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Looking at the wider picture when assessing domestic abuse: Guidance from the High Court and Court of Appeal on the approach to allegations of coercive and controlling behaviour.

Sheraaz Hingora is a Barrister specialising in Immigration and Asylum law, Public law, Family law and false imprisonment claims at Clarendon Park Chambers.
29 Apr 2021

This article will provide a summary of two recent judgements from the Family Division of the High Court and Court of Appeal which provide helpful guidance to “coercive and controlling behaviour.” The article will then go on to consider the impact that these judgements may have on the preparation of immigration applications for Indefinite Leave to Remain as the victim of domestic abuse under DVILR of the Immigration Rules, as well as appeals or Judicial Review claims.

This article is structured in the following way:

  1. The Home Office definition of domestic violence and abuse, with particular focus on controlling and coercive behaviour.
  2. The Judgement of F v M [2021] EWFC 4.
  3. The Judgement of Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448
  4. Impact of these judgements on ILR Victim of Domestic Abuse applications.

The Home Office’s definition of domestic violence and abuse:

Domestic violence and abuse is not given meaning within the Immigration Rules however, it finds its meaning in the Home Office guidance (Victim of domestic violence and abuse, version 14 dated 5 February 2018). Domestic violence and abuse is given a wide definition, including coercive and controlling behaviour:

Domestic violence and abuse

Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. This can include, but is not limited to, the following types of abuse:

  • psychological
  • physical
  • sexual
  • financial
  • emotional”

Controlling and coercive behaviour are included in the guidance as “other forms of abuse.”

Controlling behaviour is defined as “a range of acts” designed to make a person subordinate or dependent by isolating them from sources of support; exploiting their resources and capabilities for personal gain; depriving them of the means needed for independence, resistance and escape; and regulating their everyday behaviour.

Coercive behaviour is defined as an act or pattern of acts of assault, threats, humiliation and intimidation; other abuse that is used to harm, punish, or frightened their victim.

The guidance emphasises that there is no distinction to be made between psychological (mental) abuse and physical abuse when assessing if a person has been a victim of domestic violence or abuse.

The Judgement of F v M [2021] EWFC 4 and what has been said about controlling and coercive behaviour:

In this judgement the Honourable Mr Justice Hayden was clear that significant incidents of coercive control could only truly be understood in the contexts of a much wider picture. Further, the Court acknowledged that term ‘coercive and controlling behaviour’ was unambiguous however, recognised that ‘coercion’ will usually involve a pattern of acts (i.e. assault, intimidation, humiliation and threats); and controlling behaviour involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. When assessing such behaviour, it was key to appreciate that a “pattern” or “series of acts” must be assessed cumulatively and rarely in isolation:

“4. … The nature of the allegations included in support of the application can succinctly and accurately be summarised as involving complaints of ‘coercive and controlling behaviour’ on F’s part. 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. 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. There has been very little reported case law in the Family Court considering coercive and controlling behaviour. I have taken the opportunity below, to highlight the insidious reach of this facet of domestic abuse. 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.”

In terms of appreciating the wider picture/context of abuse the judgement provides:

“It is crucial to emphasise that key to this particular form of domestic abuse is an appreciation that requires an evaluation of a pattern of behaviour in which the significance of isolated incidents can only truly be understood in the contexts of a much wider picture” [60].

“…What requires to be factored into the process is the recognition of the insidious scope and manner of this particular type of domestic abuse. The emphasis in Section 76 of the Serious Crime Act 2015, is on repetition and continuous engagement in patterns of behaviour. Behaviour, it seems to me, requires, logically and by definition, more than a single act. The key to assessment abuse in the context of coercive control is recognizing that the significance of individual acts may only be understood properly within the context of the wider behaviour. [102]”

The Honourable Mr Justice Hayden referred to his previous judgement (ex-tempore) of A County Council v LW & Anor [2020] EWCOP 50 in which he considered the statutory guidance published by the Home Office pursuant to Section 77(1) of the Serious Crimes Act 2015 which identified paradigm behaviours which were relevant to coercive and controlling behaviour such as:

  • Isolating a person from their friends and family
  • Depriving them of their basic needs
  • Monitoring their time
  • Monitoring a person via online communication tools or using spyware
  • 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
  • Depriving them access to support services, such as specialist support or medical services
  • 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
  • Control ability to go to school or place of study
  • Taking wages, benefits or allowances
  • Threats to hurt or kill
  • Threats to harm a child
  • Threats to reveal or publish private information (e.g. threatening to ‘out’ someone)
  • Threats to hurt or physically harming a family pet
  • Assault
  • Criminal damage (such as destruction of household goods)
  • Preventing a person from having access to transport or from working
  • Preventing a person from being able to attend school, college or University
  • Family ‘dishonour’
  • Reputational damage
  • Disclosure of sexual orientation
  • Disclosure of HIV status or other medical condition without consent
  • Limiting access to family, friends and finances

