13 Apr 2021
Family & Matrimonial
Over the last year, the number of cases of domestic violence has rocketed, with thousands of victims across the UK trapped at home with their abuser throughout the ongoing lockdowns, feeling that they have nowhere to turn for help and support. In many cases, the lives of these victims are completely controlled by their abusers, leaving them with no freedom or autonomy to make their own decisions, spend their money or see their friends and family.
Recognising the difficulty in identifying and effectively investigating incidents of coercive control and behaviour, a recent landmark case – F V M  EWFC (Fam) – has questioned the appropriateness of some existing tools used in Family Law to capture this type of evidence.
While it has been common for many years during family proceedings for ex-partners to be described as ‘controlling’, this type of abuse has only really been taken seriously since the criminal offence of ‘controlling or coercive behaviour in intimate or familial relationships’ was created under section 76 of the Serious Crime Act 2015.
Although classifying the behaviour as a criminal offence six years ago was a big step forward, domestic violence charities have continued to campaign for further change as it is widely thought that the way in which family courts often approach the issue is unsatisfactory.
Whenever allegations of domestic abuse are made and disputed within family proceedings, the court first needs to decide whether or not the allegations are true, before deciding whether contact between the accused parent and a child is safe. They do this via a process called ‘fact finding’.
The person making the allegations has to set them all out in a document called a ‘Scott Schedule’, which is essentially a list of each allegation. The party who has been accused of the abuse then has to reply to each individual allegation and the court will consider the evidence from each party at a ‘fact-finding hearing’. This is similar to a trial but deals only with the allegations made by one or both parties and often, the court will remove one or more allegations on the basis that they are not serious enough to affect a child’s contact with a parent.
In the case of F V M  EWFC (Fam), however, the court have reconsidered this approach. The mother concerned had made a series of allegations of domestic abuse against the father, including that he had alienated her from friends and family, controlled her money and food and gradually reduced her contact with the outside world. The court noted that, in isolation, some of the allegations appeared to be innocuous yet, when considered in the context of a much wider picture, it was clear that the father’s actions had formed a pattern of acts encompassing assault, intimidation, humiliation and threats that had been intended to harm and frighten the victim.
As a result of this, the court has now reconsidered whether Scott Schedules are appropriate in all cases involving domestic abuse, particularly where coercive and controlling behaviour is concerned. Scrutinising each individual act will no longer be appropriate and it will be essential to consider them in the context of the ‘wider evidential canvas’.
The judgment states: “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.[…] 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.”
This will come as a welcome decision from domestic violence charities, particularly as it follows another significant change made by the courts in December 2020, to allow more homeowners on low incomes to access legal aid, which will have a positive impact on many survivors of domestic abuse.
Prior to this change, many people in the UK on low incomes were being denied legal aid because they were homeowners, when, in reality, they owned so little equity in the home that there was no way they could have afforded legal representation. The rule change will mean that many more survivors of domestic violence will now be able to have legal representation in family proceedings, reducing the risk of having to be cross examined by their abusers in court.
Both of these recent important changes represent a very welcome movement by the courts to reconsider the way in which domestic abuse victims experience the justice system. All too often, victims of abuse are not able to prove their allegations are true because the abuser is careful to ensure that no one action can be considered harmful, and having to then face their abuser in court can be extremely harrowing. These two developments will hopefully go some way towards ensuring better justice for the many thousands of domestic abuse victims across the UK.
Leah Thomas is a senior associate solicitor in our Family & Matrimonial department at Harding Evans and knows how stressful and emotionally draining any legal proceedings regarding your family can be. Our expert and friendly team can advise you on all aspects of family law and will help to minimise the stress and upset involved. For a confidential discussion about your situation, please contact the Family Law team on 01633 244233 or email firstname.lastname@example.org.