David Burrows proposes a single court to deal with all domestic abuse remedies.
The Domestic Abuse Act (DAA) 2021 became law on 29 April 2021. It represented a political response to mounting concern at the continuing level of private and family abuse: in people’s homes, among couples married and unmarried, and towards children. There was an increased understanding of the extent to which controlling and coercive behaviour – mostly economic abuse – by the stronger (generally men) against the weaker features in such abuse.
For family lawyers (ie, those advising on family breakdown) in the 1970s, ‘domestic violence’ was dealt with alongside divorce proceedings (civil partnership was not brought into law until 2004). The publicity around Erin Pizzey’s refuge for ‘battered wives’ stressed that ‘violence’ included against members of unmarried couples. Political pressure at the time produced the Domestic Violence and Matrimonial Proceedings Act 1976, which enabled parties to issue what amounted to family proceedings (instead of – as they had to until then – issuing proceedings in tort for assault, battery, etc) to obtain a domestic violence injunction: that is a non-molestation order or occupation order (or both) for a ‘battered’ woman.
But what did the title of that Act – specifically ‘Domestic Violence’ – really mean then? In 1978, Lord Scarman explained this as he saw it in the House of Lords case of
Davis v Johnson [1979] AC 264 (the issue there was mostly the extent to which the court could have power to exclude a man from his home):
I conclude that the mischief against which parliament has legislated by section 1 of the [1976] Act may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children. Eviction—actual, attempted or threatened—is, therefore, within the mischief: likewise, conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home.
In reality, how much more need be said? Domestic abuse is a subject that, in real life, evades precise description. Too tightly defined, it can be manipulated by a man’s (defendants are mostly men) lawyers; too loose a definition, and injustice may – just may – follow. This article argues that the common law can define the subject. Indeed, the Court of Appeal said as much recently in Re H-N (see below).
Proceedings on the same facts
Defining domestic abuse is one thing; dealing with it in the courts is quite another. What is truly disappointing – from a lawyer’s point of view, and for one who is instructed to act for those involved in domestic abuse proceedings – is that the DAA 2021 procedurally does nothing to recognise that each single set of facts between two parties can give rise to a bewildering set of proceedings:
•the classic inter-cohabiting parties dispute proceeds under Family Law Act 1996 Part 4 for a non-molestation or occupation order in the family courts and under Family Procedure Rules 2010 SI No 2955 (FPR 2010) Part 10;
•for reasons that are obscure, the family law definition of domestic abuse is tucked away in the weak (in authoritative terms) form of a children proceedings practice direction (PD), namely FPR 2010 PD 12J para 4;
•there are the variety of criminal remedies available for prosecution of allegedly abusive family members, which proceed in the magistrates’ courts or Crown Court; and now including controlling behaviour under:
•the Protection from Harassment Act 1997, which produces its own quirky form of hybrid civil (county court) and criminal (magistrates’ courts) cause of action;
•county court proceedings can be taken for damages for battery, assault and (of course) harassment; and
•now, since the well-publicised
Depp v Heard case (in the US) and
Vardy v Rooney proceedings in the Queen’s Bench Division of the High Court (in England and Wales), there is the potential for defamation SLAPP (strategic lawsuit against [private] participation) proceedings for the wealthier man (see, for example,
Lee v Brown [2022] EWHC 1699 (QB)).
Thus, an additional layer of abuse can develop needlessly.
The author urges LAG and others concerned in this field to press for one court that tries the facts, with – this is the truly radical bit – the court deciding afterwards on the remedy from which help may be given to any complainant. This turns around the normal formula for trial of an issue, in which the complainant defines their form of action first and then takes proceedings in whichever court is appropriate: mainstream domestic abuse in the family courts; civil proceedings in the county court; criminal proceedings in criminal courts; and, for the well-off and court time-wasters, defamation in the High Court. And yet, through all these different proceedings, like a tattered refrain, the facts alleged remain the same.
Fact-finding: standard of proof – a domestic abuse tribunal
Family courts have developed the concept of a fact-finding hearing (something of a tautology, since hearings must always find facts, but that point can be let pass). If, in a new domestic abuse court or tribunal, a means could be found to deal with facts first on a single simple complaint form, and then remedies be provided thereafter, the scope for further abuse would be narrowed.
For example, in Lee v Brown, the couple were associating for around seven years, and lived together for two of those. Serious abuse was alleged by Ms Brown, but, because the family court deputy district judge appeared not to know the modern law, Ms Brown failed in her non-molestation order application (and faces a bill for £80,000 for Mr Lee’s costs). He failed in defamation proceedings, but found employment for a High Court judge and master for around five days up to that preliminary stage. Now the stage is set for the former couple to slug out their tortious differences in the county court, to the delight of any watching public and at the great expense of scarce court time. Again, the inevitable refrain: the facts alleged in each court are broadly the same.
A means will have to be found to accommodate the fact that, in law, the standards of proof in civil and criminal proceedings are different. Without violence to the fairness of any trial, the common law can surely accommodate that? Family courts routinely deal with contempt proceedings to the criminal standard. A domestic abuse court could surely find a way to deal with tort, criminal and family breakdown in one set of proceedings and each to an appropriate – in common law – standard of proof?
