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Vulnerable vs incapacitous: Coercive and controlling behaviour, undue influence and vulnerability in relationships

Posted on 12 January 2022

The Mishcon Academy Digital Sessions.  Conversations on the legal topics affecting businesses and individuals today.
Nova Maxwell

Hello and welcome to the Mishcon Academy Digital Sessions podcast.  I’m Nova Maxwell, an Associate in the Family Department at Mishcon de Reya.

James Smith

And I am James Smith, an Associate in our Private Wealth Disputes Team.  This is the third and final podcast in our series focussing on vulnerable clients and mental capacity. 

Nova Maxwell

In this episode we are discussing coercive and controlling behaviour, undue influence and vulnerability. 

James Smith

So firstly Nova, what do we mean when we’re talking about coercive control and coercive and controlling behaviour specifically?

Nova Maxwell

So, coercive and controlling behaviour is a form of domestic abuse.  It was made an offence under the Serious Crime Act 2015 so it’s a relatively modern concept in the eyes of the Law.  The Serious Crime Act sets out that a person commits an offence if they repeatedly or continuously engage in behaviour towards another person that is controlling or coercive that at the time of the behaviour, the perpetrator and survivor are personally connected, the behaviour has a serious effect on the survivor and the perpetrator knows or ought to know that the behaviour will have a serious effect on the survivor.  Now there’s obviously a lot to unpack in this legal test but the Act goes on to define serious affect as behaviour that 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.  Another element is that the perpetrator and survivor must be personally connected to meet the legal test, they are personally connected if at the time the incidents took place, they are in an intimate personal relationship with each other or they live together and they are members of the same family or they have previously been in an intimate personal relationship with each other.  The Domestic Abuse Act 2021, however, extends the offence of coercive or controlling behaviour to behaviour that takes place after separation and there is no requirement for the victim and perpetrator to live in the same household. 

James Smith

That’s interesting.  So, how has the law changed do you think to recognise this type of abuse?

Nova Maxwell

Well, I think it’s important to acknowledge that over the past forty years or so, there have been significant developments in the understanding of domestic abuse.  The concept of domestic violence was enshrined in the Domestic Violence and Matrimonial Homes Act 1976, which at the time was itself considered ground-breaking.  However, as its name suggests, it recognised domestic abuse purely in physical terms and required evidence of actual bodily harm.  The concept of domestic violence has evolved to become domestic abuse over the intervening years due to a greater understanding of the scale and scope of abuse within relationships.  It came to be understood that domestic abuse is not always physical and this has culminated in the Domestic Abuse Act which received Royal Assent earlier this year.  Amongst other things, the Domestic Abuse Act creates a statutory definition of domestic abuse, which includes physical or sexual abuse, emotional abuse, psychological abuse, violent or threatening behaviour, economic abuse and coercive and controlling behaviour.  It recognises children as victims if they see, hear or otherwise experience the effects of abuse.  As mentioned earlier, it extends to the offence of coercive or controlling behaviour, to behaviour that takes place after separation and it creates a statutory presumption that victims of domestic abuse are eligible for special measures in the Criminal, Civil and Family Courts and prevents alleged perpetrators from cross-examining alleged victims in person.  Now this latter provision is relevant to our conversation around vulnerability as it acknowledges that people that make allegations of domestic abuse are vulnerable. 

James Smith

Can you give some examples of coercive and controlling behaviour so it’s understood what we mean when we discuss that? 

Nova Maxwell

Well, from a family law perspective, the Family Procedure Rules provides some helpful definitions of the behaviour.  Coercive behaviour means an act of 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.  Now, obviously there are numerous behaviours that could fall under the definition of coercive control but these can include, for example, isolating a person from their family and friends, such as preventing communications with family members or policing or restricting the amount of time they spend with family and friends, taking control of a person’s finances and controlling what they spend or how much money they are allowed, making threats to hurt a person or their family and/or intimidating them, controlling a person’s ability to go to work or their place of study, monitoring or tracking a person or controlling their social media usage, taking control over their everyday aspects of live, such as where they can go, who they can see, what they can wear and even when they can sleep, depriving a person’s access to support services, such as specialist support or medical services, repeatedly putting a person down, such as telling them they are worthless and criticising them in front of others, and obviously that’s not an exhaustive list but it does give an idea as to the sorts of behaviours that might fall under this definition. 

