Can the court still direct the use of Scott Schedules or limit allegations a party wishes to make?

1. When there are allegations of coercive control, there is usually a pattern of events throughout the relationship and not isolated to one sole incident. In the case of F and M [2021] EWFC4, the court at [4] acknowledged that this is usually the case where there is an allegation of coercive control:

“Understanding the scope and ambit of the behaviour however, requires a recognition that 'coercion' will usually involve a pattern of acts 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.” 

2. In that case, the court made further observations entitled “post script”  however despite the observation’s made, the Judge made clear in his Judgment it was not prescriptive guidance indicating there is still no firm approach the court should take with regards to the use of Scott Schedules.

3. The observation this Judge makes “post script”  highlighted minimising incidents carried risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour but that whether a Scott Schedule is appropriate will be a matter for the Judge and advocates in each case:

“It seems to me that what is important is that the type of abuse being alleged is made clear to the individual who is said to be the perpetrator.

An intense focus on particular and specified incidents may be a counterproductive exercise. It carries the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour.

I accept that although the court considered the above it suggested that. Whether a Scott Schedule is appropriate will be a matter for the judge and the advocates in each case unless, of course, the Court of Appeal signals a change of approach.”

4. On the question of “it will be a matter for the judge and the advocates in each case”, this indicates that representatives shall ensure from an early stage in the proceedings they raise with the court any issue they take with the use of Scott Schedules. Raising this issue on the first-day of a Fact-Finding hearing or after Scott Schedules have already been directed, may well be too late:

5. The case of HN Others [2021] EWCA 448 re-iterated at [19] that:

"PD12J requires the court to consider at an early stage 'whether the key facts in dispute can be contained in a schedule or a table (known as a Scott Schedule) which sets out what the applicant complains of or alleges, what the respondent says in relation to each individual allegations or complaint; the allegations in the schedule should be focussed on the factual issues to be tried; …"

6. It is also noted however at [45] of that Judgement the court highlights the process of directed selection produces a false portrayal of the couple’s relationship.

"45. The second, more pragmatic, criticism is not unrelated to the first. As an example in one of these four appeals, the parties were required to 'limit' the allegations to be tried to ten and the judge at trial further reduced the focus of the hearing by directing that only three would be tried. It was submitted that that very process of directed selection, produces a false portrayal of the couple's relationship. If such an applicant succeeds in proving the three remaining allegations, there is a risk that the court will move forward on the basis that those three episodes are the only matters 'proved' and therefore the only facts upon which any adverse assessment of the perpetrator's future risk falls to be made. By reducing and then further reducing its field of focus, the court is said to have robbed itself of a vantage point from which to view the quality of the alleged perpetrator's behaviour as a whole and, importantly, removed consideration of whether there was a pattern of coercive and controlling behaviour from its assessment."

7. The court agreed at [45] that “consideration of whether the evidence establishes an abusive pattern of coercive and/or controlling behaviour is likely to be the primary question in many cases where there is an allegation of domestic abuse, irrespective of whether there are other more specific factual allegations to be determined”.

So, this leads to the question: what happens if you are at a Fact-Finding hearing where the use of Scott Schedules has already been directed, but your client seeks findings which depart from the Scott Schedule?

 

8. In Re A No.2 (Children: Findings of Fact) [2019] EWCA Civ 1947 at [96] the court made clear that the court is not bound by case put forward by parties and all that was required was fairness.

The court is not bound by the cases put forward by the parties, but may adopt an alternative solution of its own: Re S (A Child) [2015] UKSC 20 at [20]. Judges are entitled, where the evidence justifies it, to make findings of fact that have not been sought by the parties, but they should be cautious when considering doing so: Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10; [2009] 1 FLR 1145, where Wall LJ said this:

16. All that said, however, the following propositions seem to me to be equally valid. Where, as here, the local authority had prepared its Schedule of proposed findings with some care, and where the fact finding hearing had itself been the subject of a directions appointment at which the parents had agreed not to apply for various witnesses to attend for cross-examination, it requires very good reasons, in my judgment, for the judge to depart from the schedule of proposed findings. Furthermore, if the judge is, as it were, to go "off piste", and to make findings of fact which are not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure; (a) that any additional or different findings made

As to fairness, the decision in B (A Child) [2018] EWCA Civ 2127, in which Newey LJ and I participated, confirms that:

“15. It is an elementary feature of a fair hearing that an adverse finding can only be made where the person in question knows of the allegation and the substance of the supporting evidence and has had a reasonable opportunity to respond. With effective case-management, the definition of the issues will make clear what findings are being sought and the opportunity to respond will arise in the course of the evidence, both written and oral.”

9. So, in considering the above context, the position can be summarised as following:

9.1.  It is a matter for the court to decide whether the matters should be confined to Scott Schedules.

9.2. It is for the parties and court to decide the appropriateness of Scott Schedules, therefore you shall raise the issue as early as possible.

9.3. However, even if Scott Schedules are directed, the findings the court should make or could make does not need to be confined to the Scott Schedule (as long as the opposing party has been made aware of the allegation and has had the opportunity to respond). This will usually be the case if the allegation has been raised in a witness statement despite it not being part of the Scott Schedule.

Blog post by Luke McLean of the Garden Court Chambers Family Team.