Proof of controlling and coercive behaviour
In any litigation, civil or criminal, the object of the application or prosecution is to obtain an order from the court (or a conviction) based on the evidence that applies. The court must consider all relevant facts and make findings on those facts that are in issue between the parties. It must apply the law to the facts as found or as agreed and come to a decision as to whether they justify the order sought by the applicant/claimant.
How can courts require parties to set out (plead) proof of domestic abuse in an individual case; and in particular how can controlling or coercive behaviour (‘controlling behaviour’), as a factor in domestic abuse, be proved and dealt with procedurally? What does such behaviour mean as a legal concept? And how is that meaning translated into practical and procedural outcomes in court? Though the 2010s saw an understanding of the corrosive effects of controlling behaviour in private relationships, and defined it in the DAA 2021, the surface of the procedural consequences of this is not even scratched by the Act.
‘Behaviour’: a course of conduct where parties are personally connected
Under DAA 2021 s1(3), controlling behaviour is included together with a variety of other forms of domestic abuse as defined under the Act:
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 … ;
(e)psychological, emotional or other abuse;
and it does not matter whether the behaviour consists of a single incident or a course of conduct.
As the final part of s1(3) asserts, ‘behaviour’ can be part of a variety of forms of abuse. Controlling or coercive behaviour, for example, are not intended to be singled out for particular procedural treatment. Their definition by statute is affirmed by importing the definition from Serious Crime Act (SCA) 2015 s76, where ‘Controlling or coercive behaviour in an intimate or family relationship’ as a criminal offence is defined – as relevant here – as:
(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.
Controlling behaviour: ‘a much wider picture’
In
F v M [2021] EWFC 4, Hayden J considered a course of controlling behaviour and made comments as to how allegations of such behaviour should be dealt with:
In A County Council v LW & Anor
[2020] EWCOP 501February 2021 Legal Action 25. I gave an ex tempore judgment in which I highlighted the need for vigilance … key to this particular form of domestic abuse is an appreciation that it requires an evaluation of a pattern of behaviour in which the significance of isolated incidents can only truly be understood in the context of a much wider picture (para 60).
In the same paragraph, he referred to the list in the statutory guidance framework (see above) that is attached to its para 12 (page 4), which includes a number of elements:
[T]he perpetrator may limit space for action and exhibit a story of ownership and entitlement over the victim.2So many such documents identify a claimant as a ‘victim’, where the complaint is not yet proved. Such behaviours might include: •isolating a person from their friends and family;
[…]
•monitoring their time;
[…]
•taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep;
[…]
•repeatedly putting them down such as telling them they are worthless;
•enforcing rules and activity which humiliate, degrade or dehumanise the victim;
•forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities;
•financial abuse including control of finances, such as only allowing a person a punitive allowance;
•threats to hurt or kill;
•threats to a child;
•threats to reveal or publish private information (e.g. threatening to ‘out’ someone);
•assault …
A few weeks later, in
Re H-N and others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 (see June 2021
Legal Action 24), the Court of Appeal considered four appeals. How should the courts deal procedurally with allegations of coercive control? Early in the judgment, the court commended Hayden J’s approach in
F v M, quoting (at para 29) para 4 of his judgment: ‘In the family court, that expression is given no legal definition. In my judgement, it requires none. The term is unambiguous and needs no embellishment.’ Despite these comments and the consideration of the term in the statutory guidance framework, the court then went on to cite Hayden J’s definition, which will assist family courts:
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, humiliation and threats … 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 … My strong impression, having heard the disturbing evidence in this case, is that it requires greater awareness and, I strongly suspect, more focused training for the relevant professionals (para 4 of F v M, quoted at para 29 of Re H-N and others).
Proof of controlling behaviour: pleading a case
The Court of Appeal in Re H-N and others considered how domestic abuse claims should proceed, especially where controlling behaviour might be in issue:
For any part of the legal process to function fairly and efficiently, there is a need for material that is to be placed before a court to be organised and structured so that all involved in the court process may understand its significance. The need for, in lay terms, an agenda, or in terms of criminal law, a charge-sheet or indictment and, in terms of a civil action, ‘pleadings’, is seen as essential both in terms of allowing a party against whom a case is being brought to understand what is being said against them, and, secondly, on grounds of basic efficiency (para 41).
A court must concentrate on the wider context of the alleged behaviour. Had there ‘been a pattern of coercive and controlling behaviour’ (para 44; emphasis in original)?
Abusive, coercive and controlling behaviour is likely to have a cumulative impact upon its victims which would not be identified simply by separate and isolated consideration of individual incidents (para 44).
There is no statutory requirement for a fact-finding hearing. It is a term that has developed in children proceedings. An applicant must prove their case and the court must make findings on disputed facts. Central to this is the need for an applicant clearly to set out the ‘cumulative impact’ of the alleged abuse. The court will then identify those facts that are relevant to the issues in the case, which must then be subject to formal findings as an essential part of the court’s disposal of an application.
The author proposes that this proof could be of one set of facts, and that one court could dispose of remedies – civil and criminal – to achieve justice between the (formerly) related parties and any dependent children of theirs.