Cafcass and their Assessment of Coercive Control Tool

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The Crown Prosecution Service have this to say about Controlling or Coercive Behaviour:

3. Understanding Controlling or Coercive Behaviour

In September 2012 the Government published guidance which may assist prosecutors to better understand the nature and features of controlling or coercive behaviour.

Domestic violence and abuse is defined as:

“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 encompass, but is not limited to, the following types of abuse: psychological, physical, sexual, financial and emotional.” [Domestic abuse guidelines for prosecutors]

The definition is supported by the following explanatory text:

“This definition, which is not a legal definition, includes so called ‘honour’ based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.”

The Government definition also outlines the following:

  • Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim
  • Controlling behaviour is a range 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

3.1 Section 76 of the Serious Crime Act 2015 – Controlling or Coercive Behaviour in an Intimate or Family Relationship

Section 76 of the Serious Crime Act 2015 created a new offence of controlling or coercive behaviour in an intimate or family relationship. Prior to the introduction of this offence, case law indicated the difficulty in proving a pattern of behaviour amounting to harassment within an intimate relationship (the Statutory Guidance cites the following cases – Curtis [2010] EWCA Crim 123 and Widdows [2011] EWCA Crim 1500).

The new offence, which does not have retrospective effect, came into force on 29 December 2015.

An offence is committed by A if:

  • A repeatedly or continuously engages in behaviour towards another person, B, that is controlling or coercive; and
  • At time of the behaviour, A and B are personally connected; and
  • The behaviour has a serious effect on B; and
  • A knows or ought to know that the behaviour will have a serious effect on B.

A and B are ‘personally connected’ if:

  • they are in an intimate personal relationship; or
  • they live together and are either members of the same family; or
  • they live together have previously been in an intimate personal relationship with each other.

There are two ways in which it can be proved that A’s behaviour has a ‘serious effect’ on B:

  • If it causes B to fear, on at least two occasions, that violence will be used against them – s.76 (4)(a); or
  • If it causes B serious alarm or distress which has a substantial adverse effect on their day-to-day activities – s.76 (4) (b).

For the purposes of this offence, behaviour must be engaged in ‘repeatedly’ or ‘continuously’. Another, separate, element of the offence is that it must have a ‘serious effect’ on someone and one way of proving this is that it causes someone to fear, on at least two occasions, that violence will be used against them. There is no specific requirement in the Act that the activity should be of the same nature. The prosecution should be able to show that there was intent to control or coerce someone.

The phrase ‘substantial adverse effect on Bs usual day-to-day activities’ may include, but is not limited to:

  • Stopping or changing the way someone socialises
  • Physical or mental health deterioration
  • A change in routine at home including those associated with mealtimes or household chores
  • Attendance record at school
  • Putting in place measures at home to safeguard themselves or their children
  • Changes to work patterns, employment status or routes to work

For the purposes of the offence A ‘ought to know’ that which a reasonable person in possession of the same information would know – s.76 (5).

A person guilty of an offence under this section is liable:

  • On conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
  • On summary conviction, to imprisonment for a term not exceeding 6 months, or a fine, or both.

Prosecutors are reminded that:

  • For an either way offence, it is not necessary for the last incident to have occurred within the previous six months;
  • Offending within a domestic abuse context is an aggravating factor because of the abuse of trust involved;
  • Appropriate ancillary orders can be applied for upon sentence or acquittal e.g. restraining orders. Prosecutors should liaise with the police to seek the views of the victim before an application is made.

Controlling or coercive behaviour towards another can include or be committed in conjunction with a range of other offences including offences under: the Malicious Communications Act 1998; the Sexual Offences Act 2003; and the Offences Against the Person Act 1861. See the Home Office Statutory Guidance and CPS Domestic Abuse Legal Guidance for examples offences that might apply to domestic abuse.

3.2 Relevant Behaviours

Prosecutors are advised that a pattern of controlling or coercive behaviour can be well established before a single incident is reported. In many cases the conduct might seem innocent – especially if considered in isolation of other incidents – and the victim may not be aware of, or be ready to acknowledge, abusive behaviour. The consideration of the cumulative impact of controlling or coercive behaviour and the pattern of behaviour within the context of the relationship is crucial. This approach will support the prosecutor to effectively assess whether a pattern of behaviour amounts to fear that violence will be carried out; or serious alarm or distress leading to a substantial adverse effect on usual day-to-day activities.

Further assistance can be obtained from the Statutory Guidance published by the Home Office pursuant to section 77(1) of the Serious Crime Act 2015.

Building on examples within the Statutory Guidance, relevant behaviour of the perpetrator can include:

  • 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

This is not an exhaustive list and prosecutors should be aware that a perpetrator will often tailor the conduct to the victim, and that this conduct can vary to a high degree from one person to the next. It will be open to the courts to consider acts by a defendant and to conclude whether those acts constitute criminal behaviour.

