FREE CHAPTER from ‘A Practical Guide to Practice Direction 12J and Domestic Abuse in Private Law Children Proceedings’ by Rebecca Cross & Malvika Jaganmohan

CHAPTER ONE – WHAT IS DOMESTIC ABUSE?


Societal understandings of what constitutes domestic abuse have evolved over time and, no doubt, will continue to evolve. Similarly, the Family Court’s understanding of domestic abuse and its impact on children has also moved forward.

The Court of Appeal in Re H-N & ors tracked some of these developments in its wide-ranging judgment. It noted that the Domestic Violence and Matrimonial Homes Act 1976 introduced the concept of ‘domestic violence’ which, “although ground breaking in its time, it is now wholly outdated and hard to comprehend an approach which required evidence of actual bodily harm to a victim before a power of arrest could be attached to an injunction…”1 The Court of Appeal also observed that “[o]bsolete too is the approach often seen in the 1980s where… judges regarded that violence is purely a matter as between the adults and not as a factor that would ordinarily be relevant to determining questions about the welfare of their children.”2

The landmark 2001 Court of Appeal case of Re L & ors (children)3 marked a sea-change in the Family Court’s approach to private law children disputes where domestic abuse features. Its “central conclusion… was that there needed to be a heightened awareness of the existence of, and the consequences for children of, exposure to ‘domestic violence’ between parents and other partners.”4 The Court of Appeal considered the Children Act Sub-Committee of the Advisory Board on Family Law’s report on parental contact in domestic violence cases, which made clear that where the issue of domestic violence is raised as a reason for limiting or refusing contact, the court should address the allegations at the earliest opportunity, make findings of fact and decide on the effect of those findings on the question of contact. The court declined to conclude that there should be a presumption against contact where domestic violence has been alleged or proved. The court noted that, as a matter of principle, domestic violence in and of itself cannot constitute a bar to contact.

From reading the judgment, it is clear that the prevailing terminology at the time that Re L & ors was decided was ‘domestic violence’. ‘Domestic abuse’ is the phrase now considered to be more appropriate, encompassing abuse in all its forms rather than focusing on simply physical violence.

Re L & ors pre-dated Practice Direction 12J (‘PD12J’), the framework used by the Family Court when dealing with allegations of domestic abuse in private law children matters. PD12J was initially implemented in 2008 and has twice been updated; once in 2014 and again in 2017. The evolution of PD12J and what prompted its creation will be explored more fully in the next chapter.

The 2014 alteration substantially revised the definition of domestic violence as follows:

domestic violence” means any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse.

controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.

harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill- treatment of another; ‘development’ means physical, intellectual, emotional, social or behavioural development; ‘health’ means physical or mental health; and ‘ill-treatment’ includes sexual abuse and forms of ill-treatment which are not physical.

In 2017, the terminology was changed from domestic ‘violence’ to ‘abuse’ with its definition widened to include culturally specific forms of abuse, including spousal abandonment abroad.5 In all other respects, the 2017 alteration retained the wording from the previous definition of ‘domestic violence’.

There remains a terminology discrepancy within the Family Procedure Rules 2010 (‘FPR 2010’). Both FPR 2010, r. 3.8 and its supporting practice direction, PD3A, refer to ‘domestic violence’ rather than ‘domestic abuse’. This is indicative of a wider difficulty which is endemic amongst those working within the private family law arena, with the phrase ‘domestic violence’ often incorrectly being deployed by practitioners and judges alike. While this may seem to be nit-picking, language very much matters. For those working in the family justice system to show the general public and their clients that they have a sophisticated understanding of abuse in all its forms, it is important that we get the basics right. The phrase ‘domestic abuse’ more accurately reflects the full range of abuse, its complexities and the ongoing effects of the abuse post-separation on both the victim and the child.

Definitions

Practice Direction 12J

PD12J provides the following definition for domestic abuse:

domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment.

Coercive and controlling behaviour is defined less broadly within PD12J:

coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

In the 2021 High Court decision of F v M6, Hayden J attempted to unpick the definitions of ‘coercive behaviour’ and ‘controlling behaviour’ in light of the difficulties identifying and evaluating the actions which amount to coercive and controlling behaviour. Hayden J observed that whilst individual acts relied upon may appear innocuous, it is only when those acts are considered against the backdrop of all the evidence that they bear a greater and more troubling significance. Hayden J also identified the potentially misleading definition within PD12J which suggests that a single incident of coercive or controlling behaviour may constitute domestic abuse, when “behaviour… requires, logically and by definition, more than a single act.7 Hayden J repeats the following theme throughout his judgment:

Key to assessing abuse in the context 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.”8

Hayden J breaks down the PD12J definition of coercive and controlling behaviour as follows9:

Coercive Behaviour:

  • a pattern of acts;

  • such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises;

  • the objective of these acts is to harm, punish or frighten the victim.

Controlling Behaviour:

  • a pattern of acts;

  • designed to make a person subordinate and/or dependent;

  • achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their everyday activities.

Children Act 1989

Section 31(9) of the Children Act 1989 provides the following definitions:

  • Harm’ means ill-treatment or damage to health and development, including, for example, damage suffered from seeing or hearing the ill-treatment of another.

  • Health’ means physical or mental health.

  • Development’ means physical, intellectual, emotional, social or behavioural development.

  • Ill-treatment’ includes sexual abuse and forms of ill-treatment which are not physical.

Whilst we acknowledge that section 31 is concerned with the making of public law orders rather than private law orders and the statutory definitions proffered are stated only to apply to that particular section, the same definitions are repeated on the first page of the C1A supplementary information court form, the form used to raise allegations of domestic abuse in a private law application.