James Smith

Yeah.  It’s also interesting that those types of behaviour that you’ve mentioned, they’re also similar to the types of behaviour we see in undue influence cases, particularly isolating people from their friends and family and trying to control finances.  Other examples include filtering a person’s phone calls, even turning the volume down on the telephone so they can’t be heard, perpetrators being the only point of contact for someone whilst behaving as their friend and intercepting of their post are also common examples.  Undue influence is one of the grounds upon which a person can challenge a Will and there’s a relatively high path that other grounds of challenge include there being lack of proper formalities in the Will itself, a lack of testamentary capacity which is one of the areas that was covered in the first podcast in this series, and a lack of knowledge and approval of the Will.  Undue influence in relation to Wills means influence and that can be exercised either by coercion, which is the person unduly influencing the person making the Will, overpowering their wishes or by fraud and coercion, in this context, means pressure that overpowers the testator’s own decision-making without convincing the testator’s judgement – the testator being the person making the Will.  So, accordingly, coercion is more than persuading or affectionate appeals to the testator or the testator instead taking pity on the alleged perpetrator, all of which are actually legitimate.  It’s been said in cases that the testator’s strength, both physical and mental, are relevant factors for the  Court in determining how much pressure is necessary in order to overpower the testator’s Will.  Accordingly, a weak and ill person may be more easily overpowered than a person who’s fit and healthy.  In relation to Wills specifically, there is no presumption of undue influence so, going back to the point you were making, Nova, earlier about a relationship between the parties, in certain circumstances you can have a relationship of trust and confidence, which can mean a presumption of undue influence but in the context of Wills, the claimant or the person bringing the claim must show, in the circumstances, that the undue influence is the only hypothesis that can work, it’s not sufficient that there can be any other hypothesis and for that reason, it’s quite a high bar to be successful in one of those claims and boil down to its most basic, the question is whether or not the testator has acted as a free agent or not. 

Nova Maxwell

So it does sound like there is quite a high bar to meet there. 

James Smith

Yeah. 

Nova Maxwell

In terms of coercive and controlling behaviour, it can be important to look at a pattern of behaviour rather than a single incident, which on its own may not appear to constitute coercive control.  When assessed in the context of other behaviours however, it may become more apparent that a form of control is being exerted.  Some of the behaviours can be quite subtle, when looked at in isolation but when viewed in the context of a pattern of behaviours, can evidence more insidious abuse, for example, a boyfriend accompanying his girlfriend when she meets her friends might not be seen on its own as constituting coercive and controlling behaviour but when viewed together with him restricting her communications with her family, monitoring her social media and answering her phone calls, a telling fact pattern emerges.  In the recent family law cases of F and M and HN and Others, the use of Scott Schedules, which are essentially a table identifying the allegations and the evidence relied on in support, have been questioned in cases involving coercive and controlling behaviour.  This is because they can be seen to be reductive and too formulaic to capture the wider pattern of abuse and the more subtle forms of abuse.  It has been suggested that more narrative forms of evidence, such as a statement, might be more appropriate in these cases.  Now, the case of F and M involved a two-week fact finding hearing of domestic abuse allegations, which centred on coercive and controlling behaviour.  It’s one of the very few reported cases in the Family Courts that dealing comprehensively with allegations such as these.  The facts of this case set out in great deal the nuances of a coercively controlling relationship and they do make for chilling reading.  On coercive and controlling behaviour, Mr Justice Hayden found, and I quote, “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 and 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 then goes on to describe this type of domestic abuse as being insidious and manipulative and states, “My strong impression, having heard the disturbing evidence in this case, is that it requires greater awareness and, I strongly suspect, more focussed training for the relevant professionals.”

