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/ 20 Jan 2021

Coercive Control and Other Allegations in the Family Court

The judgment of F v M [2021] EWFC 4, which was published last week, is of interest to family law practitioners for many reasons. Firstly, it deals succinctly with introducing ‘similar fact’ evidence into private family proceedings and provides very clear guidelines as to when this is admissible. Secondly, it is (likely) the first case to reach the High Court dealing with coercive control, a type of domestic abuse which has until now gone largely unreported insofar as the family courts are concerned. Finally, and most importantly for the purpose of this blog, Hayden J was asked to comment on the appropriateness of Scott Schedules in private law proceedings involving allegations such as coercive control against the other party.

Maisie Lockyer

Associate

Family & Divorce

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This has been somewhat of a hot topic in recent months, following the ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ report which was published in June 2020, which questioned whether or not the current approach of filing a Schedule of Allegations (or Scott Schedule) is fit for purpose. This same question is something that family practitioners have been grappling with for some time now.

Putting aside allegations of coercive control for a moment, let’s consider how the courts approach allegations generally in private children proceedings and the difficulties that will arise.

When a party wishes to raise allegations against the other party, they will usually do so by filing a C1A (either with their application, or with their acknowledgment, if they are the respondent). This will, in most cases, ensure the court is aware of any relevant allegations from the outset. However, if one party is unrepresented, they may not know to fill out the C1A, and allegations such as coercive control may not be raised until later in proceedings. In such cases, the party making those allegations may come under fire for not raising the issue sooner, or indeed, be accused of making those allegations solely in retaliation.

The C1A itself is problematic; it provides a limited space for allegations to be listed and makes clear that this should not be a statement. And yet, a party may then be tied to only those allegations and have it suggested that their C1A should be considered a supporting statement. If accepted, this would leave them without the opportunity to fully make their case and provide supporting evidence.

It is accepted that not all cases in which allegations like coercive control have been made will warrant a direction to file a Scott Schedule; fewer still will benefit from a Fact-Finding Hearing taking place. We often find ourselves in a position where we must explain to our clients that even if the court make a finding that they were a victim of the alleged abuse, this may have little impact on the eventual child arrangements. In such cases, it may not be proportionate to conduct a Fact-Finding Hearing because, ultimately, where would it get you? Indeed, this very issue is before the Court of Appeal this week, where the Court is being asked to comment on the treatment of allegations of domestic abuse (including coercive control and rape) in children proceedings and in particular, the family courts’ failure to properly apply Practice Direction 12J.

Even when the courts do direct that a Scott Schedule is appropriate, this will generally be limited. I have seen it suggested that this should be limited in time (i.e. incidents from the last year), limited to the ‘worst’ incidents and, in almost every case, limited in number (typically between 5 and 10). As the professionals instructed on the case, we must also limit the schedule to those allegations which are most capable of being proven. Whilst it is completely understood that the court has limited time, and it is not proportionate to rehash the history of a whole relationship, one must be aware of the impact this exercise has on the victims of the alleged abuse. They are told ‘this isn’t bad enough’, ‘this was too long ago’, ‘do you have supporting evidence of this?’; by limiting their allegations so drastically, we are not allowing victims to be heard.

A further trait of a Scott Schedule is that the allegations must be specific. The courts do not like an umbrella allegation to be listed (for example, general physical abuse). They must refer to a time and date (where possible). The difficulty with this is that this is not the way people experience domestic violence. Yes, some people may be able to say, ‘on X date, H punched me’, and may be able to identify 5 incidents like this but, considered in isolation, the impact on the victim cannot be appreciated quite so keenly. It is only when looking at the bigger picture, the full history of the abuse, that one can begin to consider the real impact of the relationship on the victim. As identified in the F v M judgment, this is all the more true when considering abuse such as coercive control, where it is a pattern of behaviour that must be analysed by the court, not simply a string of unrelated incidents.

As Hayden J alludes to in the F v M judgment, it is quite rare for there to be any judicial consistency in private law proceedings. Whilst the courts do aim for some level of consistency, the court staff are juggling multiple diaries and trying to find a listing that isn’t in a year’s time. Sadly though, what this means is that at each stage of proceedings, the parties will face a new Judge who takes a different view in relation to the Scott Schedule. Some will try and reduce an already limited Schedule; others will be critical of the focus of the allegations.

All considered, the process often does not always provide victims with the level of support or understanding that they may need. It is easy to see then, why objections have been raised (most notably in the ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ report) to the current process and use of a Scott Schedule.

Whilst, when asked to comment on this, Hayden J was reluctant to be appear too critical of the process that has been in place for some time now, he was clear that Scott Schedules do not work for allegations like coercive control, where it is imperative for the courts to consider the full history of the relationship and pattern of behaviour, and that such victims must have the opportunity to fully make their case in relation to these allegations. Anyone who read the judgment will appreciate the harm this behaviour can cause, not just on the immediate victim but also any children, and friends/family at large. It is not yet known what impact this will have on the child arrangements, but one can only hope that this judgment will properly set the scene for the Judge at the next hearing.

What is clear from both the F v M judgment, and the ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ report, is that as professionals, we need to be alert to the insidious nature of this type of abuse and how this is presented to the court from the outset. Whilst it seems likely that we will be using Scott Schedules for most allegations for the foreseeable future, it is important to consider each case on its facts and adopt an approach which allows our clients to properly make their case. This will always be a balancing act, considering proportionality and effective use of judicial time, but it is certainly reassuring to know that, where appropriate, we do not need to be constrained by the limitations of the Scott Schedule.

Many of us will no doubt be keeping our ears to the ground to see whether this approach feeds down to the lower courts, and whether these kinds of allegations will be given the airtime they need in private law proceedings.

Coercive control - Maisie Lockyer looks at F v M [2021] EWFC 4 and the appropriateness of Scott Schedules in cases where there are allegations such as coercive control.

Maisie Lockyer is Solicitor in Hanne & Co’s Family & Divorce Law team

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