The purpose of this article is to distil the recent decisions in F v M [2021] EWFC 4 (Fam) and Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448, both of which relate to the Family Court’s handling of cases involving domestic abuse.

Re H-N and Others

The background

Re H-N (McFarlane P, King LJ and Holroyde LJ) concerned the conjoined appeal of four cases involving fact-finding hearings. I do not intend to go into the facts of each appeal, but for completeness I shall state that three of the appeals were allowed (one in part) and one (Re H) dismissed (on the grounds that the appeal was purely academic in that the Appellant had no desire to stop or curtail the unsupervised contact between the child and the Respondent which was currently taking place).

The Court of Appeal did however seek to give some ‘general guidance’ in relation to how the court approaches cases of domestic violence, most notably on the following issues/questions:

1. Is Practice Direction 12J fit for purpose?
2. What is coercive and controlling behaviour
3. Whether there should be a fact-finding hearing?
4. Scott-Schedules
5. How should allegations of coercive and controlling behaviour be approached in a finding of fact hearing
6. The relevance of criminal law concepts.

Is PD12J fit for purpose?

It should firstly be noted that the Court endorsed PD12J as currently drafted stating (at para 28) ‘We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings.’

What is coercive and controlling behaviour?

The Court recognised that a central concept of the modern definition of domestic abuse was that of coercive and controlling behaviour and further recognised the difficulties and issues of the application of PD12J. In doing so it commended and endorsed the judgment of Hayden J in F v M calling it ‘essential reading for the Family judiciary’ (para 30).

The Court went on to recognise that harm to a child is not limited to actual violence to the child or parent and stated that ‘a pattern of abusive behaviour is as relevant to the child as the adult victim’ and gave examples of how a child can be harmed at para 31:

‘[…] The child can be harmed in any one or a combination of ways for example where the abusive behaviour:
i) Is directed against, or witnessed by, the child;
ii) Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;
iii) Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;
iv) Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.’

In relation to coercive and controlling behaviour (and all other forms of domestic abuse) the Court also endorsed the approach set out by Hayden J of recognising a ‘pattern’ of behaviour as defined in PD12J.

The Court were also clear to recognise that not all behaviour will be classed as abuse and stated at para 32:

‘It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour.’

Should there be a fact-finding hearing?

The Court was clear to endorse the approach set out in PD12J particularly paras 5,16 and 17 (para 35).

It confirmed, having analysed the contents of PD12J, the President’s Guidance ‘The Road Ahead’ and the Overriding Object, that whether a fact-finding hearing should take place will be a question of ‘necessity’ (para 36) and provided the following guidance at para 37:

‘37.The court will carefully consider the totality of PD12J, but to summarise, the proper approach to deciding if a fact-finding hearing is necessary is, we suggest, as follows:
i) The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).
ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.
iii) Careful consideration must be given to PD12J.17 as to whether it is ‘necessary’ to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.
iv) Under PD12J.17 (h) the court has to consider whether a separate fact-finding hearing is ‘necessary and proportionate’. The court and the parties should have in mind as part of its analysis both the overriding objective and the President’s Guidance as set out in ‘The Road Ahead’.’

Scott Schedules

In the course of submissions there was ‘effective unanimity that the value of Scott Schedules in domestic abuse cases had declined to the extent that, in the view of some, they were now a potential barrier to fairness and good process, rather than an aid’ (para 43). There was concern on two fronts, one of principle, in that Scott-Schedules made it difficult for a court to look at a pattern of behaviour when focusing on timed and dated incidents, and one more pragmatic, in that courts were asking that allegations be limited or reduced which could cause a false portrayal of a relationship between two individuals (paras 44 and 45).

The Court accepted the criticism of Scott-Schedules at para 46:

‘46. For our part, we see the force of these criticisms and consider that serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be. This is an important point. Everyone agrees.’

