hearing in accordance with PD12J. Regardless of whether an advocate or party invites the Court to consider the need for a fact-find the Judge needs to think about the need for one and the relevance of any allegations to the issues before the Court. As Ms Justice Henke’s judgement indicates there will be occasions as was the case in Re O that judges will find themselves in difficulty down the line because they have not considered the need for a fact-find. Recorder Peacock was thought to have said he cannot determine allegations which were not accepted (the Father in this case had accepted threatening to slit the Mother’s throat in front of the eldest child) but then determined the relationship was toxic towards the end, which as Ms Justice Henke states making a determination albeit quoting Recorder Peacock it seems there was a level of agreement between the parties that this was the case. The Judge needed to consider the impact of domestic abuse on the children which the Mother alleged went beyond the threat witnessed and was controlling and manipulative behaviour towards the children, yet the Judge could not as there was no factual basis. This highlights the need for all involved to be proactive in considering the case as a whole at an early stage and making appropriate representations and to maintain that proactive approach to ensure that the Judge is armed with the evidence needed to determine the issues.
Moreover, as Re O indicates the parties should not be put off inviting the Court to consider a fact-find simply because there have been Family Law Act proceedings which have dealt with the matter in such a way to avoid a full fact find of the issues. What needs to be remembered is the purpose of each set of proceedings in my view. The Family Law Act proceedings will have a different aim to the Children Act proceedings. It is not the aim of the Family Law Act proceedings to determine what has happened so risk analysis and welfare decisions about a child can be considered, the aim of those proceedings is to determine if there is harm or molestation that requires the Court to make a protective order. This case also reminds us that where there are allegations of domestic abuse whether coercive control or not the Court has a mandatory duty to ascertain if there is a vulnerable party or witness and ensure that if there is there are participatory directions made to ensure they can give their best evidence. For us as practitioners this should be something we always have at the fore of our minds and should discuss with our clients ahead of the hearing.
There are a few points to make in respect of a fact-find and the running of one. Firstly, whilst there are problems which will undoubtedly occur with the limitation of statements and the number of allegations that a party can make, and sadly in my experience this is still happening, we show the Court there is a pattern in order to prove coercion and controlling behaviour. The Courts will often be asked to look at individual incidents as part of a pattern and to ensure that we prove the pattern we need to tie all the ends together, this is something which it is easy to miss and can be fatal if it is. We also need to be clear about what is controlling behaviour and what is coercion. Whilst many as I have in this article will refer to controlling and coercive behaviour in one breath, they are distinct and confusing the two may cause you some problems in showing your pattern of behaviour.
Secondly, you will need to be mindful of Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 at paragraph 61 and the comments made about bad behaviour in relationships and be ready and able to show how these incidents which may be called tiffs or blips, or labelled part and parcel of a relationship are not and that they are the pattern of abuse. Re L is a double-edged sword in my view. Whilst Re L is right, we do need to be very mindful that relationships do go through ups and downs and this does not amount to abuse, we also need to be mindful that small acts which can be seen in this way are in fact part of a pattern of coercive and controlling behaviour. It is the impact on the victim which I think needs particular analysis and attention if we are to get the right balance and see what happened for what it was.
Finally, the method of questioning an alleged victim will need to be considered. As mentioned, we now have the Domestic Abuse Act 2021 giving us the option of a QLR. Certainly in the locality I practice in QLRs are still few and far between, and not all appointments are being fulfilled. The President commented on QLRs in “A View from The President’s Chambers: July 2023” and said that if a QLR cannot be found in 28 days the matter should in his view be listed for directions to include a summary of the issues there have been in appointing a QLR. We were reminded that PD3AB at paragraph 5.3 says that a satisfactory alternate to a QLR does not include the Court asking questions, but we were also reminded that this does not trump the Overriding Objective and as such if there is no other choice the President has indicated that we may have to revert to this method of questioning. Other options one may consider exploring is in a Guardian case asking the Guardian to ask questions or another party either running the same case or who is a neutral party if there is such a party (this may be more applicable in public law or intervener cases).
Once we have a factual basis and we have determined that there has been domestic abuse be it coercive control or not, PD12J comes back in. Whilst not all of this is new, it is worth re-visiting to ensure that we are not simply following the tried and tested route of findings, section 7, DRA and final hearing when something else may do. It seems that taking into account PD12J we need to be more alive to the other routes and options before the Court to deal with cases of coercive control and domestic abuse albeit the use of them is likely to be the exception rather than the rule. We are encouraged to keep continuity of judges if there are findings made and to consider or reconsider a section 7 report. PD12J also encourage us to consider an expert report for example a social work, psychiatric or psychological assessment. It is easy to overlook non-social work reports however, they may be worth consideration and may be helpful where a child or parent are providing a barrier to contact and this needs to be understood before social work can take place. As we are used to seeing in section 7 recommendations, we should also consider whether parties need to seek advice, treatment or intervention. What we may need to be better at considering is timing and when this should take place. It may be very clear without a section 7 report that the perpetrator poses such a risk to the child that contact cannot take place or be progressed without work. A brave party may then wish to consider seeking a final order at the point of findings and before any expert report/section 7. Paragraphs 35-38 which will be well known to practitioners will guide you through considerations around contact. The Court must consider when looking at contact not just the direct risk to the child but the indirect risk to the child as a consequence to the impact on their primary carer.
A final point on this whistlestop tour of changes and things to think about is paragraph 37A of PD12J. This relates to s91(14) orders. As I have already indicated we are now being asked to consider these orders proactively in cases of domestic abuse. The paragraph is short and sweet but, in my view, an important one. It recognises that litigation has been a way in which some perpetrators are attempting to coerce and control their victims and that the making of a s91(14) order can be used to mitigate the harm caused by this. There have been many clients sitting in conference rooms before me who have said this litigation is about harming me and not about our child and now that notion has been recognised. My view is that this paragraph has armed us with a powerful tool firstly to limit the number of particularly repeat offenders coming to the Court who fail to comply with directions and then begrudge the outcome and to send a message that the use of proceedings as a weapon will not be tolerated. PD12Q emphasises this further and encourages us to consider these orders which are protective filters at an early stage. PD12Q shows that the Courts are thinking about domestic abuse and coercion and control in a wide sense and how modern technology and third parties are being used in abuse cases.
The take home for me from the last few years is that the Courts are striving to better understand and address coercion, control and domestic abuse. We as practitioners it seems are becoming more alive to the issues too but as always there is room for improvement. An issue we may need to be aware of going forward is going too far the other way and labelling bad behaviour as coercion, control or domestic abuse even when it is not. Many clients are saying to me now, “I realise having done the Freedom Programme (or similar) that X behaviour was abusive and that I have been controlled for years”, often they are right in describing the behaviour as abuse, however, the minority are reading it as normal relationship ups and downs and seeing abuse which is not there. It will be hard to say to those clients that this is unlikely to be viewed as abuse, but I think it is a necessary evil if we are to ensure domestic abuse continues to be taken seriously and not just another case of domestic abuse. The balance of understanding domestic abuse such that we are alive to it even in its most subtle forms whilst not imposing or having imposed on us a narrative which did not exist is a hard one to strike but, it is one we need to strike. Our challenge now may be to find that balance and walk the fine line.
Molly Mifsud, barrister, College Chambers