Adrian Barnett-Thoung-Holland is a family law barrister at Coram. His practice encompasses financial remedies and private disputes regarding children and he sits on Coram’s Board of Directors. He recently wrote a series of popular blogs on “Lawyers in Lockdown” which can be found here. In this article, he examines what F v M means for Scott Schedules in cases of coercive control.
I appeared for the applicant in the recent matter of F v M [2021] EWFC 4 at the closing stages of 2020. In this particular case, there was a significant history of coercive and controlling behaviour at the forefront of the Mother’s case. The forensic challenges with this sort of behaviour are well known and family practitioners and the courts have become increasingly familiar with these types of cases. Before now, no matter had come to the High Court of this magnitude and level. As Hayden J put it:
[4] …There has been very little reported case law in the Family Court considering coercive and controlling behaviour. I have taken the opportunity below, to highlight the insidious reach of this facet of domestic abuse. My strong impression, having heard the disturbing evidence in this case, is that it requires greater awareness and, I strongly suspect, more focused training for the relevant professionals.
The facts are complex and I cannot do justice to them in summation. The level of coercive and controlling behaviour alleged in this case was extensive; following a history of some years where F was alleged to have isolated M from her parents, travelled across the country to escape her family and left her isolated and without modes of communication to anyone else. This was a young couple who left university after meeting in the opening weeks, M getting pregnant in short order and a wedding without the involvement of the extended family, among other things.
The next element of the case is that, sometime after the conclusion of M’s relationship with F ended when she fled to her parents, F’s name appeared in the records of a Local Authority elsewhere, involving another family – here a woman in her forties with two children, separated from their father. The allegations were developed by the claim that F had repeated the same behaviours with this second woman as he had been alleged to have with M; isolating this woman from her extended family, controlling her interactions etc.
This is not the entirety of the allegations. There were extensive allegations of rape which formed part of the judgment. There is also an allegation folded within the narrative that the police took no action having made a number of cultural assumptions about M’s family which slowed their response to rectifying the circumstances in which she found herself. I do not intend to discuss those matters in this brief note.
Our focus today is on the latter part of the judgment – the sufficiency of Schedules of Allegations as vehicles to litigate allegations of coercive and controlling behaviour.
Coercive and Controlling Behaviour
Hayden J points to the two best definitions we had at the time of the hearing – the first being the criminal jurisdiction per s.76 Serious Crimes Act 2015 (the offence of controlling or coercive behaviour in an intimate or family relationship), the second being the provisions included in PD12J, FPR 2010. Somewhere in there, between the two, lies a workable definition we can deploy. Coercive and controlling behaviour is a type of domestic abuse which is insidious in nature. I described it as ‘transactional’ – something which, by its very nature can distinguish it from physical abuse but also communicates a continuous pattern.
It grows and evolves over an extension period of time. It cannot be described as traditionally cumulative either – more incidents do not necessarily increase the measurable distress just by sheer weight. The level of disruption and disturbance to the complainant, so as to render them submissive or dependent, varies from event to event, all part of a single tapestry.
In fact-findings, Scott Schedules are deployed to focus the hearing – to give the complainant the opportunity to identify the allegations, while the alleged perpetrator knows the case they are answering. But here, it clearly wasn’t appropriate, or indeed possible, for the respondent to itemise a history of this kind.
In some ways, F v M is remarkable because the narrative itself required the court to examine it as a continuous relationship – it was plainly impossible to isolate and examine individual incidents without understanding the context. That is not readily apparent in every case of this kind.
The Problem with Scott Schedules
As Hayden J put it in his post script:
‘…I can see that what I have referred to as a particularly insidious type of abuse may not easily be captured by the more formulaic discipline of a Scott Schedule. As I have commented above, what is really being examined in domestic abuse of this kind is a pattern of behaviour, possibly over many years, in which particular incidents may carry significance which may sometimes be obvious to an observer but to which the victim has become inured. 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. This was the issue highlighted in the final report of the expert panel to the Ministry of Justice: ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ (June 2020). It is, I hope, clear from my analysis of the evidence in this case, that I consider Scott Schedules to have such severe limitations in this particular sphere as to render them both ineffective and frequently unsuitable. I would go further, and question whether they are a useful tool more generally in factual disputes in Family Law cases. The subtleties of human behaviour are not easily receptive to the confinement and constraint of a Schedule. I draw back from going further because Scott Schedules are commonly utilised and have been given much judicial endorsement. I do not discount the possibility that there will be cases when they have real forensic utility. 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.’
