The UK Court of Appeal on Tuesday pronounced a landmark judgement expected to guide the family court’s approach towards allegations of domestic abuse. The case, Re H-N and Others (children), was concerning four appeals involving the welfare of children where allegations of domestic abuse had been made by at least one parent against the other. In this regard, the court took the opportunity to provide general guidance on issues of fact hearing, controlling and coercive behaviour, the use of Scott Schedules, and relevance of criminal law concepts.

It noted that the judiciary, when dealing with domestic abuse cases, needs to understand the subtle nature of controlling and coercive behaviour and its role in perpetuating harm against the other parent and the couple’s child.

In relation to fact-finding, while it upheld the general guidance provided by the Practice Direction 12J on Child Arrangements and Contact Orders: Domestic Abuse and Harm (PD12J), it noted that difficulties have arisen in its interpretation and implementation. It summarised and stipulated the “proper approach” that highlighted the need to consider 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 view of risk-assessment and impact of the alleged abuse on the child, etc.

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 particular date and time, [and] are at risk of failing to focus on the wider context and whether there has been a pattern of coercive and controlling behaviour.” The court thus ruled that the Scott Schedules were now “a potential barrier to fairness and good process” and it is now time to “move away” from them.

Finally, it held that courts should “avoid analysing evidence of behaviour by the direct application of the criminal law” due to 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 appreciated the legal aid to mothers, pro bono representation for fathers, and submissions by intervening bodies that allowed the court to adequately account for all perspectives on the issue.