R H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448


R H-N and Others is a combined appeal case which came before the Court of Appeal. The appeal largely focuses on the interrelation between proceedings concerning the arrangements for children and allegations/findings of domestic abuse. The court’s ruling has produced new guidance for the family law courts in England and Wales to follow and has demonstrated a heightened focus on the consequential effect of controlling and coercive behaviour on families.

The central issues before the court were as follows:

    1. The application of PD12J;
    2. The challenges presented by the use of Scott Schedules;
    3. How allegations of domestic abuse should be approached by the family courts; and
    4. The relevance of criminal concepts.

Issue 1: The application of PD12J

The purpose of PD12J is to protect children and adults from the consequences of harmful behaviour. The application of PD12J on the family court is mandatory. However, there are countless experiences amongst the legal profession of PD12J being utilised as a straitjacket or ignored/minimised altogether. The court in R H-N and Others have emphasised the importance of the application of PD12J in cases where allegations of domestic abuse are raised, stating:

Issue 2: Use of Scott Schedules

Scott Schedules allow the parties to set out allegations of incidents they say have occurred. Thereafter, a fact-finding process is used to determine, on the balance of probabilities, whether the allegations made by the parties are true or false. These findings then proceed to form the factual matrix upon which a court can make orders in respect of children who are the subject of the proceedings.

It is argued in R H-N and Others that Scott Schedules are “a potential barrier to fairness and good process, rather than an aid” (paragraph 43) and further, they “reduce a long and complicated history of abuse into neat and discrete descriptions” (paragraph 47) which can ultimately have the effect of minimising the abuse suffered and leading to an order being imposed which is not in the best interests of the children involved. Instead, the court suggests that allegations should be approached in a more holistic way to embrace a consideration of wider context of abuse and its effect on the parties and children concerned. The court suggest that this may be achieved by reliance on narrative statements instead of using Scott Schedules.

Issue 3: Court’s approach to allegations of abuse

The court ruled that the primary question for family courts dealing with similar disputes is whether the evidence establishes a pattern of coercive or controlling behaviour. This evidence must be of probative relevance to the pattern of behaviour to be considered or must be sufficiently serious.

Issue 4: Relevance of criminal concepts

The court held that criminal concepts are not to be introduced into family disputes. The court states at paragraph 71 that “the family court should be concerned to determine how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not, come into the definition of rape or murder…”. Further, paragraph 73 contends that “a family judge has not proved an offence to the criminal standard and using familiar terms should not give the impression that a parent had been convicted by a criminal court.”


The Court of Appeal’s new guidance highlights the effect coercive and controlling behaviour have in family law disputes and the family court’s need to deal with cases effectively and produce outcomes which are in the best interests of children. The impact of this decision on family courts is to be seen, however it is deemed to be a step in the right direction.

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