Coercive and Controlling Behaviours: How are they to be dealt with in fact finding hearings after the recent case of F v M?

Private Law (Child Arrangements Programme (CAP))

03 March 2021

Allegations of domestic abuse are usually raised from the outset by either the applicant or respondent in private law proceedings. Further allegations may be raised at the safeguarding stage, with recommendations by Cafcass as to whether there should be a fact finding hearing, before final resolution of the case.

Where the allegations are of violence per se, these are relatively easy to set out in a Scott Schedule (i.e a table identifying the allegations and the evidence relied on in support) and determine by the court, as they will usually be confined to a particular incident alleged to have occurred on a particular day, time and place, with at least the parties giving evidence. Where the allegations are of a coercive and controlling nature however, they are more difficult to capture in a Scott Schedule and proven to the court.

The recent case of F v M [2021] 4 had to wrestle with how to deal with allegations of controlling and coercive behaviours, at the fact finding stage of private law proceedings. The facts are, to say the least complex, but centred around allegations of controlling and coercive behaviour at an extreme level, spanning two separate relationships, with the father being the common denominator. The case came before the Court of Appeal, following a case management decision, from HHJ Jacklin QC, which refused to allow evidence from allegations, made in a subsequent relationship. The Court of Appeal overturned that decision and transferred the proceedings to the High Court. The fact finding hearing then came before Mr Justice Hayden, who referred to both sets of behaviour by the father as “a strikingly similar replication.”

In deciding whether evidence from a previous relationship can be admitted, reference was made to the House of Lords decision in O’Brien v Chief Constable of South Wales [2005] UKHL 26, which the Court of Appeal considered, in overturning the decision of the HHJ Jacklin QC. This case considered the issue of similar fact evidence in civil cases, where it was contended that a person’s behaviour on a different occasion, makes it more likely that he has behaved in the way that it is now alleged. It was decided that the evidence must be relevant, in that it is logically probative or disprobative of the matter requiring proof and in the interest of justice, for it to be admitted. The Court of Appeal agreed that the same analysis of the evidence applies to family proceedings.

The starting point for family lawyers however, is the guidance provided by Practice Direction 12J-Child Arrangements and Contact Order: Domestic Violence and Harm which states that allegations of controlling behaviour or coercive behaviour, must include “an act or pattern of acts” by the perpetrator, which leads to domestic abuse in the ways set out in those definitions. Mr Justice Hayden had this criticism of those definitions, however:

The wording of Practice Direction 12J is potentially misleading in so far as it appears to contemplate establishing behaviour by reference to an act or pattern of acts. Key to assessing abuse in the context of coercive behaviour is recognising that the significance of individual acts may only be properly understood within the context of the wider behaviour. I emphasise it is the behaviour and not simply the repetition of the individual acts which reveals the real objectives of the perpetrator and this is the true nature of the abuse.

Earlier in his judgment he said this:

The term [controlling and coercive behaviour] is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that coercion will usually involve a pattern of acts encompassing for example, assault, intimidation and threats. Controlling behaviour really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation.

Reference was also made to Section 76 of the Serious Crime Act 2015, for further guidance as to what constitute controlling and coercive behaviour.

Section 76 is headed, “Controlling or Coercive behaviour in an intimate or family relationship” and sets out that a person commits an offence if he repeatedly or continuously engages in behaviour that is controlling or coercive towards another person, which has a serious effect on that person and he knows or ought to know that it will have such an effect on that person.
‘Serious effect’ is defined as behaviour that causes:

a. fear on at least two occasions, that violence will be used against that person, or
b. serious alarm or distress which has a substantial adverse effect on that person’s day to day activities.

For a non-exhaustive list of controlling or coercive behaviour please see the statutory guidance framework in 2015 entitled, “ Controlling and Coercive Behaviour in an Intimate Relationship.”


F v M makes clear that a finding of coercive and or controlling behaviour, will never be found based on an isolated act by the perpetrator; there must be a pattern or series of acts. If that is right; is an allegation that the perpetrator has plundered the family’s joint account for the first time on the day of separation, after a long relationship, coercive or controlling behaviour? Or does it alternatively come within the definition of “domestic violence” in Practice Direction 12J, which “includes…any incident of…abuse.

If a finding of coercive and or controlling behaviour, can only be made based on a pattern or series of acts, the practical difficulty for practitioners, is how should it be pleaded in a Scott Schedule? Mr Justice Hayden, referred to such behaviour as “ a particular insidious type of abuse” that is difficult to capture by the more formulaic discipline of a Scott Schedule.

My own view is, where there are allegations of coercive and controlling behaviour they need only be pleaded in the Scott Schedule in a general way, highlighting examples of the behaviour alleged and setting further examples in the supporting statement. It maybe necessary then, for the court to limit the examples relied on, preferably at the case management stage of proceedings or at the beginning of the fact finding hearing itself.

It is now not in doubt either that the evidence can be adduced from a previous or subsequent relationship, common to the perpetrator, so long as the evidence is probative and it is in the interest of justice, for it to be adduced. Clearly this will only be necessary in a small minority of cases, where the allegations are of the most extreme nature, as was the case in F v M.

For help, advice or if you wish to instruct a member of Chambers, please contact our Clerking team