As we continue to await the Court of Appeal’s decision in four linked appeals involving the welfare of children, which is anticipated to herald new guidance to the Court’s approach to domestic abuse, we question whether Courts should rely upon Scott Schedules, which were originally intended for building disputes, when considering allegations of domestic abuse.
The origin of Scott Schedules
Scott Schedules were originally created by a surveyor, George Scott, for use in building disputes. They continue to be used in building disputes to succinctly set out complaints. It is therefore remarkable that they are now used in family law as the primary document to raise allegations of harm to adults and/or children.
What is a Scott Schedule?
A Scott Schedule is a document setting out the allegations of harm in a table format. The format requires the allegations to be set out in a summary fashion, with further columns referencing the evidence the complainant relies upon in support, the alleged abuser’s summary response to the allegations and, in due course, the Court’s findings on each allegation.
The Court frequently limits the number of allegations which can be pleaded in a Scott Schedule. The number of allegations permitted varies case by case, but frequently seems to be 5 or 6.
Practice Direction 12J and the Overriding Objective
To assess the use of Scott Schedules in Family Law, we must first place them in the context of Practice Direction 12J of the Family Procedure Rules and the Overriding Objective, both of which must be applied by the Court in children proceedings where allegations of domestic abuse are raised that are relevant to the child’s welfare and the safety of the adult.
The purpose of Practice Direction 12J is to protect children and adults from the consequences of harmful behaviour. Under 12J, the Court must at all stages of the proceedings consider whether domestic abuse is raised as an issue. If so, the Court must identify at the earliest opportunity the factual and welfare issues involved, consider whether any allegations would be relevant to deciding whether to make a child arrangements order and to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly. Where domestic abuse is admitted or proven, a child arrangements order for a child to live with or spend time each parent must protect the safety and wellbeing of the child and the parent with whom the child is living.
Simultaneously, under the Overriding Objective, the Court is obliged to deal with matters expeditiously and fairly and in ways that are proportionate to the nature and complexity of the issues.
There is a danger that the Court’s need to deal with cases expeditiously in accordance with the Overriding Objective, especially in light of the well-known time constraints of the Courts, may render a Court’s approach to PD12J only fleeting. Thus, Scott Schedules take centre stage as the Court seeks to reconcile the need to deal with contested allegations fairly and efficiently.
Scott schedules in practice
The shortcomings of Scott Schedules were shown in the recent Court of Appeal judgment of F v M [2021] EWFC 4. In F v M, the Court of Appeal overturned the decision of the High Court not to adduce evidence that the Court of Appeal considered was relevant to the allegations in question, and that it believed may be capable of establishing a propensity that may be relevant to the allegations. While the Judge praised Scott Schedules for their use in “carefully marshalling the evidence and honing down the allegations”, he also highlighted the severe limitations of Scott Schedules in capturing a “pattern of behaviour, possibly over many years”. The Scott Schedules’ formulaic approach, perhaps inevitably from their origins in building disputes, are far from suitable in the context of Practice Direction 12J because condensing a pattern of abuse to a mere list of (say) 5 individual allegations may undermine abuse that has manifested in a pattern of abuse, as opposed to singular incidents. As such, there is also a real risk that the severity of the abuse and its impact upon the adult and the child will be overlooked by the Court.
Similarly, the joint appeal, to which judgment is awaited, also highlights the limitations of Scott Schedules. In one of the judgments being appealed, the mother raised serious allegations which the Judge disregarded as “rather loose allegations of wider control” and chose to focus on the single incidents raised in the Scott Schedule. In doing so, there is a real danger that the Judge ignored relevant harmful behaviour that amounted to coercive control that was relevant to the order being sought.
Are Scott Schedules fit for purpose?
While Scott Schedules were once deemed appropriate and fit for purpose, society’s understanding of domestic abuse has advanced hugely in recent years. There is now resounding agreement that domestic abuse is not necessarily defined as singular incidents; rather, it can include coercive control whereby the incidents of abuse form a pattern of controlling behaviour, which may seem innocuous, but when viewed in the wider context of the pattern of harmful behaviour, amounts to abuse, which can have a severe impact on the adult and child.
As coercive control cannot arise out of a single incident, it is arguably incompatible with the traditional succinct Scott Schedule. A Scott Schedule can, however, continue to be useful to detail singular targeted incidents of abuse.
To get around the constraints of a Scott Schedule, in F v M, a thematic approach was adopted by the mother to evidence coercive control. The approach resulted in an umbrella schedule whereby the allegations were set out under thematic headlines and examples of the behaviour alleged were provided under each headline. Thus, the Court was able to identify a pattern of controlling and harmful behaviour and the severe impact of that behaviour, which would have otherwise been impossible to convey in 5 specific targeted allegations.
Until we have clear guidance from the Court that Scott Schedules are not suitable, we have little choice but to continue to use them. Umbrella Schedules, however, should be borne in mind if there is a danger that the constraints of George Scott’s Schedule will overlook the severity and impact of the allegations, in particular coercive control.
If you need to discuss any of the issues raised in this article please get in touch with the team at Rayden Solicitors.
