[2025] EWHC 1648 (Fam)

Section 1 of the Domestic Abuse Act 2021 (‘the 2021 Act’) defines domestic abuse as follows:

“(2)

Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if—

a.

A and B are each aged 16 or over and are personally connected to each other, and

b.

the behaviour is abusive.

(3)

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 (see subsection (4));

e.

psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident or a course of conduct.”

The definition is widely drawn, best illustrated by the inclusion in section 1(3)(e) of the 2021 Act of ‘other abuse’. This enables the court to reach the conclusion that a person’s behaviour is abusive even if it does not fall within any of the specific categories of abuse identified.

Section 76 of the Serious Crime Act 2015, which was amended by section 68 of the 2021 Act, makes it a criminal offence for a person to perpetrate controlling or coercive behaviour in an intimate or family relationship. Section 76(1) provides that:

“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.”

The expression ‘personally connected’ is defined in subsection (6).

Subsection (4) sets out the circumstances in which A’s behaviour will have ‘a serious effect’ on B: These are:

“(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.”

Subsection (5) provides that “[f]or the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.”

The Family Procedure Rules 2010, PD12J, para 3 defines controlling and coercive behaviour as follows:

“‘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.”

In Re H-N [2021] EWCA Civ 448 and K v K [2022] EWCA Civ 468 the Court of Appeal addressed the approach to be taken by the courts to disputed allegations of domestic abuse. Amongst other matters it was established in those cases that:

In July 2022 the Home Office published statutory guidance in respect of domestic abuse. It does not have statutory force, but the publication is nevertheless a useful guide for practitioners in highlighting the different aspects of domestic abuse. My attention has been drawn by Dr Proudman to paragraphs 50-52, 68-69 and 99-100 in particular. Paragraph 99 contains the important observation that:

“There is never any justification for perpetrating domestic abuse and although the perpetrator and others may blame the victim for causing their behaviour, it is never the victim’s fault. Some perpetrators do not recognise that their behaviour constitutes domestic abuse, however, all perpetrators are responsible for their behaviour and should be held accountable for it.”

Although the parties were generally in agreement as to the relevant legal principles, one matter about which they disagreed was whether in order to establish certain types of abuse, it is necessary to show ‘intent’ on the part of the perpetrator.

On behalf of the mother, Dr Proudman submitted, that it is open to the court to make findings of coercive or controlling behaviour even if the perpetrator did not intend by his behaviour to act abusively. She referred me to GK v PR [2021] EWFC 106, where Peel J said at paragraph 40:

“I am troubled also that the judge at para 30 refers to many of the incidents as being "minor or even petty, but the real question for any future court having regard to the child's welfare is whether the words or actions alleged show a course of conduct by which [PR] is deliberately [my emphasis] coercive, controlling and undermining of [GK] so that domestic abuse becomes a serious issue in this case". I cannot accept that intentional misconduct is a pre-requisite for a finding of abusive behaviour. In this regard, I was referred to Re T [2017] EWCA Civ 1889 in which it was said at para 42 that: ‘…none of the authorities require that a positive intent to molest must be established’.” (emphasis in the original)

I was also referred by Dr Proudman to Traharne v Limb [2022] EWFC 27 where Cohen J said at paragraph 28:

“The parties agreed that in considering the allegations of behaviour I should approach the matter in this way:

i)

H's behaviour to fit within the definition of coercive and controlling behaviour must objectively meet that description. It was immaterial whether he intended his behaviour to have an effect on W; the test for the court is whether objectively his behaviour was coercive and controlling…”

Conversely, Ms Markham KC and Ms Whelan on behalf of the father and Ms Cawthray Stern on behalf of NYAS submitted that the observations made at first instance in those authorities were inconsistent with the Court of Appeal decision in Re H-N, where the court specifically endorsed PD12J, which contains definitions of coercive and controlling behaviour. It was submitted that the inclusion of the words ‘that is used to’ and ‘designed to’ within those definitions import an element of intent as an ingredient of these types of abusive behaviour. It was further submitted that the observation at paragraph 32 of Re H-N that ‘much will turn on’ the intention of the perpetrator underlines the point, as do the earlier observations of Peter Jackson LJ at paragraph 61 of Re L (cited above).

It is unnecessary for the purposes of this appeal to determine this issue and I decline to do so as I consider that fuller argument would be needed in order to come to a concluded view. I would observe that both Re H-N and Re L were concerned with the definition of domestic abuse in PD12J as opposed to its meaning under the Domestic Abuse Act 2021, which had not come into force when those cases were decided. Plainly, guidance set out in a practice direction cannot have the effect of narrowing the definitions of terms contained in a statute.

As I have recorded above, the definition of abusive behaviour under the 2021 Act was drawn widely, its overriding purpose being to consign to history the notion that abusive behaviour was confined to previously recognised categories of abuse such as physical abuse.

As I set out above, section 76 of the 2015 Act was amended by the 2021 Act. Pursuant to that section, a person can commit a criminal offence if they perpetrate coercive or controlling behaviour against a connected person and ‘ought to know’ that their behaviour has a serious effect on that person. This lends support to the arguments advanced by Dr Proudman.

Conversely, Ms Markham KC and Ms Cawthray Stern make the important counter-argument that the court should not, in this context, attach weight to the manner in which a statutory provision creating a criminal offence has been drawn. They further submit findings of abuse are made in order to establish a factual basis for assessing the risk which a perpetrator may pose to the other parent and the child. The intentional elements of coercive and controlling behaviour are integral aspect of these forms of abuse and highly material to any assessment of risk. Ms Cawthray Stern submits that a distinction can be drawn between these specific forms of abusive behaviour and other types of abuse such as verbal or emotional abuse in relation to which the intention of the perpetrator may be immaterial to the question of whether the behaviour is abusive.

As I have said, a determination on these arguments should await a case when the points raised are material to the decision.