by David Burrows
Terms such as ‘coercive control’ and ‘stranding’ are used increasingly freely by family lawyers. Most of us have a broad idea of what they mean, but what do they mean in law? Under the Domestic Abuse Bill, now before Parliament (already passed by the Commons), ‘domestic abuse’, at clause 1(3), is defined to include ‘(c) controlling or coercive behaviour’. Such behaviour is not defined by the Bill, though as will be seen there are other statutory references to the term. ‘Stranding’ is not mention in the Bill at all.
‘Domestic abuse’ is defined – of all unlikely places (ie not as part of domestic abuse legislation or rules at all; merely a practice direction) – in Practice Direction 12J Child arrangements and contact orders: domestic abuse and harm (PD12J) which is part of the rules which deal with children proceedings (not eg with domestic abuse). A practice direction, it will be recalled, is a form of quasi-legislation which is well down the legislative tree in terms of authority and effectiveness.
The term ‘domestic violence’ – but not ‘domestic abuse’ – is defined in statute in Legal Aid Sentencing and Punishment of Offenders Act 2012, Sch 1 para 12(9) (legal aid for victims of violence in family proceedings):
‘domestic violence’ means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.'
The term ‘coercive control’ occurs in 2012 Act and in the Domestic Abuse Bill (now approved by the Commons, awaiting approval in the Lords). It is not defined in either; but it may be assumed that the draftsman of ‘coercive behaviour’ relied on Serious Crimes Act 2015, s 76 whose main provisions are associated with each other'.
(1)A person (A) commits an offence if—
(a)A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b)at the time of the behaviour, A and B are personally connected,
(c)the behaviour has a serious effect on B, and
(d)A knows or ought to know that the behaviour will have a serious effect on B.
(2)A and B are ‘personally connected’ if—
(a)A is in an intimate personal relationship with B, or
(b)A and B live together and—
(i)they are members of the same family, or
(ii)they have previously been in an intimate personal relationship with each other….
(4)A's behaviour has a “serious effect” on B if—
(a)it causes B to fear, on at least two occasions, that violence will be used against B, or
(b)it causes B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities.
Meanwhile, PD12J provides a definition of ‘coercive behaviour’ and ‘controlling 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;
"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.'
So where does that leave the individual, an adviser or judge or family magistrate who wants to know if allegations amount to controlling or coercive behaviour or stranding. In SD v AFH (Appeal: Coercive and controlling behaviour: Inference or speculation) [2019] EWHC 1513 (Fam) (13 June 2019), Williams J considered an appeal by a father following findings of coercive control by him of a mother in CA 1989, Pt 2 (‘private law’) proceedings. Permission to appeal refused and an application to adduce fresh evidence was refused.
In the course of refusing permission, Williams J commented obiter on the term ‘coercive and controlling behaviour’ in the context of PD12J. He suggested:
'[46] The dividing line between behaviour which can properly be characterised as coercive or controlling and within PD12J and behaviour which does not cross that threshold is not a bright line. The PD12J definition by its own terms makes clear that to amount to coercive or controlling behaviour the behaviour will be well outside that which is acceptable within a relationship.'
The common features in the definitions in section 76 and PD12J are repeated behaviour (at least two incidents), fear of violence by the perpetrator and that which is ‘well outside that which is acceptable in a relationship’ (per Williams J).
But what of ‘stranding’? The term is not used in any of the statutory, or quasi-statutory, references above. In V v M (A Child) (Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] EWHC 466 (Fam), [2019] 4 WLR 38, Williams J – as its title suggests – dealt with a case where children were stranded by action of their father in India. However, he offers no definition of a word he uses sparingly in his judgment; save for describing what interim finding had been made in the case, in a reasoned judgment, as follows:
'[4] By his judgment and order Deputy High Court Judge Gupta QC made the following findings against the father:
(i) the child has at all times been habitually resident in the jurisdiction of England and Wales since birth,
(ii) the father intentionally deprived the mother and child of their passports as alleged by the mother,
(iii) the father intentionally stranded the child in India,
(iv) the father’s stranding of the mother and child in India was premeditated.'
What is striking about findings of coercion under section 76 is that, like any offence, their proof must be based on intention or guilty knowledge (mens rea). In the absence of proof of guilty intent surely there can be no coercion or ‘stranding’. That is so for the crime. Will it be the same for the civil misdemeanour in family proceedings? The law is not yet clear. The answer to this intent question remains to be seen.
