Domestic violence and domestic abuse
The term "domestic violence" has historically been widely used to refer to abuse within relationships however the distinction between domestic violence and domestic abuse is a crucial one. In March 2013, a cross-government definition of domestic abuse was put in place. This redefinition recognised that physical violence is only one of numerous forms of domestic abuse. It is in fact the non-physical forms of domestic abuse, including emotional abuse, psychological abuse, financial abuse and coercive and controlling behaviour, that are often considered by victims to be the most acute and harmful.
Controlling and coercive behaviour
As of December 2015, controlling and coercive behaviour was made a criminal offence. Under section 76 of the Serious Crime Act 2015 it is now a criminal offence to repeatedly or continuously engage in behaviour in an intimate family relationship that is controlling and coercive, where the behaviour has a serious effect on the victim.
Case law has indicated that such behaviour will typically involve a pattern of acts, the impact of which must be assessed cumulatively and rarely in isolation. Hayden J in his judgment in F v M [2021] EWFC 4 listed some of the features of coercive and controlling behaviour, including:
- isolating a person from friends and family;
- monitoring them;
- taking control over aspects of their everyday life;
- depriving them access to support services;
- financial abuse;
- threats;
- criminal damage; and
- reputational damage.
Many of the above behaviours are not, when taken individually, criminal acts. It is not a crime in itself to demand your partner not see their family, or to tell a partner what to wear, or to convince someone they are worthless or to create an atmosphere in which a stony silence or snide comment could make someone fear for their life. Controlling and coercive behaviour is the combined effect of various acts taken in their entirety. Alleging a single example of this type of behaviour to the police is unlikely to be taken seriously. Indeed people subjected to coercive control may not realise that their treatment constitutes abuse – it is a feature that makes this type of abuse so dangerous.
After analysing what types of behaviour coercive control might entail his judgment in F v M, Hayden J went on to query the usefulness of Scott Schedules.
Scott Schedules
Where there are disputed allegations of domestic abuse made in private children proceedings, a Court may consider a fact finding hearing necessary to determine the factual background upon which the case should proceed.
Allegations of domestic abuse are often presented to the Judge at a fact finding hearing by way of a "Scott Schedule". This is a document in table format, detailing the dates of the incidents, brief details of the incidents and referencing evidence in support. The alleged perpetrator may respond to the Scott Schedule in the same format, and a further column may be added for the Judge to list which allegations are deemed true (in part or full) and/or false. Both parties would usually also file statements providing further background , but it is the Scott Schedule that is generally used as the route map for the Judge.
In the interest of narrowing the scope of the issues, Judges may direct that the Scott Schedule is limited in some way, for example by requesting that it includes only those incidents which: i) exemplify the most serious 4-6 events; ii) occurred within the last 12 months; and/or iii) involved the child/children which is the subject of the application.
Scott Schedules, particularly when restricted, are potentially inadequate to represent allegations of coercive control for the following reasons:
- Content: Coercive control is made up of a series of acts; a pattern of behaviour - typically a repetitious, pervasive and systematic exercise in control. Limiting evidence to the "top 5" examples is a non-sequitur. A single (or 5) examples is unlikely to effectively capture the full impact of the abuse, which may have persisted for years.
- Time frame: On average, a domestic abuse victim will make 7 escape attempts before leaving an abusive partner for good. Relationships involving domestic abuse can last for decades. To suggest the dynamics of such a relationship can be evidenced by only the most recent 12 months of examples captures neither the extent nor the potential evolution of the abuse. Where a victim is cut off from their family in year one of a 5 year relationship, this cannot be evidenced from examples in the final 12 months.
- Child involvement: It is widely accepted that growing up in a household where there is domestic abuse is likely to cause harm to a child, even where the child themselves is not the direct subject of the abuse. Further, even where a parent is not considered a risk to the child, the impact on one parent (the victim) of seeing the other (the perpetrator) to facilitate contact, will be a relevant factor when considering arrangements for face-to-face time with that child. The existence of domestic abuse in a relationship is therefore a potentially relevant factor, whether a child was present for the abuse or not.
Where controlling and coercive abuse is alleged, there is often little evidence of such behaviour, other than what the victim says occurred. A typical feature of coercive control is cutting a victim off from family and friends, and limiting their access to the outside world, including monitoring their internet usage. Victims may therefore be unable to seek help until they have left the relationship. Further, abuse can be cyclical - the control and oppression is usually mixed in with professions of love and periods of kindness. This is a characteristic which can make it so difficult to leave an abusive relationship, or to prove the abuse occurred.
Future of Scott Schedules
Scott Schedules serve a potentially useful purpose - the succinct and easily digestible format can be an effective tool for Judges dealing with allegations in certain cases, most obviously physical or sexual abuse.
However in light of the types of behaviour domestic abuse encompasses, coercive control being an example, a more nuanced and case specific approach to the use of Scott Schedules is required.
Concerns over the Court's approach to domestic abuse is not limited to their use of Scott Schedules. The redefining of domestic abuse, and the criminalising of controlling and coercive behaviour, are simply two initial steps in tackling the issue and further steps are needed as historic attitudes towards domestic abuse remain entrenched in the judicial system. Focussed training of relevant professionals is required, as well as a reconsideration of how different types of abuse can be fairly presented in Court.
Two significant developments are likely to impact the Court's future approach to domestic abuse.
One is a Court of Appeal case in which four separate appeals were brought by women who had raised allegations of rape and domestic abuse. The Court has also heard from Cafcass, Families Need Fathers, Rights of Women and Women's Aid. The judgment is due shortly and is expected to result in fresh guidance being issued to Judges.
The second is the enactment of the domestic abuse bill, first published in January 2019 which is being reviewed by Parliament. This bill will include the first statutory definition of domestic abuse and is expected to raise public awareness, monitor the response of local authorities and the justice system and hold them accountable in tackling domestic abuse.
These anticipated developments will unfortunately come too late for many who have already had their experiences of domestic abuse dragged through the Courts. We do, however, look forward to seeing their impact and particularly how these decisions might filter down into the minutiae of case presentation, including in the use of Scott Schedules.