30 September 2019
The Terminology of Domestic Abuse, Part 2, from Fact Finding Hearings to Scott Schedules and Findings Documents
Fact Finding Hearings As detailed in Part 1 of this article (posted last month), the amended Practice Direction 12J places an increased focus on issues of domestic abuse, it widened the definition of domestic abuse to include coercive, controlling and threatening behaviour. In cases where such issues are raised, judges should not ignore those allegations and should determine the extent to which they are relevant in deciding what Child Arrangement Orders to make. Frequently this will require a separate Fact Finding Hearing. A Fact Finding Hearing is a type of court hearing that considers the evidence surrounding allegations, and the Court will make a decision as to whether alleged incidents did or did not happen. It is for the person making the allegations to prove that they are true. Where the Court considers that a Fact Finding Hearing should take place in family cases, Practice Direction 12J Para 19 states the Court must give directions as to how the proceedings are to be conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties. In particular it should consider:
- what are the key facts in dispute;
- whether it is necessary for the fact finding to take place at a separate (and earlier) hearing than the welfare hearing;
- whether the key facts in dispute can be contained in a schedule or a table (known as a Scott Schedule) which sets out what the applicant complains of or alleges, what the respondent says in relation to each individual allegation or complaint; the allegations in the Schedule should be focused on the factual issues to be tried; and if so, whether it is practicable for this Schedule to be completed at the first hearing, with the assistance of the Judge
- They are done in landscape format, which is difficult enough to use in a hard copy bundle but may be even more problematic in electronic format.
- Quite often, when drafting the document, the applicant’s solicitors will ‘cut and paste’ allegations contained in the application form that commenced the legal proceedings. Often these allegations are hastily drafted and were not intended to form part of a formal ‘pleading ‘(a pleading is a formal written statement of a party's claims or defences to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjudicated in the action.)
- Because of the columns on the schedule, sometimes dates slip in preparation against the detail of the allegation causing confusion in the Court.
- Despite the fact that control and coercion type of behaviour is usually a persistent course of action by the abuser which needs to be evidenced in some detail by a number of incidents that have taken place, Judges often still limit the number of allegations to be included in the schedule. Many practitioners get round this by putting a small number of headings and then demonstrating the controlling act by providing subheadings.
- It will be submitted on behalf of the mother that the father is antagonistic and unsupportive of the mother. In order to establish this conduct the mother seeks the following findings:
- The child (name) is at risk of suffering significant emotional harm through the antagonistic, unsupportive, argumentative and deliberate undermining of the mother by the father.
- The father has conducted litigation unreasonably in 4 applications over a 4 year period often changing the nature of his application prior to the Court hearing
- The father has used the communication book as an instrument in his unreasonable conduct towards the mother.
- The father has used social media to intimidate and abuse the mother, deliberately to undermine and distress her; the mother’s health is being significantly damaged by the behaviour of the father who has by a deliberate or reckless course of action, unhelpful communication, a deliberate disregard for maternal routine, or a deliberate undermining of the mother’s parental responsibility impacted upon the mother’s health and put the child at risk of emotional harm. The father’s behaviour seeks to oppress, harass and intimidate the mother in order to pressurise her, unreasonably influence her or deliberately harm her.
- The father ‘gaslights’ the mother, persistently manipulating and brainwashing her, which causes the victim to doubt herself and ultimately lose her own sense of perception, identity and self-worth.
- The father uses financial abuse, using or misusing money as a method of pressurising the mother.
- The relationship between the parties is such that the ongoing difficulties in the parties’ relationship will ultimately impact on the child’s health and wellbeing.
30 November 2023