SD v AFH (Appeal: Coercive and controlling behaviour: Inference or speculation)

An appellate court must assess a family judgment as a whole and should not interfere with factual evaluations unless a clear and substantial error is identified. The court may draw reasonable inferences from the full evidential picture, including subsequent events, provided it acts on established facts rather than suspicion or speculation. In coercive-control cases, texts are only part of the evidence. The court may consider oral evidence, recordings, body language, the parties’ relationship dynamic and the escalation of behaviour. The boundary between acceptable relationship behaviour and coercive or controlling behaviour under PD12J is not a bright line. Procedural compliance must serve substantive justice, and non-molestation orders are not invalidated by technical objections which cause no material injustice.

The father sought permission to appeal against HHJ Plunkett’s findings that he had engaged in coercive and controlling behaviour, including behaviour surrounding an alleged child-arrangements agreement, later conduct involving the mother and child, and pushing the mother to the ground. The findings arose from cross-applications concerning the parties’ young child and a related non-molestation order.

The father challenged the factual findings, the use of inference from later events, the interpretation of coercive and controlling behaviour, the hearing time and disclosure, alleged procedural defects, and the refusal to rely on further evidence. The central questions were whether the findings were based on speculation and whether any procedural error justified appellate intervention.

1. Permission and fresh evidence. Permission to appeal was refused. The proposed fresh evidence was unavailable at the fact-finding hearing, but it would not have had an important influence on the result. The application to adduce it was therefore refused.
2. Appellate restraint. The judgment under appeal had to be read as a whole. Following Re F (Children), [2016] EWCA Civ 546, and Piglowska v Piglowski, [1999] 1 WLR 1360, the appellate court was concerned with substance rather than narrow textual analysis. It should not substitute its own evaluation for that of the trial judge. Following Royal Bank of Scotland v Carlyle, [2015] UKSC 13, and Henderson v Foxworth Investments Ltd, [2014] UKSC 41, interference required an identifiable error such as a material error of law, a critical finding without evidential basis, a misunderstanding of relevant evidence or a failure to consider relevant evidence.
3. Inference and evidence. The court must act on established facts rather than suspicion, speculation or doubt, as recognised in Re B (Children), [2008] UKHL 35. That principle did not prevent reasonable inference. The evidential assessment could include texts, oral and written evidence, hearsay, recordings, emotions, body language and the relationship dynamic. In appropriate circumstances later events could illuminate earlier conduct, as in Re G (Care Proceedings: Threshold Conditions), [2001] 2 FLR 1111. Here, the close temporal connection between the agreement and later controlling behaviour, together with the absence of any real behavioural break, justified the inference drawn.
4. Coercive and controlling behaviour. The definitions in paragraph 3 of PD12J applied. The boundary was not bright. Conduct could fall within the definition even if it was at the lower end of the spectrum, provided it was well outside acceptable relationship behaviour. The later conduct represented an escalation along the same spectrum.
5. Procedure and substantive justice. The two-day estimate was adequate. The father had been offered the choice of seeking an adjournment to obtain outstanding disclosure and chose to proceed. His procedural objections therefore did not establish material injustice. Technical procedural defects could be waived where justice required. The non-molestation order was supported by the findings, and the alleged defects did not undermine its validity or engage articles 6 or 8.

• High Court (Family Division): Permission to appeal against HHJ Plunkett’s judgment of 14 November 2018 was refused. The application to adduce fresh evidence was also refused. The first-instance proceedings were to continue on the basis of the findings made.