The UK Court of Appeal issued a landmark decision that is expected to guide the family court’s approach to allegations of domestic abuse. The case, Re H-N and Others (Children), involved four appeals involving the welfare of children in which at least one parent accused the other of domestic abuse.
In this regard, the court used the opportunity to provide general guidance on fact-finding procedures, controlling and coercive behavior, the use of Scott Schedules, and the applicability of criminal law concepts.
When dealing with domestic abuse cases, the judiciary must understand the subtle nature of controlling and coercive behavior, as well as its role in perpetuating harm against the other parent and the couple’s child. While it upheld the general guidance provided by Practice Direction on Child Arrangements and Contact Orders: Domestic Abuse and Harm in terms of fact-finding, it noted that difficulties in its interpretation and implementation have arisen.
It summarized and specified the “proper approach,” emphasizing the importance of considering the nature of the allegations, the extent to which the decision on the allegations would be relevant for deciding on the child arrangements order, conducting fact-finding with a risk-assessment and impact of the alleged abuse on the child, and so on.
The Scott Schedules, which are used by family courts to delineate issues in dispute, were found to be ineffective because they only “identify specific factual incidents tied to a specific date and time, and risk failing to focus on the larger context and whether there has been a pattern of coercive and controlling behavior.” As a result, the court ruled that the Scott Schedules are now “a potential barrier to fairness and good process” and that it is time to “move away” from them.
Finally, it was determined that courts should “avoid analysing evidence of behavior by direct application of criminal law” due to the dual concerns of the potential psychological impact of sexual assault on a victim and the need for family courts to “avoid being drawn into an analysis of factual evidence based on criminal law proceedings.” The court praised the legal aid provided to mothers, pro bono representation provided to fathers, and submissions made by intervening bodies, which allowed the court to adequately account for all perspectives on the issue.