However, at para 49, stated that it could not determine how the information should be presented:

‘49.The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules. This court is plainly not an appropriate vehicle to do more than describe the options suggested by the parties in their submissions during the course of the hearing. It will be for others, outside the crucible of an individual case or appeal, to develop these suggestions into new guidance or rule changes.[…]’

How should allegations of coercive and controlling behaviour be approached in a finding of
fact hearing?

The Court set out a detailed discussion at paras 50-59 of the judgement. Ultimately the Court left the detail to the trial judge but stated at para 56 and para 59 that where one party made allegations of coercive and controlling behaviour then these would be the courts primary focus above individual dated allegations and they should only be determined ‘because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).’ (para 59)

The Court recognised that dealing with allegations of coercive and controlling behaviour without significantly increasing the timescale of private law proceedings was not an easy balance, but gave four ‘pointers’ at para 58 in relation to this:

‘a) PD12J (as its title demonstrates) is focussed upon ‘domestic violence and harm’ in the context of ‘child arrangements and contact orders’; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court;

b) PD12J, paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is ‘necessary’ in order to:
i) Provide a factual basis for any welfare report or other assessment;
ii) Provide a basis for an accurate assessment of risk;
iii) Consider any final welfare-based order(s) in relation to child arrangements; or
iv) Consider the need for a domestic abuse-related activity.

c) Where a fact-finding hearing is ‘necessary’, only those allegations which are ‘necessary’ to support the above processes should be listed for determination;

d) In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other.’

The relevance of criminal law concepts

In short the Court endorsed the approach in Re R (Children)(Care Proceedings: Fact-finding Hearing) [2018] 1 WLR 1821 that ‘it was fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.’ (para 62). They further confirmed that the judgment in Re R prevailed over anything contrary in the judgment of Russell J in JH v MF [2020] EWHC 86 (Fam).

The Court did however clarify that Judges in the Family Court should not shy away from using criminal terms (i.e. rape) in the way that it would be used in ordinary speech, but that they are not required to find that the elements of a criminal offence have been made out, in order to make a finding. (paras 60-74).

Conclusion

For me, the five key points to take away from the recent decisions are:

1. Courts should always be on the lookout for coercive and controlling behaviour in cases where domestic abuse is raised. When is it raised, a pattern of behaviour should be looked at rather than individual (possibly innocuous) incidents.
2. Fact-finding hearings should only be held when necessary and not all negative behaviour in a relationship will be domestic abuse or require a fact-finding.
3. If the court’s focus is coercive and controlling behaviour then this will take precedence over individual incidents unless they are so serious on their own (i.e. rape) or are part of a pattern of behaviour.
4. Scott-Schedules may not always be appropriate, especially for allegations of coercive and controlling behaviour.
5. Criminal definitions should not be used in the family court, but nor should Judges shy away from using or making findings of behaviour described by criminal terms (i.e. rape) when they are words in ordinary everyday use.

Joshua Walters
Fenners Family Group

The purpose of this article is to distil the recent decisions in F v M [2021] EWFC 4 (Fam) and Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448, both of which relate to the Family Court’s handling of cases involving domestic abuse.

F v M

The background

The judgment of Hayden J followed a 10 day fact-finding hearing in the High Court in November 2020. During the course of the hearing the Judge heard evidence from the parents F and M together with M’s parents; evidence from F’s current partner (Ms J), Ms J’s Mother, Ms J’s ex-husband (and Father of her children) and from professionals.

The evidence focused on F’s relationship with his ex-wife (M) and his current partner (Ms J- whose children had been ordered to live with their Father in separate proceedings in Cardiff, after her relationship with F commenced). The evidence demonstrated that principally F’s behaviour resulted in the isolation of M and Ms J. The control of them emotionally, psychologically and financially and that this could be properly categorised as coercive and controlling behaviour.

After setting out in some detail the evidence he had heard, at para 101 of his judgment, Hayden J concluded:

101. I consider F to be a profoundly dangerous young man, dangerous to women who he identifies as vulnerable and dangerous to children. The risks he presents to women are not only to their emotional and physical well-being but also, in the light of my findings, to their sexual safety. It is clear that he has the capacity to cause much harm and distress to those who cross him more generally, particularly those within the sphere of the women he controls. It has been a disturbing case to hear.

