Twenty years ago, a survivor of domestic abuse seeking advice on an injunction would frequently find themselves being asked whether they could show evidence of bruises, or to rely only on the most serious incidents of violence. The understanding of domestic abuse has hugely improved, both within the legal system and more widely. Coercive and controlling behaviour is now understood to be one of the most invidious forms of abuse within personal relationships, and became a criminal offence a decade ago with the passing of the Serious Crime Act 2015. However, despite improvements in recent years, for many survivors of abuse, the law still does not go far enough, and the implementation of such provisions falls short. A decade on from the Serious Crime Act, is the issue a wider one?
Coercive and controlling behaviour
Coercive and controlling behaviour can be considered as a pattern of purposeful behaviour, intended to control or coerce the person being subjected to the abuse, or to harm, punish or frighten them. One of the features of coercive and controlling behaviour is that the individual acts tend to seem quite innocuous in isolation, but when added together, create a regime according to which the survivor of the abuse knows if they do not comply with what is expected of them, there will be adverse consequences. The intention of the behaviour is usually to make the victim subordinate and/or dependent. This is part of what makes coercive and controlling behaviour so invidious and so difficult to identify.
In the context of family law, Hayden J examined the concept of coercive and controlling behaviour in F v M [2021] EWFC 4, where he provided a useful summary, subsequently commended by the Court of Appeal in Re H-N [2021] EWCA Civ 448. He noted that:
“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. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. 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.”
He also acknowledged that many of the acts making up the pattern of behaviour may seem relatively minor in isolation, but which, when taken together, can amount to abuse.
The survivor will often become isolated from friends, family and support networks, made to feel that they are alone and that no-one will believe them if they seek help.
The effect of the Serious Crime Act 2015
Until relatively recently, coercive and controlling behaviour was not a criminal offence, despite the devastating impact it can have on survivors.
The Serious Crime Act 2015 created the offence of engaging in coercive or controlling behaviour, providing that a person commits an offence if they repeatedly or continuously engage in behaviour towards another that is controlling or coercive, during which time they are ‘personally connected,’ that the behaviour has a serious effect on the victim and the perpetrator knows or ought to know that it would have a serious effect.
Has the criminalisation of controlling and coercive behaviour had an impact?
Since the introduction of the Act, there has been a significant increase in the number of offences recorded by the police, from 4,246 in 2017 to 41,626 in the year ending March 2022. Since April 2023, the categories of those classed as ‘personally connected’ has been widened to include those who are family members, or those who are no longer living together and where the offending behaviour persists after a relationship has ended, bringing a significantly wider range of abuse into the scope of the offence, which seems likely to impact the number of incidents recorded as offences by the police.
Despite these indications that our society has recognised the offence and is using the protections provided by the legislation, the charge rate for the offence remains low, at 3.7% of recorded crimes for the year ending March 2022, compared to 6.7% for all domestic abuse-related offences. One reason suggested for this is a perceived evidential difficulty in proving coercive and controlling behaviour and, in particular, that it has crossed the threshold of criminality. Someone who suggests that their partner curbs their expenditure may be acting innocently, where, for example, the couple is saving for a shared investment. Suggesting that a partner wears something different can be innocuous. It is to be noted that it is a defence to show that the suspect believed that they were acting in the victim’s best interest and that the behaviour in all the circumstances was reasonable. The behaviour needs to be looked at in the context of each particular relationship as a whole, which can make it extremely difficult to identify a tipping-point beyond which the behaviour has become criminal. There are also more practical obstacles, such as victims who are unwilling to support a prosecution.
Controlling and coercive behaviour may also appear similar to other offences, such as stalking, harassment, or allegations of physical assault or sexual offences. Due to the difficulties identifying and proving controlling and coercive behaviour, in practice, if the allegations of coercive and controlling behaviour have a significant degree of overlap with other offences, the police investigating the allegations may consider it easier to proceed with a prosecution in respect of those other allegations instead.
Protective measures
Where a party has been convicted of an offence, the court may make a restraining order against the defendant pursuant to S.360 of the Sentencing Act 2020. Even where a defendant has been acquitted, in certain circumstances a restraining order may be made pursuant to S.5A of the Protection from Harassment Act 1997.
Where a defendant is acquitted (ie, proceedings are dismissed following evidence at trial or the prosecution offers no evidence), the court may make an order if it considers it necessary to do so to protect a person from harassment by the defendant.
In the family court, a survivor of abuse may obtain a non-molestation order pursuant to S.42 of the Family Law Act 1996, which prohibits the respondent (who must be ‘associated’ with the applicant) from molesting the applicant or a relevant child. A breach of a non-molestation order is a criminal offence, as well as being a contempt of court. The class of ‘associated’ persons includes current and ex-partners, relatives and those who live in the same household (otherwise than by reason of one being the other’s employee, tenant, lodger or boarder). Non-molestation orders can be flexible and include provisions that prevent contact between the parties, posting of certain material on social media or, in some circumstances, attendance at a particular address. The Protection from Harassment Act 1997 permits injunctive orders to be made in certain circumstances, even when the parties are not associated with each other.