There might be confusion about where the ‘appropriate’ dynamic of a relationship ends and where unlawful behaviour begins. The College of Policing Authorised Professional Practice on Domestic Abuse states: “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 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.”

Therefore, prosecutors should consider the impact on the victim of following, or not following, rules imposed upon them within the wider context of the relationship. Also consider the range of offending behaviour with particular reference to other crimes, such as enforced sexual activity including rape.

Refer to:

http://www.cps.gov.uk/legal/a_to_c/controlling_or_coercive_behaviour/

The CPS also provide this additional guidance about Coercive Control:

The purpose of this guidance is to address controlling or coercive behaviour in an intimate or family relationship which causes someone to fear that violence will be used against them on at least two occasions; or causes them serious alarm or distress which has a substantial adverse effect on their usual day-to-day activities.

When considering this offence, prosecutors must follow the Code for Crown Prosecutors and the CPS Domestic Abuse Legal Guidance. Note that this Legal Guidance builds on Statutory Guidance on the investigation of the offences of controlling or coercive behaviour

http://www.cps.gov.uk/legal/a_to_c/controlling_or_coercive_behaviour/

 

Cafcass, in their Anual Report 2016/2017 published in July 2017 refer to the launch during 2016/2017 of a new tool for the Assessment of Coercive Control. They said:

We have continued to expand the range of evidence based tools available to our practitioners – new tools launched this year include:

  • a pathway to help structure the analysis cases featuring domestic abuse to ensure a systematic review of the risk to the child
  • a tool to assess coercive control, highlighting features that are indicative of such behaviour and supports practitioners to assess this dynamic risk more fully

You can view this statement on page 20 of their Annual Report here:

 

You can view a copy of this tool here:

A researcher asked Cafcass the following questions. Cafcass answers are shown inline below:

1. Please confirm who developed this tool and when.

Cafcass responded: All tools for evidence-informed practice were launched at the same time in September 2013. The Assessment of Coercive Control tool has not been updated but all the evidence-informed practice tools were last reviewed in October 2016.

2. Please confirm the numbers of cases in 2015, 2016, and 2017 (broken down by year if possible) that this tool has been used in

Cafcass responded: Cafcass does not collect information on the number of cases in which the Assessment of Coercive Control tool was used centrally; this information will be held in each individual case file.

3. Please provide details of any elearning training or guidance you provide on when to use this tool and how to use it

Cafcass responded: Cafcass has a Private Law Assessment Tools eLearning module on Private Law Assessment Tools generally, but this does not include specific guidance for the use of the Assessment of Coercive Control tool.

The guidance for the Assessment of Coercive Control tool is: This tool should be used where the Safe Lives Dash has identified elements of coercive and/or controlling behaviour to assess this dynamic more fully in the context of the application.

4. Please provide your policy or training that demonstrates that this tool is used with either parent if they claim to Cafcass that they have been subjected to Coercive Control

Cafcass responded: The matrix of tools provides a guide to which tool should be selected in which circumstance and for what purpose. The Assessment of Coercive Control tool tool should be used where the Safe Lives Dash has identified elements of coercive and/or controlling behaviour in the relationship by either parent.

5. In the section entitled “Intimidation and Threats” and in the section entitled “Economic Abuse” this tool does not follow a gender-neutral format. It specifically asks questions such as “My partner changed his mood for no reason”, “My partner blamed me for making him angry”, and “My partner spent money on himself only”.

5a – could you confirm whether you have available a similar form in which “his”, “him”, and “himself” or replaced with “hers”, “her”, and “herself”.

Cafcass responded: Cafcass does not have a similar form replacing his”, “him”, and “himself” or replaced with “hers”, “her”, and “herself”.

5b – could you provide a copy of your latest Equality and Diversity policy as it applies to your own employees

Cafcass responded: Please see our Diversity and Inclusion Strategy which outlines Cafcass’ approach to issues of equality and diversity in our frontline work. The strategy focusses on our key priorities for diversity and inclusion over the next three years for our service users and staff.

5c – could you provide a copies of any of your latest Equality and Diversity policy/ies as it/they apply to service users

Cafcass responded:  Please see the answer to question 5c. [EDITORS’ NOTE: we think they mean their answer to 5b]

Cafcass Diversity and Inclusion Strategy can be viewed here:

You can draw your own conclusions on Cafcass’ gender neutrality from that policy document and from the terminology in their report.

Next steps

It’s also worth you looking at our research and assessment of Cafcass’ Safe Contact Indicator Tool where their Knowledge Bite on Post-separation control makes it clear that Cafcass should be looking at Coercive Control being something that Resident Parents can exercise and that Cafcass should be reporting on.

Children deserve better than this disjointed nonsense by an organisation tasked with supporting them in our family courts

In a Family Law system designed for combative parents there is no real allowance for the views of children and any understanding of how Family Law ultimately impacts on children most of all.

We speak for the children in Family Law so that, finally, the children have a voice.

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