Scott Schedules: a hindrance, or an aid?

An article by pupil barrister Conor Flaherty.

This article will discuss the family court’s current approach to pleading allegations of controlling and coercive behaviour in private Children Act proceedings.

The Scott Schedule was a previously well endorsed method of pleading allegations of domestic abuse. The status of the Scott Schedule has however severely diminished with them being viewed as a hindrance rather than an aid with respect to pleading allegations of controlling and coercive behaviour.

The only judicial endorsement which they have recently received is to plead serious single incident allegations. Despite guidance offered as to alternative methods of pleading in case law, guidance from the President of the Family Division Sir Andrew McFarlane, and Practice Direction 12J, no single alternative method has been fully endorsed. A potential solution is respectfully suggested at the end of this article which is a variation of the Scott Schedule which is hoped serves the needs of the judiciary, the complainant, and the respondent.

Judicial comments on Scott Schedules

In the postscript of F v M [2021] EWFC 4 Hayden J commented on the utility of Scott Schedules in pleading allegations of controlling and coercive behaviour and considered them to have such severe limitations that they were considered ineffective and unsuitable. Hayden J stopped short of condemning their use outright but went so far to question whether generally they were a useful tool in factual disputes within family law cases.

In Re H-N and Others [2021] EWCA Civ 448 the President of the Family Division Sir Andrew McFarlane indicated that the value of Scott Schedules had declined and stated at [43] that they are “a potential barrier to fairness and good process, rather than an aid”. It was also stated at [45] that the practice of limiting allegations to be tried at a fact-finding and distilling the allegations of controlling and coercive behaviour into a Scott Schedule had the following effect: “the court is said to have robbed itself of a vantage point from which to view the quality of the alleged perpetrator’s behaviour as a whole and, importantly, removed consideration of whether there was a pattern of coercive and controlling behaviour from its assessment.” Despite this, at [41] it was conceded that the allegations of controlling and coercive behaviour need to be summarised and organised in a structured manner so that the case which the respondent has to meet is clearly presented. Accordingly, it is important that a balance be struck in order to reconcile the two competing needs, a pleadings document that affords flexibility to plead patterns of behaviour whilst also spelling the case out against a respondent clearly.

In Re H-N and Others at [59] it was indicated that Scott Schedules have some limited utility when it comes to pleading allegations that are so serious that they justify determination irrespective of any alleged pattern of controlling and coercive behaviour (i.e. an allegation of rape). This was further clarified by Sir Andrew McFarlane at [61] in A v B [2023] EWCA Civ 360: “…there may, on the facts of a particular case, be an allegation or allegations that are so serious that, in the context of the child welfare issues in that case, they should be determined irrespective of any alleged pattern of coercive or controlling behaviour.” As practitioners are aware it is not uncommon for cases to have allegations of controlling and coercive behaviour and single incident allegations running concurrently, accordingly it is also important that a pleadings document affords the drafter such flexibility.

In Re H-N and Others at [46] Sir Andrew McFarlane also stressed the need for alternative methods of pleading to be developed to summarise and organise the matters to be tried at a fact-find so the case against a respondent is clearly spelled out but the method used does not distort the focus of the court proceedings in a way in which the allegations of controlling and coercive behaviour are presented. Despite hearing alternative methods of pleading made by the parties in submissions (threshold type document, particulars of claim and a narrative statement) at [49] the Court of Appeal stated that it is “not an appropriate vehicle to do more than describe the options suggested by the parties in their submissions during the course of the hearing.”

In GK v PR [2021] EWFC 106 at [22] Peel J was doubtful of the utility which Scott Schedules pleaded patterns of controlling and coercive behaviour in an incident by incident way. Peel J was concerned that the court deprives itself of a holistic view of the behaviour and risks that some incidents may be overlooked. Peel J did however state that Scott Schedules have some limited use when a complainant alleges a small number of specific incidents without asserting a pattern of behaviour. However, at [47] the option of directing a Scott Schedule was still open to the judge of the subsequent directions hearing (being expressly listed as an option by Peel J, albeit not the more likely option).

How do we move away from Scott Schedules?

This was the question posed by Judd J at [32] in AA v BB [2021] EWHC 1822, when setting aside a decision to exclude evidence that went beyond five allegations in a Scott Schedule in establishing a pattern of controlling and coercive behaviour and ordering that the mother file a narrative statement detailing the controlling and coercive behaviour. She commented: “Whilst it was accepted that there needed to be a move away from the use of Scott Schedules in this way, quite how this is to be achieved is another matter”.