James Smith

Just like in cases of coercive and controlling behaviour, undue influence is also assessed in all the circumstances rather than looking at isolated incidents because a person’s behaviour can be affected over time so, it’s quite interesting that there is, there is similarity there in the approach that’s taken to looking at the behaviour. 

Nova Maxwell

Absolutely, it’s sort of looking at the wider context which is important here. 

James Smith

Going back to domestic abuse, what sort of numbers are we talking about in terms of the number of cases that are seen and allegations having been made in the Family Courts?

Nova Maxwell

Well, in the year 2019 to 2020, the Family Court received over 55,000 private law applications by parents for an order seeking to resolve a dispute with the other parent relating to the future care arrangements for their child so, these are orders under the Children Act 1989.  While not an exact science, it’s thought that at least 40% of private law children cases now involve allegations of domestic abuse and in my mind, that’s a staggering number of cases involving allegations of domestic abuse and I can imagine that as the concept of coercive and controlling behaviour is better understood and recognised, that this number will only increase and those numbers are obviously just in the Family Courts.  More widely, figures from the Office for National Statics show that the Police recorded 845,734 domestic abuse related crimes in England and Wales in the year ending March 2021 and that’s a 6% increase from the previous year and further stats from the ONS show that there were over 24,800 offences of coercive control recorded by the Police in England and Wales in the year ending March 2020.  Now, it’s important to note here that a lot of the material in the public domain is about abuse between those in an intimate relationship, as we’ve been talking about, but it can take place in a much wider range of situations, for example, Age UK identifies elder abuse, where controlling behaviour and financial abuse are identified as aspects of abuse perpetrated against those that are older and often where those people are suffering from conditions such as dementia, which make them particularly vulnerable to such abuse.  James, your work as a private client solicitor and particularly in the Court of Protection, can bring you into contact with issues of elder abuse and particularly undue influence, as we’ve mentioned previously.  Are you able to tell us a little bit more about that?

James Smith

Yes, of course.  So, elder abuse can take many forms.  We tend to see it in the sense of financial control of an elderly person and that can be in the form of unduly influencing somebody to change their Will for the benefit of the wrongdoer, unduly influencing an elderly person to transfer assets and coercing an elderly person to give the wrongdoer control of their finances via a lasting power of attorney specifically for property and financial affairs and going back to the undue influence point, which we were discussing earlier, there are different classes of undue influence, there’s actual undue influence, which is itself a species of fraud and there is also presumed undue influence, which requires a relationship of trust and confidence.  So, looking at those each in turn, actual undue influence is the category which applies to Wills, in which we’ve mentioned earlier there was a case from the House of Lords in the ‘90s which held that the actual undue influence is a species of fraud and a claimant who proves actual influence is actually entitled, as of right, to have the transaction induced by that undue influence set aside.  It’s a relatively high threshold in order to prove actual undue influence.  You specifically need to deal with three things, the party who induced the transaction had the capacity to influence the party alleging undue influence, the party who induced the transaction did in fact influence the party alleging undue influence and that influence was undue and the undue influence did in fact bring about the transaction and those three elements make up a case of actual undue influence.  And then in relation to presumed undue influence, this category of undue influence requires the claimant to establish a relationship of trust and confidence such that it’s fair to presume the wrongdoer abused the relationship to make the survivor enter into the transaction.  Undue influence can arise where there is a relationship of trust in confidence, reliance, dependence or vulnerability on the one hand and ascendency, domination or control on the other – that’s from the case of Royal Bank of Scotland and Etridge in 2002.  Where there is a relationship of trust and confidence, the burden of proof shifts to the wrongdoer to prove the survivor entered into the transaction freely.  The claimant in one of these types of cases must show that the transaction was to the clear and obvious disadvantage of the survivor and there are certain examples of irrefutable relationships where the Court will find that there was trust and confidence such as a parent and child or a doctor and a patient.  In other types of relationships, they may need to be investigated to see whether the presumption arises, for example, a fiancée, a husband and wife, cohabitees, all of those could potentially result in a presumption of undue influence but the Court won’t readily find them until there’s been some further evidence.  Otherwise, the claimant can still show that he or she put their trust and confidence in the wrongdoer.  Relationships of influence also extend to cases where there is evidence of dependence or vulnerability.  The final element in these types of presumed undue influence cases is showing that the transaction itself calls for an explanation.  Now, that’s often the case where the party is given a gift, which is so large or makes a transfer which is so improvident that it’s not reasonably accounted for by the relationship itself or other motivations.  Another category of financial abuse can occur where there is a Lasting Power of Attorney or property and financial affairs that’s been made.  Unfortunately, it’s not uncommon for property and financial affairs, Lasting Powers of Attorney to be abused, for example, the donee of that Lasting Power of Attorney deals with the donor’s assets for their own benefit, that’s often accompanied by coercive and controlling behaviour to isolate the survivor and stop them from seeking help or support from their family and friends. 