In this case controlling and coercive behaviour also included:

  1. Alienating friends and family (paragraph 45)
  2. Controlling money and food (para 51)
  3. Communication with the outside world was gradually reduced (para 52)
  4. Removal of physical freedom (paragraph 53)
  5. Progressive isolation (paragraph 52)
  6. Plundering of finances (paragraph 54)
  7. Financial exploitation (paragraph 55)
  8. Physical restraint (paragraph 56)
  9. Gratuitous emotional torture (paragraph 57)

In A County Council v LW & Anor [2020] EWCOP 50 the Court concluded that the list was not exhaustive and it was no more than a checklist which would prompt questioning and enquiry. In order for the answers to these lines of enquiry to be properly understood, it was necessary to view them in the context of a wider evidential picture:

“It is important to emphasise that this list is not exhaustive…Abusive behaviour of this kind will often be tailored to the individual circumstances of those involved. The above is no more than a check list which would prompt questioning and enquiring, the responses to which should be carefully recorded so that the wider picture emerges. That which might, in isolation, appear innocuous or insignificant may in the context of a wider evidential picture be more accurately understood” [22].

Therefore, in order to properly understand and assess the abuse one has suffered (within the context of controlling and coercive behaviour) it is necessary to take into account wider behaviour as well as the significant individual acts. Doing so ensures that facets of abuse which on their own may not appear to be striking, may be striking due to the wider context within which they occur. An example is given in the judgement at paragraph 62, referring to paragraph 22 of A County Council v LW & Anor [2020] EWCOP 50, which helpfully demonstrates the effect of wider context can have:

“As I remind myself of this passage, it triggers a recollection of M’s evidence which, at the time, did not strike me as carrying the significance that I now regard it as doing. She told me that F would frequently order vast quantities of food which he would not share and would tease both M and Y about. In the context of the more striking and serious abuse this detail was eclipsed but as a facet of the wider picture it now strikes me as yet another feature of control and on the most basic of levels.”

Judgement H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448:

In this Judgement the Court of Appeal also addressed the issue of whether, where domestic abuse is alleged in proceedings affecting the welfare of children, the focus should in some cases be on a pattern of behaviour as opposed to specific incidents. The Court of Appeal positively endorsed the judgement of F v M [2021] EWFC 4 and placed reliance specifically on paragraph 60 of that judgement.

The relevant points to take from this judgement are:

  1. It is possible to be a victim of domestic abuse over a shorter time (unspecified) (paragraph 30)
  2. A pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down. (Paragraph 31).
  3. Children can be harmed by a pattern of abusive behaviour. (paragraph 31)
  4. 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. (paragraph 44)
  5. The fact that there may no longer be any risk of assault in the future, because an injunction has been granted, or that the opportunity for inter-marital or inter-partnership rape may no longer arise, does not mean that a pattern of coercive or controlling behaviour of that nature will not manifest itself in some other, albeit more subtle, manner so as to cause further harm or otherwise suborn the independence of the victim in the future and impact upon the welfare of the children of the family. (paragraph 52)

Impact of these judgements on ILR Victim of Domestic Abuse applications:

These judgements are useful when preparing applications or appeals under the Victim of Domestic Violence route. The list of factors in F v M [2021] EWFC 4 will help those preparing applications/appeals to engage in a line of enquiry with the applicant/appellant which may identify behaviour amounting to controlling and coercive behaviour. However, it is important that an account is given of the relationship as a whole so as to ensure that the decision maker is able to appreciate the “wider picture.” It is certainly possible that facets of abuse which by themselves would not appear to be “striking” take on a different appearance when viewed in the context or “wider picture” of the abuse as a whole.

From experience marshalling evidence may be difficult in circumstances where the victim has left the family home out of desperation and has thus not retained relevant documents or taken relevant steps through police etc to call their abusers to account. In such circumstances, evidence may be scant however, obtaining a detailed statement from the applicant can prove to be a helpful starting point, and in light of these judgements, can be decisive in showing a pattern of abuse.

Clarendon Park Chambers is able to receive instructions directly from members of the public under the direct access scheme, as well as from solicitors and other professional clients. Enquiries can be made here.

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