Following the recent case of Re B-B, several commentators in the legal field have been quick to reflect on the use of the term ‘gaslighting’, which appeared in this recent High Court case, as well as other preceding judgments over the years.
Gaslighting refers to psychological manipulation that makes someone question their perception of reality. The term originates from a 1930s play where a husband manipulates his wife into thinking she is going mad, including that she is imagining the dimming of gas lights. It is commonly manifested by:
Unfortunately, this phenomenon is nothing new to family lawyers, who will invariably have supported many clients facing such behaviour by their spouse or former partner.
Is gaslighting illegal and will it be held against my spouse or former partner?
Whilst gaslighting is technically illegal if it is used within a pattern of coercive controlling behaviour, it is important to understand its distinction in criminal and family law. In criminal law, coercive control has been illegal since December 2015, while the Domestic Abuse Act 2021 effectively widened the scope of ‘domestic abuse’ to include non-physical forms such as:
However, whilst specialist criminal advice can be sought with respect to cases under these statutory protections, family cases are civil proceedings and will not seek to determine the criminal liability of a potential perpetrator of gaslighting.
Furthermore, the threshold is extremely high for the court to consider the conduct of a spouse or former partner when determining the division of assets. In other words, the court is unlikely to award a greater share of assets based solely upon the conduct of a party. It is only in the most extreme cases where a court may factor conduct into the division of assets, such as if it has an impact on a party’s ability to work. This is not to minimise the legacy gaslighting can have, but it is a common misconception that, if a party has experienced domestic abuse, this will be reflected in the division of assets.
That said, in the case of gaslighting and more subtle forms of psychological abuse, it can be even more difficult since its very nature makes it difficult to prove, especially in an overburdened court system. However, findings of domestic abuse and gaslighting may be made in family cases, as it was in the recent Re B-B, a children case.
How may gaslighting be relevant to my divorce?
Firstly, in relation to division of assets and spousal maintenance awards, the mental health of the spouses and the dynamic between them can be relevant. For example, serious damage to one party’s mental health may severely limit their future earning capacity by preventing them from returning to work or impacting their future career. This then leaves that party with a much greater need for adequate financial provision upon divorce.
Furthermore, in the efforts of the courts to understand a relationship and its breakdown, there are a myriad of other ways in which such behaviour may become relevant. For example, whilst the courts recognise the contribution of a ‘homemaker’ as equally valid to that of a ‘breadwinner’, it may provide crucial context in explaining the roles the parties have played. In particular, a finding of domestic abuse may justify the need for higher levels of expenditure after the marriage has ended where social and leisure spending has been curtailed due to a lack of freedom.
In procedural terms, it may also be important to raise concerns regarding controlling or coercive behaviour and psychological abuse. For example, whilst the courts can mandate parties to formally consider mediation, cases with domestic abuse issues may be exempt from mediation. This can be assessed and confirmed by a family mediator in advance at individual assessment meetings ahead of mediation. Furthermore, special measures may be obtained for vulnerable individuals, including:
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Shuttle mediation
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Breaks during hearings
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Anonymisation
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Controls around cross-examination
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Separate waiting rooms at court
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Screens when giving evidence
Can a finding of gaslighting or domestic abuse impact child arrangements?
In proceedings under the Children Act 1989 – regardless of whether they arise from a couple separating– domestic abuse allegations are taken very seriously. Safeguarding checks are activated on issue of an application. The court may determine that the allegations of abuse require a risk assessment and conduct a specific fact-finding hearing to establish whether the alleged abuse has occurred, based on the balance of probabilities and not beyond reasonable doubt (the latter being the criminal standard).
When domestic abuse is found to have taken place, the court must consider its potential impact on the child, parent and co-parenting relationship and make appropriate orders. Such orders can restrict or even close down the relationship between a child and the abusive parent where this is determined as necessary for the safety and welfare of the child, which is always the paramount consideration of the court. In this respect, the court acknowledges that it is detrimental for a child to witness abuse or be exposed to abuse perpetrated by, or against, either parent. Accordingly, the court is under a duty to ensure that any child arrangements order protects the safety and wellbeing of the child and the parent with whom the child is living and does not expose either of them to the risk of further harm.
In relation to gaslighting, it is significant that the court’s definition of domestic abuse mirrors criminal legislation in protecting against controlling and coercive behaviour, having been amended to this effect in 2014. Thus, in cases such as Re B-B, where gaslighting is established, it can lead to a finding that there has been domestic abuse, which in turn may influence orders as to a child’s living situation and the contact they might have with the parent who has been found to have been abusive.
Is this latest judgment featuring gaslighting a turning point?
Domestic abuse has long been a factor in children cases. The recent reference to gaslighting and the judge’s (Lord Justice Cobb) evident understanding of the term further recognised the behaviour and provided a more definitive view of it for future cases.
As recently as 2020, the Ministry of Justice’s report on the handling of ‘harm’ in children cases highlighted that little had been done to adapt the procedures of the court further to the recognition of controlling and coercive behaviour as forms of abuse. So while such behaviour was technically recognised as abuse, the court process was not effectively supporting such findings being made.
However, in a series of cases from 2020 to date, culminating with the most recent reference to gaslighting, the judiciary has demonstrated increasing willingness to grapple with the complexities of patterns of abuse and its impact on families and future child arrangements.
For example, the Court of Appeal’s judgment of 2021 in Re H-N and Others set out important guidance on how to deal with allegations of domestic abuse, emphasising the need to move away from focusing on specific allegations, towards understanding the wider context illustrated by patterns of behaviour.
Importantly, this judgment endorsed the limitations of Scott Schedules raised by the experts of the Harm Panel and by a High Court judge in the 2021 case of F v M, which emphasised that seemingly “innocuous incidents” have much “greater significance” when viewed in their wider context.
Scott Schedules itemise allegations of abuse to which the alleged abuser must respond. However, the Court of Appeal noted that, in reducing patterns of behaviour to a few specific factual incidences, these schedules are now seen as a “potential barrier to fairness and good process, rather than an aid”. It is encouraging that one of the most senior courts in the country endorsed efforts to find a more suitable approach which will enable a more nuanced understanding of patterns of behaviour such as gaslighting and other forms of psychological abuse.
Finally, it is worth drawing attention to the case of M (A Child) from 2021 in which Mrs Justice Judd granted an appeal against a fact-finding that there had been no abuse. A retrial was ordered on the basis that:
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A vulnerable mother was not protected by adequate special measures during the trial process
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The judge did not appropriately consider the wider context or the impact of the mother’s vulnerability on her response to any potential abuse
On the one hand, the first instance decision arguably underlines the continuing failures of the court system, and the appeal judgment emphasised the difficulties faced by an overburdened system. However, recognition of the fact that vulnerability and dependence makes a victim more likely to remain in an abusive relationship is reasoning echoed in Re B-B, which found that the father’s pattern of behaviour, including ‘gaslighting’ the mother, amounted to domestic abuse. The more sensitive approach taken here and on appeal in M (A Child) points to an increasing awareness of the importance of recognising power dynamics and vulnerability in cases of domestic abuse.
Against the backdrop of such cases, it is further worth emphasising the very fact that the recent judgment of Re B-B was published. Given many family cases remain private and unpublished, this suggests an appreciation from the judiciary of its broader significance. Indeed, it may be a first step towards implementing Mr Justice Hayden’s call for “greater awareness” of the “particularly insidious type of abuse” in F v M. Such awareness and further steps are essential if the family courts are to move beyond mere recognition of psychological abuse towards a truly nuanced approach that allows it to be adequately identified, understood and prevented.