Domestic Abuse Act 2021

The Domestic Abuse Act 2021 received Royal Assent on 29th April 2021. It provides a new definition of domestic abuse that applies to abusive behaviour between two people aged 16 or over who are personally connected to each other.

Section 1(3) contains the key definition:

Behaviour is ‘abusive’ if it consists of any of the following –

(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(c) controlling or coercive behaviour;

(d) economic abuse (see subsection (4));

(e) psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident or a course of conduct.

1(4) ‘Economic abuse’ means any behaviour that has a substantial adverse effect on B’s ability to –

(a) acquire, use or maintain money or other property, or

(b) obtain goods or services.

Victims of domestic abuse can include children who are present.10 Section 3 of the Domestic Abuse Act 2021 recognises that domestic abuse can impact on a child who sees or hears, or experiences the effects of the abuse and it treats such children as victims of domestic abuse in their own right where they are related to either the abuser or the abused.

Sections 1 to 2 of the Domestic Abuse Act 2021 came into force on 1st October 202111, while section 3 is due to come into force in Winter 2022.12 However, in Re H-N & ors the Court of Appeal acknowledged that whilst the structure of the definition in the new Act is different to that within PD12J, the content is substantially the same. 13

Final observations

In Re H-N & ors the Court of Appeal endorsed14 the comments of Jackson LJ in Re L (Relocation: Second Appeal)15:

Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict.”

In short: previous poor behaviour between parents which is relied upon by a party to the proceedings must directly concern the welfare of a child. The Family Court does not entertain generalised mud-slinging. The onus is on practitioners to advise clients robustly about what is relevant and what is not; clients may well wish to throw ‘everything and the kitchen sink’ into the proceedings. To prevent fact-finding hearings from becoming unmanageably long (with the consequential delay to the proceedings and to the making of final decisions for children), careful thought needs to be given to what amounts to simply bad behaviour, and what amounts to domestic abuse. This can be a tricky line for practitioners to tread as, of course, we do not want clients to think us unsympathetic to their concerns.

Having said that, post-Re H-N & ors, we are likely to see an increasing reluctance by courts to prevent parties from raising allegations against the other party for fear of being appealed. Whilst Re H-N & ors reiterates the principle that case management lies with the tribunal, we suspect that many judges will be reluctant to closely examine whether something is or is not domestic abuse at an interim stage for fear of being appealed because they did not allow an alleged victim to put their case fully.

The Court of Appeal in Re H-N & ors also reminds practitioners that victims of domestic abuse do not have to be beyond reproach for the court to be able to make findings in their favour.16 An individual does not have to be ‘blameless’ to be the victim of domestic abuse. As an example, the first-instance judge in one of the Re H-N & ors appeals presented the binary choice between:

[a] relationship characterised by the deeply-controlling father described by the mother, a relationship in which she was blameless and under his spell? Or is the problem in this case the deeply-troubled mother with mental health difficulties unrelated to the father’s behaviour and responsible herself for the wild, unboundaried behaviour described by the father.17

The Court of Appeal observed that while, of course, the credibility of the party alleging abuse is a live issue which requires careful assessment, a “consideration of credibility will necessitate a wide consideration of all the circumstances18 and the court should not encroach on the grounds of a psychiatric assessment “with the focus turning both to the mother’s mental stability and to her skills as a mother and a homemaker rather than whether she was the victim of domestic abuse”.19

Summary

The definition of domestic abuse has changed over time and it will continue to do so. No doubt, as practitioners, we still have much to learn about the insidious nature of domestic abuse and the many ways in which it can manifest.

The present definitions reinforce that non-physical abuse, with particular reference to coercive and controlling behaviour, can constitute domestic abuse. Indeed, the Court of Appeal in Re H-N & ors considered coercive and controlling behaviour to be “central to the modern definitions of domestic abuse20, noting that “consideration of whether the evidence establishes an abusive pattern of coercive and/or controlling behaviour is likely to be the primary question in many cases where there is an allegation of domestic abuse, irrespective of whether there are other more specific factual allegations to be determined.”21

We are pleased to see that a more sophisticated understanding of coercive and controlling behaviour is developing. Ongoing psychological and emotional abuse can build and systematically undermine the victim’s personality and autonomy over many months or years, and can be just as harmful as black eyes and broken bones. However, coercive and controlling behaviour is a slippery concept which will require looking at the whole canvas of evidence. The practical difficulty with establishing coercive and controlling behaviour to the court’s satisfaction remains and practitioners will need to grapple with this. The decision in F v M emphasises that context is everything.

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1 Re H-N & ors, op. cit., at para. 23

2 ibid., at para. 24

3 [2000] EWCA Civ 194

4 Re H-N & ors, op. cit., at para. 24

5 Practice Direction 12J, Family Procedure Rules 2010, at para. 3, accessed at justice.gov.uk

6 [2021] EWFC 4 (Fam)

7 ibid., at para. 109

8 ibid.

9 ibid., at para. 108

10 s1(5), Domestic Abuse Act 2021

11 Pursuant to The Domestic Abuse Act 2021 (Commencement No. 2) Regulations 2021

12 Domestic Abuse Act 2021 commencement schedule, accessed at gov.uk

13 Re H-N & ors, op. cit., at para. 27

14 ibid., at para. 32

15 [2017] EWCA Civ 2121, at para. 61

16 Re H-N & ors, op. cit. at para. 218

17 ibid., at para. 217

18 ibid., at para. 219

19 ibid., at para. 218

20 ibid., at para. 29

21 ibid., at para. 51