In addition, the Domestic Abuse Act 2021 created domestic abuse protection orders (DAPOs), which are currently being piloted in a number of court centres. They are a successor to the more limited domestic violence protection orders and are intended to be a flexible protective remedy. They can be obtained by the police in magistrates’ courts or by victims or, with the permission of the court, by third parties in the family court. The extension of the category of potential applicants to third parties is intended to reduce the pressure on survivors of abuse to make the application themselves. A DAPO does, however, have certain limitations, such as that it may only be made in favour of a victim aged 16 or over (whereas a non-molestation can be made in favour of a ‘relevant child’ of any age).
Are they enough?
While there are a variety of protective measures available to survivors of abuse, victims of coercive and controlling behaviour have pointed to the court process itself having been used as a form of continuing control, for example where there are vexatious proceedings in the family court.
Over the last several years, there have been a series of decisions from the higher courts in the family division, such as F v M, emphasising the importance of understanding whether there has been a pattern of coercive and controlling behaviour by the perpetrator of abuse, and, if so, how that has impacted on the family. Where domestic abuse is alleged in Children Act 1989 proceedings, the court is required to consider safeguarding and whether, if that abuse is denied, a fact-finding hearing is required. Where abuse has taken place, there is a greater understanding of the need to ensure that any time spent between any children of the relationship and the perpetrator of abuse is safe, both for the children and the survivor of that abuse.
However, a report published by a working party of Resolution, a multi-disciplinary community of family justice professionals, noted concerns among the professionals surveyed that domestic abuse continues during financial proceedings, including through perpetrators refusing to provide disclosure of assets, withholding access to sufficient funds to meet legal fees and failing to abide by court orders. In cases involving children, perpetrators have been known to engage in ‘lawfare,’ bringing repeated spurious applications in order to exhaust the survivor of abuse both financially and emotionally. A report in 2023 by the Domestic Abuse Commissioner on the family court and domestic abuse noted that perpetrators can use the court as a tool of post-separation coercive control by keeping the survivor engaged in aggressive, expensive and stressful litigation. Survivors stated that allegations of controlling and coercive behaviour were still not taken seriously by the courts and the Children and Family Court Advisory and Support Service otherwise known as Cafcass, or not regarded as significant enough to constitute domestic abuse compared to physical abuse.
Debts arising as a result of coercive and controlling behaviour
Economic abuse is a common aspect of coercive and controlling behaviour, and can take a variety of forms, from restricting a victim’s access to work or to their own funds, through to coercing them into taking on debt. The survivor can be left with crippling debt and a decimated credit rating.
Where a survivor is faced with indebtedness, the fact that those liabilities arose from controlling and coercive behaviour is not of itself sufficient to relieve the survivor from having to repay. However, the Financial Conduct Authority has provided guidance for firms on the treatment of vulnerable customers, which sets out an expectation that firms should be flexible in their responses to those who are vulnerable.
In some circumstances, it may be possible to challenge a liability, such as where the financial institution was on notice of the risk of undue influence, but whether such a challenge can be made will be fact specific. Ordinarily, where one party is acting as a guarantor for another in a non-commercial setting, the lender is treated as being on notice of the risk of undue influence and must follow certain steps, such as insisting on their obtaining legal advice to reduce the risk of the vulnerable party being induced to enter into a transaction from which they will not benefit. This was not the position in cases where parties obtain a joint loan, from which they would both benefit. However, in the recent decision in Waller-Edwards v One Savings Bank Plc [2025] UKSC 22, the Supreme Court considered the position where a mortgage was taken out in joint names, where the lender was aware that a not insignificant portion of it was to be used to pay off the sole debts of one party. The Supreme Court determined that where a lender was aware that more than a minimal element of borrowing was to discharge the debts of only one borrower, the lender would also be considered to be on notice of the risk of undue influence. The decision is a welcome one in providing better safeguards for victims of economic abuse who are being pressured to take out loans to meet their partner’s debts, albeit it will not assist in situations where, for example, the lender is not aware that part of the loan is for the sole benefit of one party.
A developing picture?
Since the introduction of the offence of coercive and controlling behaviour in 2015, there has been both a growing understanding of the nature of such abuse by the courts and a better awareness of it among the public. Many developments, such as the widening of the scope of the Serious Crime Act 2015 offence by removing the ‘living together’ requirement and the introduction of DAPOs will serve to better protect survivors.
However, there remain significant areas in which survivors report that they are not sufficiently supported and, unfortunately, many survivors of abuse do not feel able to seek help or fear that they will not be taken seriously unless they can demonstrate physical abuse. Ultimately, the legal remedies available where abuse has taken place are unlikely to prevent it occurring in the first place. It is therefore important to continue to try and improve education and wider support, both for survivors of abuse and for those who want to change their behaviour.
Copyright & permissions
b89ee.jpg&w=3840&q=60)
