AA v BB [2021] EWHC 1822 (Fam): Evidence of domestic abuse and fact finding hearings

This was an appeal heard by Judd J against a case management decision made by Recorder Glancy QC to exclude evidence from a fact finding hearing where there were allegations of domestic abuse.

The background

The proceedings related to the parties’ two children, aged 12 and 3. Both parents had issued applications for child arrangements orders and specific issue orders, as well as having made allegations of abuse against each other. The court had ordered in August 2020 that the parties were to each file a Scott Schedule limited to five allegations, and a schedule in response to that of the other party. In October 2020, the court made an order for the parties to file and serve witness statements which were to be limited to evidence in respect of the five allegations on the Scott Schedules.

At the start of the fact finding hearing before Recorder Glancy QC, the father’s counsel raised a number of preliminary points relating to the evidence the mother sought to file, which included a statement from her, one from the children’s nanny and one from the maternal grandmother. The father’s counsel argued that the mother’s witness statement included allegations which went beyond the five permitted in her Scott Schedule, as did the other statements. There had also been no direction for statements from anyone other than the parties, and the father’s counsel invited the Recorder to make an order excluding the additional evidence filed by the mother.

As a result of commencing the hearing late as well as the preliminary application, the fact finding hearing could not go ahead and was adjourned for several months. The Recorder therefore limited himself to case management issues and determined the father’s application.

The Recorder, for the most part, granted the father’s application and considered that the elements of the mother’s statement which had been highlighted by the father’s counsel were ‘irrelevant, inadmissible or otherwise objectionable’. He ordered that the mother should file a new witness statement which excluded significant sections of her former statement. The Recorder allowed a short statement from the nanny, which was general in its allegation that the father came across as abusive and controlling. The grandmother’s statement was said to be objectionable in parts but it was permitted to be filed. The additional evidence that had been filed by the mother from treating professionals and counsel’s opinion relating to the father’s employment were excluded.

The appeal

The mother appealed this decision on four grounds and her counsel referred Judd J to the judgments of Re H-N, Re T, Re H and Re B-B [2021] EWCA Civ 448 and F v M [2021] EWFC 4, in relation to the limitations of Scott Schedules and an intense focus on particular allegations at the expense of looking at patterns of overall behaviour.

The father’s counsel argued that the Recorder had a wide discretion and had exercised it appropriately, and that the evidence the mother wished to adduce was not ‘subtle and persistent patterns of behaviour’ but new allegations. He pointed out that the mother had not sought to appeal the order made in October 2020 requiring the parties to limit themselves to five allegations each and recording that their statements should not stray outside of this. Further, because of difficulties in arranging the exchange of statements, the statements filed by the mother had not been seen by the father’s team until just a few days before the fact finding hearing. The father’s counsel also argued that the Recorder could not be expected to take into account the guidance given in Re H-N by the Court of Appeal when the judgment had not been reported at the time of his decision.

In considering the appeal, Judd J highlighted that an appeal court will only interfere with case management decisions in very limited circumstances. She expressed sympathy for the position that the Recorder had found himself in and the lateness of the new material that the mother had filed.

Judd J allowed the mother’s appeal, concluding that the allegations beyond those she had included in her Scott Schedule ‘were not either inadmissible or irrelevant; quite the opposite’ and related to an allegation of a pattern of behaviour. Judd J commented that these allegations demonstrated that strict adherence to single incidents in the Scott Schedule would have to be reconsidered.

Referring to Re H-N, Judd J stated that ‘there was effective unanimity amongst the parties to the appeal that the value of these [Scott Schedules] had declined to the extent that, in the view of some, they were a potential barrier to fairness and good process. One of the problems was that the reduction in the court’s focus towards a limited number of incidents risked robbing the court of the vantage point from which to view the quality of the alleged behaviour as a whole and to determine if there was a pattern.’

Final thoughts

This judgment further highlights the limitations of Scott Schedules and the need for the Family Court to consider alternative ways for parties to present their evidence, particularly where allegations of coercive and controlling behaviour are being made. While the Family Court has accepted that there needs to be a move away from Scott Schedules, it is not yet clear what should replace them. It will be useful to see what approaches are taken over the coming months.

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Victoria Brown is a Senior Associate Solicitor in the Family team, who practices in all areas of private family law, including divorce, dissolution, financial and children arrangements. If you would like to discuss these issues please contact her at vgb@anthonygold.co.uk or on 020 7940 4060