A reflection on 10 years of the offence of controlling and coercive behaviour

Ten years ago this year, section 76 of the Serious Crime Act 2015 came into force introducing the offence of controlling and coercive behaviour (CCB). By design, CCB was meant to capture the subtle, but pernicious, behaviour of abuse which fell outside the scope of alternative offences. Creating an offence to capture behaviour of this nature required a wide net and, in many cases, the real limit to the scope of the offence is more readily found in the additional requirement that A’s controlling and coercive behaviour must have had a ‘serious effect’ on B. 

There is an increasing range of guidance as to behaviour that may be controlling and coercive, which can be found in: the CCB statutory guidance; the Crown Prosecution Service (CPS) legal guidance; the Domestic Abuse Act statutory guidance; and the College of Policing Authorised Professional Practice (APP) for domestic abuse. Understandably and necessarily, the behaviour listed in the guidance is not exhaustive. To have its desired effect, the offence must be sufficiently flexible to be applied to the particular dynamics of any set of circumstances. As explained in the APP, ‘[Controlling and coercive] behaviour is usually personalised, in that it means something to the victim even when that meaning is not apparent to anyone else’.

In the context of the family court, in the case of F v M [2021] EWFC 4 (Fam), Mr Justice Hayden broke down the definition of CCB (as set out in the Family Procedure Rules, Practice Direction 12J) in the following way (emphasis as in the original):

Coercive Behaviour:

i.  a pattern of acts;

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

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

Controlling Behaviour:

i.  a pattern of acts;

ii.  designed to make a person subordinate and/or dependent;

iii.  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.

In addition to this guidance, Mr Justice Hayden observed that, “[…] it is crucial to emphasise that 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.”

In the decade since the offence came into force, there has also been an expansion in the reach of the offence: (1) as of 29 June 2021 (R v NS [2023] EWCA Crim 1409, sets out the considerations as to the general (extra)territorial extent of the s76 offence) (and by way of s76A), a UK national (or a person habitually resident in England and Wales) can commit the offence of CCB for behaviour which takes place in a country outside of the United Kingdom; and (2) as of 5 April 2023, amending the definition of ‘personally connected’ to, ‘[…] [bring] within the ambit of the offence controlling or coercive behaviour by a former intimate partner that takes place post-separation or by a family member who does not live with the victim.’

In addition to the potential breadth of the offence, there is a proactive response from policing.  This reflects the fact that seemingly ‘low-level or minor’ events may amount to a pattern of inappropriate or unlawful behaviour. All incidents of domestic abuse must be investigated fully and recorded properly.

However, the potential breadth of the offence brings its own challenges. The police receive a call about domestic abuse every 30 seconds and research suggests that frontline officers are more confident in evidencing physical harm rather than CCB. At an early stage, it will be challenging for officers to distinguish between behaviour which is, or may be, CCB and behaviour which is unpleasant, but not criminal. As put by the CPS, ‘There might be confusion about where the “appropriate” dynamic of a relationship ends and where unlawful behaviour begins’. However, the CPS guidance also refers to the APP which provides a steer as to the correct approach to identifying abusive behaviour: ‘In many relationships, there are occasions when one person makes a decision on behalf of another, or when one partner takes control of a situation and the other party has to compromise. The difference in an abusive relationship is that decisions by a dominant partner can become rules that, when broken, lead to consequences for the victim.’ 

The practical effect of the wide net is that CCB will often form a part of the initial stages of a domestic abuse investigation. This can cause particular difficulties where there are concurrent family proceedings. 

If an individual is arrested by the police for CCB (and any other offences), they are likely to have no notice of this. They will then be taken to a police station and will be entitled to legal advice. The discombobulation following an arrest cannot be overstated. The individual may meet their solicitor for the first time while detained and sometimes only an hour or hours before the interview. It is unrealistic to think that anyone in that position would be able to give a reflective and holistic account of the nuances and dynamics of their relationship. There is, then, a plain tension between an individual’s rights in a police investigation and their need to engage in family proceedings. These difficulties are then exacerbated by the current delays in police investigations and the criminal justice system in general.

Family proceedings 

The impact of any criminal investigation when there are concurrent family proceedings can be difficult to navigate. If an application for contact needs to be made on behalf of a parent subject to criminal investigations, one of the first things family practitioners need to ascertain is whether there are bail conditions preventing contact with the complainant. Quite often bail conditions include a prohibition on the defendant contacting the complainant directly or indirectly. It could therefore be a breach of the bail conditions for solicitors to write to the complainant seeking to arrange contact and, thus, an application may need to be made within criminal proceedings to permit contact through solicitors for the purposes of arranging contact with children. That in itself can take time.

