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Controlling and coercive behaviour in child arrangements cases18th February 2021 Family Law
January saw the live streaming of an absolutely crucial case in the Court of Appeal. The court heard four appeals raising similar issues about the way patterns of domestic abuse are approached in cases involving arrangements for children (previously known as residence and contact). The availability of the live stream lit up legal Twitter and made national news. The judgment is likely to result in updated guidance on how to approach child arrangements cases where domestic abuse is raised as an issue. The court will have to navigate a fundamental tension between capturing the reality of an abusive relationship, which often cannot be reduced to 3 or 4 “most serious” incidents, and the value of establishing whether a given allegation is or is not proven.
Quoted in the Law Society Gazette, Sir Andrew McFarlane, President of the Family Division and one of the judges sitting in the Court of Appeal, recalled how times have changed since the last time the Court of Appeal reviewed the approach of the courts to cases involving what was then more likely to be termed “domestic violence”.
“‘If there was violence, it would be taken seriously in the case. If there seemed to be a minor exhibition of violence, it was probably minimised by the court. We have moved a long way from that. We now have more understanding that you can live in an abusive relationship where there is no violence at all.”
The law criminalising “controlling or coercive behaviour in an intimate or family relationship” came into force at the end of 2015. The law aims to address patterns of abusive behaviour over an extended period where the use or threat of violence is not necessarily a factor.
Survivors may have been financially disempowered, isolated from friends and family, and crushed into believing that they cannot make decisions on their own. Coercive and controlling behaviour can continue after separation and have an impact upon making arrangements for children. These behaviours can be perpetrated by men or women in same or opposite sex relationships and can be as damaging as physical violence.
Disputed allegations of coercive control frequently feature in our practice. When taken in context, what could – in a healthy relationship - be entirely benign, even caring behaviours emerge as part of a long term campaign designed to strip away autonomy and foster isolation and dependence on the abuser. Another case reported early this year highlighted the detailed work required to understand the pattern of behaviour of a controlling and coercive individual, in this case towards two unconnected women. It is hard to imagine a more chilling picture than that painted by Mr Justice Hayden in F v M  EWFC 4.
We are painfully aware of the potential for allegations of coercive and controlling behaviour to be interpreted as a “tactic” to keep a parent out of their child’s life. The parent who has experienced abuse may be accused of coaching the child to exhibit distress at the prospect of seeing the other parent. There may be real concerns, based on experiences of their former partner, which are often dismissed as attempts to frustrate contact or alienate the child or met with “gaslighting”.
Any guidance coming out of the Court of Appeal will reverberate throughout the family justice system and this judgment – when it is published – is going to make a big impact. Domestic abuse comes in many forms and this must be recognised when decisions are being made about children’s lives.