It is self-evident that Scott Schedules are deficient when it comes to allegations of coercive and controlling behaviour. The Scott Schedule, as a document, is predicated on a single moment in time – a single incident among a collection of five-six. To that single incident, there is evidence that supports the complainant’s version of events and evidence that challenges, put forward by the alleged perpetrator. The process of examining that allegation is conducted by hearing both sides in evidence, considering the evidence in the round and making determinations in either direction. Repeat the process with five individual allegations and that is, supposedly, how fact-finding hearings function. For (temporally) isolated incidents of physical or sexual abuse this is entirely straightforward.
In this case, the history of coercive and controlling behaviour was part of a fabric – even though we rendered the allegations down into a Scott Schedule as we would normally, it was apparent from the start of the hearing that the approach I mentioned above would simply not work. The case, by its interlocking nature, did not permit the Scot Schedule being deployed in a sensible way – the evidence flowed around the entire narrative, going hither and thither into each of the allegations and linking inexorably into one narrative.
A Solution
I refer to a very important article produced by John Jackson at Parklane Plowden: ‘The tension between domestic abuse, control and coercion, Scot Schedules and the welfare of the child,’ [2020] Fam Law 218 which presents, what I think is the best solution to this problem.
John Jackson’s very powerful alternative is a ‘findings document’, akin to a threshold relied upon in public law children proceedings and never seen in private law proceedings. This is ‘objective based’ rather than ‘incident based’ if I can put it that way.
I quote the fictional example John uses directly from his article by way of illustration:
a. It will be submitted on behalf of the mother that the father is antagonistic and unsupportive of the mother. In order to establish this conduct the mother seeks the following findings:
- The child (name) is at risk of suffering significant emotional harm through the antagonistic, unsupportive, argumentative and deliberate undermining of the mother by the father.
- The father has conducted litigation unreasonably in a number of applications over a 4-year period often changing the nature of his application prior to the court hearing.
- The father has used the communication book as an instrument in his unreasonable conduct towards the mother.
- The father has used social media to intimidate and abuse the mother deliberately to undermine and distress her. The mother’s health is being significantly damaged by the behaviour of the father who has, by a deliberate or reckless course of action, engaged in unhelpful and abusive communication and shown a deliberate disregard for maternal routine.
- The father has deliberately undermined the mother’s parental responsibility by making persistent derogatory remarks about the mother. This level of consistent misconduct not only impacts on the mother’s health but puts the child at risk of emotional harm. The father’s behaviour seeks to oppress, harass and intimidate the mother in order to pressurise her, unreasonably influence her or deliberately harm her.
b. The father ‘gaslights’ the mother, persistently manipulating her and causing the victim to doubt her or himself, and ultimately lose her or his own sense of perception, identity, and self-worth (give examples from mothers statement).
c. The father uses financial abuse using or misuses money as a method of pressurising the mother
d. The relationship between the parties is such that the ongoing difficulties in the parties’ relationship will ultimately impact on the child’s health and well-being.
The simple problem with coercive control as a type of domestic abuse is that it is inconvenient to a Scott Schedule. It does not happily subdivide into ‘individual pieces’ which can be found on their own evidence. If we reduce the exercise to a list of allegations in coercive control cases as Schedules of Allegations would have us do, then the pursuit of the allegation becomes meaningless. We have broken the pattern of behaviour and we resort to examining each incident on its own. We miss the point of the allegation entirely.
The advantage of John’s approach is that the allegation is drafted in a way which focuses the court’s attention. The allegation is broadly defined, to cover an entire transactional history without reducing it to instances and singular moments. It avoids the programme of reducing allegations to five or six – something that is unhelpful a lot of the time anyway – and instead focuses overall on what needs to be proved.
Yet, while Hayden J’s post script tells us part of his thinking, it goes not further: ‘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.’
We will have to wait and see.
ADRIAN BARNETT-THOUNG-HOLLAND