It will also be important to try to get an idea of the stage at which the criminal investigation is and how long it will take to reach an outcome. The existence of a criminal conviction will be regarded differently to allegations only or a case with a ‘no further action’ outcome. That is not to say, however, that allegations which have not resulted in a prosecution will not be relevant to any family proceedings.

When an allegation of CCB, in particular, is made within family proceedings, the court will need to determine, as quickly as possible, and in accordance with Family Procedure Rules Practice Direction 12J, paragraphs 16 and 17, whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegations. A fact-finding hearing may be required:

1. to provide the factual basis of any welfare report;
2. in order to provide a basis for an accurate assessment of risk;
3. before it can consider any final welfare-based order(s) in relation to child arrangements;
4. or before it considers the need for a domestic abuse intervention.

A fact-finding hearing may also be required to enable an assessment of the factors at paragraphs 36 and 37 of Practice Direction 12J. These include: 

1. consideration of any harm which the child and its parent have suffered or are at risk of suffering;
2. consideration of the fact that the court should only make an order for contact if it is satisfied that the physical and emotional safety of the child, and the parent with whom the child is living, can, as far as possible, be secured before, during and after contact;
3. an assessment of whether the parent with whom the child is living will be subjected to further domestic abuse by the other parent;
4. an assessment of the effect of the domestic abuse on the child and on the arrangements for where the child is living;
5. an assessment of the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;
6. an assessment of whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;
7. consideration of the behaviour likely to be displayed during contact and its effect on the child; and
8. an assessment in respect of the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.

A fact-finding hearing may therefore be required before a welfare report can be prepared and before it can consider any welfare-based order about child arrangements. The court may also want the determination before it can consider the need for domestic abuse-related activities, such as attendance at a domestic violence perpetrator programme.

One of the leading cases dealing with fact-finding hearings in respect of domestic abuse allegations is Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448), which sets out that the courts must consider whether such a hearing is necessary and proportionate. When a fact-finding hearing is ordered, only those allegations that are necessary to support the processes listed in paragraphs 16 and 17 of Practice Direction 12J, should be determined.

When it comes to allegations of CCB, in particular, there is often tension between preventing a hearing from becoming unnecessarily lengthy and ensuring that relevant evidence of domestic abuse, particularly relating to a pattern of CCB, is put in context and considered by the court. With CCB allegations, in particular, it is often not appropriate to use a Scott schedule, in which each allegation is listed and instead narrative statements may be more suitable (see also AA v BB [2021] EWHC 1822 (Fam)). 

The court will also consider whether there is other available evidence that provides a sufficient basis on which to proceed and, specifically, whether there are criminal proceedings in relation to the same allegation. Where there are concurrent criminal proceedings, it is important to consider whether a party has made admissions within those proceedings which provide sufficient basis on which to proceed in family proceedings.

At all stages within concurrent family and criminal proceedings, the accused will need to be careful not to make admissions in one set of proceedings that could later be detrimental to, or later relied on, in the other.

Outcomes 

There has been some suggestion that the CPS, ‘[…] may be risk averse when charging domestic abuse-related offences – particularly where coercive and controlling behaviour is involved – with a high threshold being applied’ and that, for offences like CCB, ‘[…] the investigation process and management of cases through the criminal justice system is particularly disappointing.’

At first blush, the statistics set out in the policy paper, Shifting the scales: Transforming the criminal justice response to domestic abuse (22 January 2025) would seem to support this proposition. In the 12 months to March 2024, 44,212 CCB offences were recorded by the police, with only 3,999 reaching a first hearing in a magistrates’ court. The cited conviction rates (745) are even lower (and for a different period). As is acknowledged in the report, the figures do not align, but they do provide some illustration of the vast difference between recorded offences, prosecutions and convictions. 

In and of itself, a vast difference between the number of offences recorded and the number of charges brought does not mean that there has been a failing. As noted at the outset, CCB has a wide and non-exhaustive definition. This makes it unsurprising that there is a divergence between the number of offences recorded and the number of charges brought.  As CCB enters its second decade, a continued challenge is for there to be a settled view on its place in the prosecution’s armoury. When introduced, CCB was intended to be, ‘[…] an additional charging option where there is continuous or repeated coercive or controlling conduct […].’ As an additional charging option, there can be little doubt that CCB has strengthened the criminal justice system response to domestic abuse; however, it is no panacea. 

Finally, in family proceedings, the family court will ultimately need to ensure that, where violence or abuse is admitted or proven, any child arrangements order protects the child’s safety and wellbeing, as well as that of the parent with whom they are living, and does not expose them to a risk of further harm. The court must be satisfied that any contact with a perpetrator of abuse is safe and in the best interests of the child.