The two most crucial aspect of the judgment are a) the analysis of what coercive and controlling behaviour is and how it should be approached by the Court and b) the post script discussion regarding Scott-Schedules.

Coercive and controlling behaviour

At para 102 of his judgment, Hayden J set out the lack of authority in relation to coercive and controlling behaviour:

102. This may be the first time the Family Court, at High Court level, has been called upon to analyse allegations of controlling and coercive behaviour with the kind of detail that this case has required. Certainly, neither Counsel nor I have been able to find any other reported case in our respective researches.

Hayden J sought to pull together the various sources available by analysing the definitions of coercive and controlling behaviour and domestic abuse in PD12J (para 103 and 104) and also the criminal offence of coercive and controlling behaviour in an intimate family relationship as per section 76 Serious Crime Act 2015 (para 105). He concluded that the court when faced with a case of coercive and controlling behaviour should approach it in the following way (para 108-109):

108. I do consider that a tight, overly formulaic analysis may ultimately obfuscate rather than illuminate the behaviour. I respectfully agree with the general approach taken to evaluating evidence expressed by Peter Jackson J (as he then was) in Re BR (Proof of Facts) [2015] EWFC 41 and Baker J (as he then was) in Devon County Council v EB and Others [2013] EWHC 968. Whenever Judges are called upon to resolve issues of fact, we do so by evaluating separate strands of evidence and then considering them in the context of the whole. Some features of the evidence will weigh more heavily than others and evidence which may not be significant, in isolation, may gain greater relevance when placed in the context of the wider evidential canvas. It seems to me that the definition in the FPR (see para 101 above) provides some useful guidance, when it is broken down:

Coercive Behaviour:

1. a pattern of acts;
2. such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises;
3. the objective of these acts is to harm, punish or frighten the victim.

Controlling Behaviour:

1. a pattern of acts;
2. designed to make a person subordinate and/or dependent;
3. achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their everyday activities.

109. The overall approach to the assessment of evidence here is the same as in any other case. What requires to be factored into the process is the recognition of the insidious scope and manner of this particular type of domestic abuse. The emphasis in Section 76 of the Serious Crime Act 2015, is on “repetition” and “continuous engagement” in patterns of behaviour which are controlling and coercive. Behaviour, it seems to me, requires, logically and by definition, more than a single act. The wording of FPD 2010 12J is therefore potentially misleading in so far as it appears to contemplate establishing behaviour by reference to “an act or a pattern of acts”. Key to assessing abuse in the context of coercive control is recognising that the significance of individual acts may only be understood properly within the context of wider behaviour. I emphasise it is the behaviour and not simply the repetition of individual acts which reveals the real objectives of the perpetrator and thus the true nature of the abuse. (my emphasis)

A repeated message throughout the judgement (paras 4, 60, 100, 109-113) is that those dealing with allegations of coercive and controlling behaviour must be cautious before viewing allegations in isolation, particularly where a single act may appear innocuous on its own (as per para 49). As Hayden J puts it at para 4:

4. Key to both behaviours (coercive and controlling behaviour) is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation.

Scott Schedules

At the conclusion of the judgment, Counsel for M invited the Judge to comment of the appropriateness of Scott-Schedules in cases involving allegations of coercive and controlling behaviour.

Although he found it inappropriate to give ‘prescriptive guidance’ and said that there were clear advantages to ‘carefully marshalling and honing down the evidence’, he did recognise that in some cases the formulaic nature of Scott Schedules may not easily capture the behaviour complained about and in some cases, such as M v F a Scott-Schedule may be ‘counterproductive’ as they carry ‘the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour’.

Hayden J concludes his judgment with what could be considered an attack on the Scott- Schedule, but ultimately leaves it to the trial judge or ultimately, The Court of Appeal, to determine on another day:

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.

Joshua Walters
Fenners Family Group