Nova Maxwell

So, what can be done to deal with such behaviour or suspected behaviour?

James Smith

Actually, there’s quite a few things that you can do.  Depending on the circumstances, you can make a referral to Social Services, you can also make a safeguarding alert, that can be done through a professional or you can make the safeguarding alert yourself.  Those actions can help to remove the alleged perpetrator from the elderly person’s vicinity.  You can also contact the Office of the Public Guardian, which is a body which oversees Lasting Powers of Attorney and those types of relationships and you can report your concern directly to them via their website and they will then investigate.  Now, depending on the circumstances, if the elderly person is alive and has the requisite capacity to do so, she or he can revoke an LPA or a Will either by a direct act of revocation or by making a new one and if the elderly person lacks the relevant capacity, and the test for that was dealt with in the first podcast in this series, you can apply to the Court of Protection to set aside a Lasting Power of Attorney or to appoint a Deputy to manage the elderly person’s property and financial affairs, the same goes also for health and welfare decisions and you can apply to the Court of Protection for a statutory Will.  Now, a statutory Will is created by the Court of Protection on behalf of a person who lacks testamentary capacity to make their own Will and the test for testamentary capacity was in podcast 1 of this series.  If the elderly person has died, it’s possible to challenge lifetime gifts made by the deceased person and any Will on the grounds of undue influence as we’ve discussed earlier.  The main difficulty with undue influence cases is that there’s often little in the way of direct evidence.  In the case of Schrader and Schrader in 2013, Mr Justice Mann observed that’s there’s rarely direct evidence of such influence and more usually, is established by inference from all the circumstances, the main issue being, one of the parties to the alleged undue influence having died, they are no longer able to give evidence themselves but that shouldn’t persuade people not to bring these cases, if there is evidence, the Court readily finds that there has been undue influence. 

Nova Maxwell

Now, we’ve mentioned that those who suffer abuse and are subject to coercive controlling behaviour or undue influence are vulnerable.  Are you able to define what vulnerable actually means in the context of legal proceedings and how to recognise whether a client might be vulnerable?

James Smith

The definition of vulnerable is actually a difficult one because it can be quite risky to be too prescriptive about whether a person is vulnerable or not.  Interestingly, and perhaps for this reason, there is no formal definition of vulnerability in legal proceedings like there are for capacity and other tests for example, but the risk factors include things like your age, immaturity, understanding, difficulties in communicating, physical disability, mental health condition, the relationship between the party and the witness, for example if there’s been domestic abuse, and also exposure to drug and alcohol abuse.  However, in determining vulnerability, from the point of view of legal proceedings, the Law Society does give guidance of working with clients who might be deemed to be vulnerable and those can be helpful for a solicitor or other legal practitioner to be able to identify where someone may need additional assistance and support and the guidelines which were discussed in one of the previous podcasts actually set out as well what types of support the Court may give in order to assist a party.

Nova Maxwell

And further to that in the family procedure rules, where it is stated that a person or witness is or at risk of being a victim of domestic abuse, it is to be automatically assumed that they are vulnerable and in these cases the Court is duty bound to consider whether direction regarding their participation is necessary.  So, this might include giving evidence by live link, for example, or using the assistance of an intermediary.  The Court may also make directions in relation to matters such as the structure and timing of the hearing, the formality of language to be used in the Court and whether the parties should be enabled to enter the Court building through different routes and use different waiting areas. 

