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

Family practitioners, particularly those working in cases concerning children and domestic abuse, have awaited with interest the outcome of four conjoined appeals before the Supreme Court. Broadly, the four appeals (albeit one was later dismissed) had the same central themes – children disputes concerning allegations of domestic abuse; the extent to which, and how, the court should consider such abuse and, therein, the extent to which such findings impact on arrangements concerning children.

Highlighted for particular consideration among the varying examples of abuse was the issue of coercive and controlling behaviour.  It was argued that coercive and controlling behaviour can be a continuing pattern of abuse that can be obvious or insidious and is distinguishable from other forms of abuse.  If this argument was to be accepted (which it was) then it followed that coercive or controlling behaviour could not easily be categorised by, or condensed into, a particular number of examples.  This was one of a number of important practice points for lawyers working in this field. 

Where abuse is argued as being present in children disputes, often a judge will list a fact finding hearing.  In advance of the fact finding hearing, one or both parents are directed to draft and file a document known as a Scott Schedule.  A Scott Schedule sets out examples of abuse with dates and an explanation of what was suffered.  Within the fact finding hearing, the Scott Schedules form the basis on which a judge will manage the hearing of evidence and each schedule will be considered in turn and the parents cross-examined on their allegations.  The evidence given should then inform the judge as to whether, on a balance of probabilities, the abuse as alleged happened and in turn inform arrangements for the children. 

In an effort to manage cases time and cost effectively, very often parents are directed to only include a certain number of examples on their Scott Schedule, commonly limited to five or eight examples.  The limitations of this are obvious.  How is a parent supposed to condense a long-term pattern of coercive and controlling behaviour into a few short examples?  In so condensing, to what extent may a judge be unwittingly misled as to the history of abuse suffered or the extent to which there is an established pattern of coercive and controlling behaviour?    

The experience of being within a coercive and controlling relationship is a lengthy narrative.  Abuse can be a patchwork of things said and done; opportunities pursued and denied; noise and silence; physical, emotional, sexual, financial.  The scars run deep and can last a lifetime.  Often caught within this maelstrom are children, with the court striving to promote their interests and welfare as paramount. 

Re H-N and Others emphasised this, and the Supreme Court recommends that there should be a move away from Scott Schedules because of their limitations.  Narrowing abuse to a small number of examples with specific dates and times risks failing to focus on the wider context of what might be a pattern of behaviour and the consequential impact on arrangements for children.  In widening focus, the court must at the same time not lose sight of the need to avoid unnecessarily increasing the scale and length of children proceedings.

For parents in cases where abuse is alleged, Re H-N and Others provides a welcome opportunity to share and relay their experiences more fully.  This so that a court considering what is best for their children can take a more rounded, informed approach to considering whether domestic abuse is present and the impact, if any, this may have on children arrangements.  Family lawyers can expect to see court directions leaning more towards narrative statements and away from Scott Schedules.  The wider impact and evolution of the impact of domestic abuse in family cases will in due course reveal itself, and Re H-N and Others is a very significant step in the right direction.   

Georgina Rayment
Partner, Head of Family, Mediator