Domestic Abuse is an important area of Family Law which forms part of the foundation of the Family Courts. A recent decision in the Court of Appeal in H-N and Others (children), has provided some guidance as to evidential matters in Domestic Abuse applications.
Domestic Abuse is defined by the UK government as being “any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence, or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality.
Domestic abuse applications require consideration as to:
- Whether there should be a fact finding hearing;
- The use of a Scott Schedule to plead your case;
- How should an allegation be approached, where a fact-finding hearing is needed;
- The relevance of criminal concepts in the application
Should a Fact-Finding Hearing be used in Domestic Abuse matters?
In this case the Court stated that Fact-Finding Hearings should only be used where it is deemed necessary. Cafcass is likely to be more involved in whether such applications including potentially having enhanced gatekeeping assessments prior to applications being listed for a Fact-Finding Hearing.
A Fact-Finding Hearing is used where there is one or more issues which the parties disagree on or allegations which need consideration by the Family Court.
Moving away from Scott Schedules
The Court also suggested that Scott Schedules were less helpful and there should be a move away from using them in Domestic Abuse matters. However, there has been no guidance and there is yet to be a procedural update or Practice Direction. As a result, these are still required.
A Scott Schedule is a schedule or table, which is used in court proceedings in the Family Court to clearly set out the allegations of the parties.
Patterns of Control – the Key to Domestic Abuse
Domestic Abuse is usually evidenced by a pattern of coercive or controlling behaviour and the Court will review such patterns when it considers the risk of allowing or continuing contact with children. Identifying patterns is generally more straightforward than providing evidence of specific actions and as such the need to prove specific allegations is not necessary where a pattern is the primary issue to be considered, unless the allegations are significantly serious and justify further consideration.
Coercive Control is not a legal term. It is referred to as being psychological and emotional abuse, manipulation, and oppression of women between the ages of 18-29. However, victims can be women in other age groups and men. There is often a pattern which the victim may not recognize but outsiders do. Commonly, coercive control includes limitation of autonomy; surveillance and restrictions on the use of devices and technology; controlling eating, lifestyle and what someone wears; and power or control in the bedroom.
What does this mean for the way Domestic Abuse applications are handled by the Court?
Taking a general view of the patterns of behaviour between the applicant and respondent enable the Court to consider risk in the round and not focus on specific dates which may skew the picture and fail to protect the individuals who need such protection. Scott Schedules are still used but reform is likely.
If you are making an application of Domestic Abuse, or defending one, you should be considering both individual allegations and patterns of behaviour within the relationship. Cafcass is likely to have more involvement in the application, recommendations, and the direction of your matter, and the Court’s deference towards Cafcass’s assessment will become more increasingly important as a way of filtering applications and matter management.
Sima is experienced in all Domestic Abuse applications, and Fact-Finding Hearings. If you need assistance with any of the above issues or require support with your application, please contact Sima directly by calling 02073531746 or via email: clerks@simanajma.com.
