Clare Ciborowska provides a useful summary of the case of F v M [2021] EWFC 4 which considers allegations of coercive and controlling behaviour.
This is one of the first known reported cases in the family courts that deals comprehensively with allegations of coercive control. Mr Justice Hayden heard the case over 10 days in November 2020 with the judgment being published on 15 January 2021.
It was acknowledged by the judge that there has been very little reported case law in the family Court considering coercive and controlling behaviour. The judge comments that it requires greater awareness and more focused training for the relevant professionals (para 4).
It is a judgment that anyone practicing in family law should read. It illustrates just how difficult it is to evidence the type of coercion and control at play in a case such as this. It is only by dissecting the whole history of the relationship in detail that the pattern of coercion is fully appreciated. It is often the case that individual acts, of their own, do not paint an obvious picture of severe coercion and control. Instead, the acts and the severity of the coercion, builds over a significant period of time.
The case concerned similar fact evidence with the court considering the circumstances of two separate families/relationships in which the father was the common denominator. There was a successful appeal against an earlier decision to exclude the evidence in the second relationship.
Mr Justice Hayden held that:
‘The consideration of both ‘cases’ together served to illuminate the sinister, domineering and, frequently, tyrannizing complexion of F’s behaviour, to a degree which would not have been fully appreciated had the cases been severed. It is the chilling repetition of identical behaviours, with two very different women of different age and background, which casts evidential light and does so in each individual case.’ (at 5)
The facts of this case set out in great detail the nuances of a coercively controlling relationship. It is a lengthy judgment but one that appears necessary to fully appreciate and understand the ‘tyranny’ that these mothers were subjected to at the hands of this father.
In the first case, M, a vulnerable young woman was manipulated, coerced and controlled to a significant degree. She had two children with F that the court was concerned with. The court had the benefit of evidence from M’s parents who set out their own concerns about the nature of the relationship and how there were warning signs very early on.
Mr Justice Hayden held in respect of the maternal grandmother’s evidence:
‘What was striking in her evidence and magnified in her daughter’s were the occasions when she genuinely struggled to disentangle what F had told her from that which she had experienced. Texts and messages were sometimes sent to her purporting to be from her daughter but manifestly from F. F consider was so confident in his own capacity to deceive others that he did not recognise that however good his English maybe it still bore the hallmarks of a second language rather than a native speaker… nonetheless, MGM had plainly not always recognized whether F or M was communicating with her and I sensed that, even now, the phycological confusion that created is something she finds difficult to unpick’ (at 32).
The facts of the first case also serve to highlight how perpetrators of this type of abuse are able to manipulate authorities, in this case the police, into accepting that they, the perpetrator are, in fact, the victim. Mr Justice Hayden held that:
‘I consider that M was not only the victim of F’s controlling and manipulative behaviour, her parents were also cowed by him. He appeared to outwit them at every turn and to be able to convince others, including to some extent the police that it was he who was the victim. M’s parents had plainly begun to feel entirely powerless.’ (at 30).
It takes a skilled practitioner to piece together the evidence required to challenge a confident and self-assured abuser. The judge comments:
‘As will already be obvious, a great deal of evidence has now been gathered in this case. The nature of the evidence and the breadth of it has presented a considerable challenge to the advocates. It has not been easy to marshal. What is striking, however, is the degree to which the allegations in this case mirror the paradigmatic behaviours identified in the guidance above.
M simply lacks the guile, the experience or the maturity of mind to have been able, so completely, to fabricate such a compelling and cohesive picture. Moreover, it is supported and strengthened by the wider evidence, particularly of M’s parents, friends, university acquaintances, tutors and the university Chaplin. In this this case I am required to make findings on the balance of probability I have no difficulty in concluding that between December 2013 and September 2017 M was subjected to a brutalising, dehumanizing regime, by F which subjugated her and was profoundly corrosive of her autonomy. (at 64).
He goes on to say in respect of the linked second case:
‘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 17 of the Serious Crim 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 mor than a single act. The wording of FPD 2010 PD12J is 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 contest 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’. (at 109)
The judge also took the opportunity to comment upon the use of Scott Schedules. The judge said this:
‘What I have referred to as a particularly insidious type of abuse, may not easily be captured by the more formulaic discipline of a Scott Schedule. As I have commented above, what is really being examined in domestic abuse of this kind is a pattern of behaviour, possibly over many years, in which particular incidents may carry significance which may sometimes be obvious to an observer but to which the victim has become inured.’ (poscript)
An intense focus on particular and specified incidents may be a counter productive exercise. It carries the risk of obscuring the serious nature of the harm perpetrated in a pattern of behaviour. … 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…. 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 (postscript).
This case certainly presents a challenge to a busy family lawyer both in terms of the breath and extent of the evidence that needs to be gathered and in terms of the presentation of the case to the court. Often, the full extent of a case like this takes time to be properly discovered in conference with a client, and sometimes over numerous different meetings. FHDRAs are listed in busy lists with an emphasis on narrowing down the allegations and reducing the number of hearings required. It is clear, however, that cases such as the two set out in this judgment require full hearings with proper representation and judicial oversight to navigate the complex issues and to fully appreciate the insidious and manipulative behaviours of the abuser and effect on the victim and children. Being able to set out a pattern of behaviour from the outset is key to highlighting to the court why an extensive and forensic overview is required.
Cases such as this must be distinguished from those that set out numerous allegations of bad behaviour in relationships (see L v F [2017] EWCV Civ 2121) but that do not meet the threshold to be defined as coercivce control and where the court has become the ‘battleground for adult conflict’. The court is unlikely to be helped by a lengthy trawl through the parties’ relationship and complaints against one another when the behaviour alleged falls short of the type that Mr Justice Hayden has dealt with in these linked cases.
The facts of the linked cases set out a very clear example of the extent of the behaviour that could support findings of this nature and it is quite obvious why it was necessary for the court to hold such an in-depth enquiry.
Clare recently appeared on a BBC 3 documentary exploring coercive control and has spoken about the topic on Law Pod UK. She is a specialist family practitioner and has a strong local practice.