James Smith

What can be done to help someone who’s vulnerable by virtue of being subject to coercive or controlling behaviour?

Nova Maxwell

So, both in terms of a solicitor-client relationship and more widely, if someone you know is being made subject to coercive controlling behaviour or you suspect that they are, you should certainly call the police if they are in immediate danger.  Alternatively, urge them to speak to someone they trust, such as their GP.  There is a 24-hour national Domestic Violence Helpline which can give advice and support.  They can also seek help from refuges and charities such as Women’s Aid.  Practically, if there is a concern that they’re being monitored online for example, there are things you can do such as changing passwords on devices, revoking access to devices their partner may have access to, setting up notifications if new log-ins from an unusual device are detected and changing account settings on social media to ensure they are private. 

James Smith

In the Family Court, what practical action can you take to protect a survivor of domestic abuse?

Nova Maxwell

So, there are personal injunctions that can be applied for.  These are non-molestation orders and occupation orders.  I just want to say first of all though that anyone considering this route should of course seek the advice of a solicitor who can advise them on strategy and the best way to present their case in Court.  A non-molestation order prohibits the perpetrator, who I’ll refer to as the respondent, from threatening, intimidating, harassing or pestering the applicant or a relevant child or encouraging anyone else to do the same.  It prohibits the respondent from using or threatening violence, damaging property, communicating with the applicant and/or posting derogatory or insulting posts on social media.  There is a legal test that needs to be met to obtain a non-molestation order which is that the respondent and applicant must be associated and this includes someone you are having or have had a relationship with, a family member or someone you are living with or have lived with.  However, where the respondent is not associated with the applicant, this isn’t the end of the line as the applicant may be able to obtain an injunction under the Protection from Harassment Act if they can show that there were two or more incidents of behaviour that amount to harassment.  Now there’s no such requirement that an applicant seeking a non-molestation order shows a course of conduct pursued by the proposed respondent, a single incident could potentially lead to a non-molestation order being made.  The Court has to have regard for all the circumstances of the case when deciding whether to make an order, including the need to preserve the health, safety and wellbeing of the applicant of any relevant child and importantly, breach of a non-molestation order is a criminal offence with a sentence of up to five years, as well as a contempt of Court.  Now, occupation orders are another injunction that can sought and they restrict access to the family home and potentially the surrounding area.  Again, the respondent must be an associated person of the applicant.  While it’s more limited than a non-molestation order, an occupation order essentially allows you to kick someone out of a property or force them to let the applicant back in and so it’s more invasive in terms of property rights.  When considering whether to make such an order, the Court will assess the balance of harm to the applicant and respondent and any child of making or of not making an order.  To do this, the Court must take into account the needs of the parties and the children and their respective financial resources. 

James Smith

Well, for now, let’s wrap up there.  I’d like to say thank you for listening and for joining our podcast.  This is the last in our series of vulnerable clients and mental capacity but you can find the two previous episodes available at mishcon.com.

Nova Maxwell

The Digital Sessions are a series of online events, videos and podcasts, all available at mishcon.com and if you have any questions you’d like answered or suggestions of what you’d like us to cover, please do let us know at digitalsessions@mishcon.com

 

 

The Mishcon Academy Digital Sessions.  To access advice for businesses that is regularly updated, please visit mishcon.com.

In the third episode of the Vulnerability podcast series focusing on vulnerable clients and mental capacity, Nova Maxwell  and James Smith, discuss coercive and controlling behaviour and undue influence in relationships.

In the previous episode, Antonia Felix and Mariel Stringer-Fehlow discussed what it means to be a vulnerable party, how vulnerable parties and witnesses are supported in litigation, and what can the legal system do better. Listen to the second part of the series here.


Visit the Mishcon Academy for more learning, events, videos, podcasts and reports.

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