PROVING THINGS 203: EVIDENCE AND SCOTT SCHEDULES IN COERCIVE CONTROL CASES: SCOTT SCHEDULES “INEFFECTIVE AND FREQUENTLY UNSUITABLE”

In  F v M [2021] EWFC 4 Mr Justice Hayden considered issues relating to fact finding in a case of “coercive control”.  Although the difficulties here are in the context of a family case, the issues will have some relevance in relation to civil cases in this, and related areas.

“... 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.”

 

THE CASE

The judge was determining an application by a father for contact with two children.  The main issue in the case was whether the father had “controlling and coercive behaviour”. The judge considered the nature of the evidence required and was critical of the use of Scott Schedules in this context.

THE JUDGMENT ON THE ANALYSIS OF EVIDENCE AND USE OF SCOTT SCHEDULES

The judge considered how evidence should be approached in this type of case.
    1. 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.
    2. For the above reasons and as this case has revealed, it is often difficult for professionals to identify this type of abuse and to be most effective in their investigations. F has repeatedly cast himself as a victim and been accepted as such by the police, in particular, but also by others e.g. neighbours. MGM and MGF were both crudely caricatured as “honour-based killers”. There was not a scintilla of evidence to support this, but it strikes me as having become tacitly accepted, merely because the accusation was repeated and documented. I am also concerned that the lack of challenge may lie in the fact that the grandparents are Hindu and have brown skin. I am left with the impression that an overly anxious cultural sensitivity inhibited more robust forensic enquiry. In simple terms the allegation would have gained no traction at all if a white couple had taken their daughter to a clinic for advice on her pregnancy. The visit to the pregnancy advisory clinic was the sole basis for the spurious allegation that M’s parents were “honour-based killers”. This ought to have been identified and the allegation discounted. That in turn might well have generated a more sceptical assessment of F.
    3. Similarly, the charges laid against T really require some investigation of the credibility of F. It is an understatement in this case to say that F lacks credibility. He is at times a fantasist. There is an abundance of evidence pointing towards F’s unreliability as a witness which is there to be harvested by the police and which has not been.
    4. I am not intending to be gratuitously critical in the above passages. I recognise that busy professionals in all spheres investigating individual incidents may not be well placed to contextualise those incidents in the context of wider and more general behaviour. However, there will frequently be clues, hints, indicators and triggers in what people report which might stimulate wider forensic curiosity and precipitate investigations of greater subtlety and nuance. I do not believe this to be a naïve aspiration. Much of the evidence that I have set out indicates how the families, friends, work colleagues and neighbours knew what was happening to these two women and from an early stage. Broader professional education on the scope and ambit of coercive and controlling behaviour is likely, in my view, to generate greater alertness to abuse of this kind which too frequently lies buried or only superficially investigated. On a practical level communication and sharing of information between different police forces should be regarded as an imperative.
    5. Ms J’s case illustrates a further dilemma. Her mind has become so overborne by F’s behaviour that her own autonomous decision making has become compromised. Mr Barnett-Thoung-Holland has advanced his client’s case sensitively but with complete fidelity to his instructions. In his written submissions he has referred to “gaslighting”. I have heard no evidence about this, and I am not familiar with the term, but in so far as it coins an expression for behaviour which leads a person to question their own thoughts and perceptions and yield to those of others, it accurately reflects Ms J’s situation. At present she remains resistant to those who wish to help her and adamant that she requires no help. She is surrounded by people who care for her, not least her sons who worry about her. I hope that she may find a bridge back to her family and to those parts of her former life which meant so much to her.
Post Script
Ms Jones has invited me to make comment on the use of Scott Schedules (i.e. a table identifying the allegations and the evidence relied on in support) in cases involving this category of domestic abuse. Having given the matter considerable thought I have come to the clear conclusion that it would not be appropriate to give prescriptive guidance. 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. As I have commented above, what is really being examined in domestic abuse of this kind is a pattern of behaviour, possibly over many years, in which particular incidents may carry significance which may sometimes be obvious to an observer but to which the victim has become inured. It seems to me that what is important is that the type of abuse being alleged is made clear to the individual who is said to be the perpetrator.
An intense focus on particular and specified incidents may be a counterproductive exercise. It carries the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour. This was the issue highlighted in the final report of the expert panel to the Ministry of Justice: ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ (June 2020). 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.