Many relationships involve bad behaviour by one or both parties at some stage and most family cases I see have some examples of this. But… not all bad behaviour constitutes ‘domestic abuse’.
‘Coercive behaviour’ is defined as that which is used to harm, punish, or frighten a person. ‘Controlling behaviour’ is behaviour intended to make a person feel subordinate.
In matters where the alleged behaviour doesn’t have one of these characteristics it is not likely that a court will make findings of fact.
In a 2021 case involving allegations of coercive and controlling behaviour [F v M] the judge made some helpful comments.
It is a challenge to understand and identify what sometimes seem to be relatively innocuous incidents and to place them in a context which shows their greater significance in a case.
It is so important to evaluate the individual incidents in the context of a wider inquiry.
The emphasis of section 76 of the Serious Crime Act 2015 is on ‘repetition’ and ‘continuous engagement’ in behaviour that is controlling and coercive. Behaviour is more than a single act.
In the case of F v M, the court spent two weeks hearing evidence of the domestic abuse. This is unusual.
There is a requirement to provide evidence of coercive and controlling behaviour, and this needs to be gathered from lots of places, such as other family members, the police etc. It is not as simple as saying that the other party has been ‘controlling’.
The courts are overburdened with cases which means that there is an emphasis on dealing with matters proportionately and not allocating more court time than is felt necessary. Sometimes, due to time and resource pressures on our courts, cases of controlling and coercive behaviour can be missed, despite best efforts.
In 2019/2020 the family court received over 55,000 applications by parents for an order under the Children Act, many of these contained allegations of domestic abuse. It is difficult for the court to identify cases which contain bad behaviour and distinguish them from those in which domestic abuse is an element. This can be exaggerated when either or both parties act in person.
For solicitors it is a challenging task to manage a client’s expectations. Clients can sometimes struggle to understand why a court will not direct a detailed fact-finding hearing airing all the allegations made.
There is no obvious solution, but a better resourced family court would be a step in the right direction.
The above is accurate as at 4 January 2021. The information above may be subject to change during these ever-changing times.