Getting off 'Scott free'? Pupil barrister Lewis Harrison considers the future of Scott schedules in family law domestic abuse cases

25 JANUARY 2021

Getting off Scott free?

To those who practice in Family Law, controlling and coercive behaviour is regrettably a familiar domestic abuse allegation. The judgment of the Honourable Mr Justice Hayden in F v M [2021] EWFC 4 (Fam) provides a thorough and illuminating analysis of the complexities and intricacies of such abuse. Furthermore, in his ‘Post Script’ remarks, Hayden J cast doubt over the appropriateness of using Scott Schedules as means of litigating allegations of domestic abuse. This article will consider whether Scott Schedules are an outmoded document or a useful practical tool.


Case Overview

F v M is a judgment from a fact-finding exercise conducted in the High Court as part of F’s application for contact with his and M’s children, Y (6) and S (3).

The judgment is a meticulous, methodical and measured analysis of the impact of coercive and controlling behaviour upon the victims of F’s domestic abuse, M and Ms J. It becomes apparent that both women were subjected to very similar manipulation and psychological abuse from F. The judgment outlines a level of coercion that resulted in both women being isolated from friends, family, work and education. A striking element of the judgment was that at no stage were there allegations of physical violence. In fact, M was adamant that this had not happened.[1] M and Ms J were subjected to a regime of cruel manipulation and abject domination.

Hayden J made significant findings of fact against F and in his analysis states:

“understanding and evaluating coercive and controlling behaviour requires isolating what may sometimes seem to be relatively innocuous incidents and locating them in a context which illuminates their greater significance.”[2]


Dealing with Coercive and Controlling Behaviour

When considering ‘coercive’ and ‘controlling’ behaviours Hayden J states:

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. There has been very little reported case law in the Family Court considering coercive and controlling behaviour … 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.”[3]

In 2014, the definition of domestic abuse in Practice Direction 12J in the Family Procedure Rules 2010 was amended to include the terms ‘coercive behaviour’ and ‘controlling behaviour’ within the definition of ‘domestic abuse’, all 3 are defined in paragraph 3:

   “domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;

coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour”

PD 12J outlines the significant risk of harm that domestic abuse poses to children and places an onus upon the court to consider if domestic abuse is an issue in the case at all stages, but specifically at the FHDRA stage. The courts are told to determine the need for a fact-finding hearing as soon as practicable in order to aid in assessing the present risks.

Having determined that a fact finding is necessary, the court is required to make directions as to how to conduct proceedings in a fair and proportionate manner. Of the factors listed in paragraph 19, subsections (c) and (d) are of relevance to this article. Namely that the court under subsection (c) should consider if the key facts can be contained in a Scott Schedule, and under (d) should consider what evidence is required to determine the existence of coercive, controlling or threatening behaviour.

Hayden J calls for a change in the education of professionals in relation to coercive and controlling behaviour in a hope that this will aid the identification of this pattern of behaviour and alter the way in which the courts consider domestic abuse of this ilk. ‘Post Script’ he remarks:

“Whilst I entirely see the advantage of carefully marshalling the evidence and honing down the allegations, I can also 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”[4]

The underlying issues with Scott Schedules, as identified by Hayden J, is that the intricacies of human behaviour are not easily conveyed in the rigid format of a Scott Schedule. Focusing on specific incidents may be counterproductive and risks obscuring the nature of harm caused by a pattern of behaviour. This judgment focused on their application in cases where coercive and controlling behaviour is alleged, however, Hayden J also casts doubt on their use in Family Law generally.


The end of Scott Schedules?

Practically speaking, Scott Schedules provide a neat and simple breakdown of each individual allegation of domestic abuse. By providing an outline of what findings are needed in a fact-finding exercise the process of litigating these issues is made simpler, and satisfies the need for the alleged perpetrator to understand the allegations they face and to respond as appropriate. However, F v M provides an analysis that might signal the beginning of the end for the Scott Schedule.

I am particularly drawn to the sentiment raised in the Ministry of Justice’s ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ (June 2020) Report that little has been done to adapt the procedure for investigating coercive and controlling abuse since its addition to the definition of the term ‘domestic abuse.’[5] The Scott Schedule potentially encapsulates this best, and drives the need for a change in approach. It is unsatisfactory in some regards that, unlike instances of physical and sexual abuse, controlling behaviour is not easily recorded and when dismantled hard to analyse in isolation.[6] However, it is that logic that needs amending. The way in which we conceptualise and approach litigating allegations of controlling and coercive behaviour needs to be rethought. Domestic abuse, as apparent in F v M, is a behavioural regime and not a series of events.

Within the context of a more archaic understanding of domestic abuse, i.e. solely domestic violence or acts of sexual abuse, Scott Schedules do have practical advantages, because they record examples of tangible events which in themselves constitute significant incidents of harm and in many ways provide a mechanism to quantify the level of abuse. However, as was proven in Hayden J’s judgment, coercive and controlling behaviour has an equally tangible impact upon an individual, if not arguably a greater psychological impact than being the victim of physical assaults.

When considering coercive and controlling behaviour, the whole is greater than the sum of its parts and the utilisation of the Scott Schedule as a case management tool, namely that “Scott Schedules appear to have become the primary mechanism for restricting the scope of fact-finding hearings” raises some concerns. [7] It is common practice for allegations to be limited to maybe 4-6 instances and in so doing the court risks not conducting a full analysis of the alleged pattern of behaviour, which in turn could pose significant risk to parent and child.[8] Furthermore, the practice of limiting the number of incidents of domestic abuse risks cherry-picking the more ‘serious’ incidents which tend to gravitate towards instances of physical abuse. This issue was raised in the MoJ report in which it states:

“This leaves out the more mundane and repeated forms of abuse which might have had the greatest psychological impact on the victim and/or the children.”

One member of a focus group stated that “The real damaging stuff is the stuff you can’t put on the Scott schedule” and another was subjected to a £1,000 cost order because her schedule was too long. [9] The practice of limiting the number of allegations in a schedule results in the most subtle behaviours, that might collectively result in a significant finding, going un-investigated. This risks a situation in which the court has half the picture only. The true risk of harm to the victim and their children may in those circumstances remain unknown.

F v M serves as a reminder of the psychological harm and trauma that controlling and coercive behaviour has upon victims. The judgment posits the need to consider the pattern of behaviour of domestic abuse perpetrators in order to fully comprehend the level of harm caused and consequently the risk of harm to any children concerned.

Whilst stopping short of prescribing a move away from the use of Scott Schedules as a means of presenting allegations, Hayden J highlights the limitations of the document. A greater degree of care is required in considering whether the use of a Scott Schedule is appropriate in the particular circumstances of the case and whether it allows for the best analysis of the evidence. 

F v M signals a juncture at which we consider whether the practical benefits of the use of Scott Schedules outweigh the risk of perpetrators of manipulative and sophisticated domestic abuse getting off scot free. It may be that the time has come to step away from the rigidity of the document and to go Scott free.


Lewis Harrison

Pupil Barrister

9 Park Place Chambers