Re H-N and Others (children) (domestic abuse: findings of fact hearings)

This case which was heard in the Court of Appeal in March 2021 concerned four separate appeals against decisions of the Family Court in private law children matters where at least one of the parents had made allegations of domestic abuse.

In the Family Court, where allegations of domestic abuse are made, the parent making the allegations is often asked to distil their allegations down to the five most serious allegations and for these to be set out in a “Scott Schedule”. The benefit of this is that the person who is responding to the allegations knows exactly what allegations are being made against them and is able to respond to them. The additional benefit is that the ambit of any fact-finding hearing is clear and the Judge is able to determine those allegations which have been made.

However, as understanding of domestic abuse progresses and improves, this format is becoming less and less useful. As the Court of Appeal stated, there is a need for the Courts to look at the pattern of behaviour and whether this behaviour was coercive and controlling. To list five specific factual incidents can take away from the pattern and a Court may fail to identify such a pattern when only presented with five isolated incidents in this way.

Further submissions were made by some of the parties to the appeal that the very process of selecting and reducing the number of allegations made produces a “false portrayal of the couple’s relationship”.

The Court of Appeal stated that they could “see the force of these criticisms” but it was not for the Court of Appeal to do any more than set out the options that were put forward by way of submissions to the Court.

The Court noted that The Harm Panel had expressed a similar view and raised concerns about the way in which Scott Schedules limited the Court’s ability to recognise patterns of behaviour.

It is now almost a year since Judgment was handed down in Re H-N and Scott Schedules continue to be used in family proceedings where allegations of domestic abuse are made. We look forward to any future proposals for changes to Scott Schedules and Fact-Finding Hearings, but in the meantime, practitioners must ensure that the Family Court applies the safeguards that are currently in place to ensure that allegations of domestic abuse are tested properly and fairly within the Family Court.

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