The following guidance on pleading allegations of controlling and coercive behaviour is provided:

• Practice Direction 12J 19(e)– the parties can be directed to “file written statements giving details of such behaviour and of any response”.

• Concise statements– in Re JK (A Child) (Domestic Abuse: Finding of Fact Hearing) [2021] EWHC 1367 Pool J at [27] offers guidance on how to structure concise statements following witness evidence (once determined that a fact find is necessary)
• A summary of the nature of the relationship
• A list of the forms of domestic abuse that the evidence is said to establish
• A list of key specific incidents said to be probative of a pattern of coercion and/or control
• A list of any other specific incidents so serious that they justify determination irrespective of any alleged pattern of coercive and/or controlling behaviour
• The Court would need to know which specific allegations listed at (d) were admitted or disputed, but need not have formal responses to the other sections of the statements

• Clustering– in Re B-B (Domestic Abuse: Fact-Finding) [2022] EWHC 108 Cobb J at [6] offered guidance on how the court could approach pleading allegations of domestic abuse in a holistic sense: “The benefit of considering the evidence relevant to each different form of alleged domestic abuse in ‘clusters’: thus, it was useful to ‘cluster’ the evidence which went to the issue of alleged physical abuse; separately I considered the evidence of the allegations relevant to sexual abuse, separately emotional abuse, separately financial abuse and so on.”

• In ‘Fact Finding Hearings and Domestic Abuse in Private Law Children Proceedings Guidance for Judges and Magistrates’, Sir Andrew McFarlane  offers the following guidance;
• Allegations that can be clearly defined (such as specific incidents of physical abuse) may be suitable for reduction to a schedule.             
• Other allegations that require the court to take a broad overview and look at patterns of behaviour (such as coercive and controlling behaviour) are likely to require a statement.
• A hybrid of the two, dividing types of abuse into clusters to provide an overview akin to a threshold document in public law proceedings might be appropriate.
• Require a like for like document in response from the alleged perpetrator.

Proposed Variation to the Scott Schedule

Illustrated below is a variation of the Scott Schedule which could be  a single solution. In the event that a fact-finding is deemed necessary following the exchange of concise statements and any relevant disclosure (such as medical and police disclosure), the parties should be directed to file Scott Schedules in preparation for the fact-finding. It should be divided into Schedule 1 allegations (Findings of Fact sought for Single Incidents) and Schedule 2 allegations (Findings of Fact sought for Patterns of Behaviour).

The advantage of this variation of Scott Schedule is that it meets the court’s needs by clearly identifying the facts in dispute and separates the pleadings into single incidents and patterns of behaviour with the allegations cross referenced to any corroborating statements and relevant disclosure. This allows the court flexibility to either assess the evidence in a holistic sense or by adopting an incident-based approach.

For the complainant it affords flexibility to plead allegations on the basis of a singular incident which is not part of a pattern of behaviour in addition to allegations constituting a pattern of abusive behaviour; the same is demonstrated by allegation 1(a) “The Respondent punched the Applicant in the face following a verbal disagreement.” and allegation 2(b) Physical Abuse (Coercive Control) “The Respondent would physically assault the Applicant if he was displeased with the Applicant’s cooking.” These allegations both involve physical abuse, yet the complainant can select which of the instances of physical abuse are a one-off incident/not part of a pattern of abuse or alternatively are indicative of a pattern of abuse. The complainant is also able to plead such allegations with precision by cross-referencing the allegations to their narrative statement and supporting evidence.

The advantage for the respondent is that the case against them is clearly spelled out and they are afforded an opportunity to accept or deny any allegations and cross-reference any reply to their concise statement in response and any corroborating evidence in the court bundle. For the judiciary, although the below may raise debates regarding how many examples of the sub allegation might be sufficient to establish a pattern of behaviour, it is ultimately a matter for the trial judge to determine when considering the evidence holistically whether a pattern of behaviour is established and therefore a schedule 2 finding is made out on the evidence. Each schedule 2 pleading is intended to focus the trial judge’s attention as to whether a pattern of behaviour is made out by cross-referencing the examples of the behavioural pattern which are capable of establishing the same.

HYPOTHETICAL APPLICANT’S SCOTT SCHEDULE