Preparing for a fact-finding hearingFact-finding:preparing for hearingFact-findingFact-finding:Scott ScheduleFact-finding:preparing for hearingFact-findingFact-finding:Scott ScheduleFact-finding:preparing for hearingFact-findingFact-finding:Scott ScheduleFact-finding:preparing for hearingFact-findingFact-finding:preparing for hearingFact-findingFact-finding:preparing for hearingFact-findingFact-finding:preparing for hearingFact-finding:bundle, andFact-findingFact-finding:preparing for hearingFact-finding:bundle, andFact-finding(reproduced in full in appendix B)Fact-finding:preparing for hearingFact-finding:bundle, andFact-finding
14.11Fact-finding hearings are most commonly directed by the court (either separately or as part of the final hearing) in what might be termed safeguarding cases brought by local authorities (see further chapter 23). In such cases, it is usually the case that the local authority will be seeking adverse findings against an individual or individuals to support its contention that (for instance) their contact with P should be limited, or that P should live other than in the family home.
14.12In such cases, the practice has developed of requiring the local authority applicant to draw up a so-called ‘
Scott schedule’
1So-called because the original schedule was devised by George Alexander Scott, who held the post of Official Referee (ie judge in what is now the Technology and Construction Court) in the 1920s. of allegations, in other words a table setting out:
•the specific allegation made (for instance that ‘X failed to provide adequate care to P’);
•the particulars of the allegation (for instance that ‘On 9 September 2016 X failed to change P’s incontinence pad for a period of 12 hours’); and
•a cross-reference (or cross-references) to the evidence relied upon in support of the particulars of the allegation (for instance ‘paragraph 9 of the witness statement of Ms Y, social worker, dated 20 October 2016’).
14.13It is conventional then for the subject of the allegation to be required to set out in the same table their response to the allegation and, if it is denied, cross-references to the evidence upon which they rely in support of their denial. The local authority is then usually permitted to reply to the response, again in the same format. A column can then be provided in which the court can in due course record its finding against each allegation. The end result is a table which (ideally) makes it easier for preparations to be made for the fact-finding hearing by bringing into sharp focus the allegations, whether the allegations are disputed (and, if so, whether in whole or in part) and the scope of the evidence that will be called by the parties.
14.14Experience shows that the process of preparing and responding to Scott schedules serves significantly to focus the minds of both applicants and respondents as to the issues in the case and the strength of the evidence. Experience has also shown that it is very common for applicants to produce Scott schedules that run to many pages of allegations when, in reality, the court need only determine a limited number in order to be able to have a secure foundation upon which to determine where P’s best interests lie. An important function of the final case management hearing prior to the fact-finding hearing will therefore be to ensure that only those allegations that it is truly necessary for the court to determine are set down for resolution at that latter hearing.
14.15Pilot PD 4B/PD 13B,
2Discussed in greater detail at paras 10.29 onwards. in turn, makes clear that at the start of any bundle prepared for the fact-finding hearing, there must be inserted a document or documents prepared by each party which should set out (either within the document(s) themselves or by cross-referring to another document that is, or will be, within the bundle):
•the findings or fact that the court is being asked to make; and
•cross-references to the evidence relied upon to found those findings
(in other words, a
Scott schedule).
3Pilot PD 4B/PD 13B para 4.4.14.16Where appropriate, the preliminary documents for a fact-finding should also include:
•a chronology;
•a skeleton argument; and
•a description of relevant family members and other persons who may be affected by or interested in the relief sought.
4Pilot PD 4B/PD 13B para 4.5. 14.17Where (as is often the case) the documents in the case run to several lever arch files, it is also strongly advisable for the applicant to prepare (on an agreed basis if possible) a core bundle which contains:
•any relevant directions made by the court;
•the completed Scott schedule;
•a chronology of relevant dates;
•the witness statements of the relevant witnesses; and
•any documents to which those witnesses are likely to have to be taken for purposes of giving evidence.
14.18For welfare cases under the Case Management Pilot, the expectation is that the bundle for the final hearing (and it is suggested, by analogy, for any ‘split’ fact-finding hearing) should run to no more than 350 pages into total.
5Case Management Pilot PD para 4(2)(b).14.19One final point needs to be made in this regard. As discussed at paras 12.9 onwards, the provisions relating to disclosure in the COPR are not regularly applied. However, in
Enfield LBC v SA and others,
6[2010] EWHC 196 (Admin), [2010] COPLR Con Vol 362. McFarlane J (as he then was) considered a situation that had arisen where, during the course of a fact-finding hearing held to determine allegations of abusive parenting against a learning disabled woman, it emerged that the police had already conducted an ‘achieving best evidence’ (ABE) interview with the woman, in which the woman had denied that she had been abused, and had repeatedly asked to go home or to see her parents, and that the authority had a copy of this interview. The local authority had informed the Official Solicitor afterwards that the interview had taken place, but, having signed a police disclaimer, had not disclosed the interview, on the basis that it decided not to rely upon the content of the interview. McFarlane J was highly critical of the local authority, and his reasoning is sufficiently important to merit reproduction in this chapter almost in full:
55…. [I]t would seem that in this case they have provided the disclosure that was required of them [under the directions made], yet the result, from the perspective of a judge who is embedded in the procedure and culture of child protection proceedings under the Children Act 1989, is totally unacceptable. In a fact-finding process, where the case is largely based upon what a vulnerable adult (P) has said and the aim of the court in due course is to make orders to meet P’s best interests, how can it be appropriate, fair to the interests of all parties (but particularly P) or in any way acceptable for the applicant local authority to take part in arranging a formal ABE interview of P and subsequently take possession of a DVD recording of the interview yet be under no duty to inform the other parties or the court that that is the case?
56. The position in family proceedings is that ‘it is a duty owed to the court both by the parties and by their legal representatives to give full and frank disclosure in ancillary relief applications and also in all matters in respect of children’ [Practice Direction (Family Proceedings: Case Management) [1995] 1 WLR 332, [1995] 1 All ER 586, sub nom Practice Direction: Case Management (31 January 1995) [1995] 1 FLR 456]. If these were proceedings relating to children, then there is absolutely no doubt that the local authority, under the duty to give ‘full and frank disclosure’, would have been required to inform the parties and the court of the occurrence of the interview and to disclose the DVD record (subject to the court’s power to limit or control disclosure on a case specific basis). Given that the aim of protection is common between child protection proceedings under the CA 1989, Part 4 and proceedings such as the present which aim to investigate allegations of harm to P and, if necessary, protect her, how can it be a requirement in one process for the applicant to disclose the existence of an ABE interview, yet not a requirement, absent of an express order from the court in the other process?
57. The apparent difference in the approach to disclosure as between the family courts and the Court of Protection may well arise from the fact that the rules for the latter are based upon ordinary civil litigation with the expectation that disclosure will be based on whether documents ‘adversely affect [a party’s] own case’ or ‘support another party’s case’ (COPR, r133(2)(b)) whereas the approach of the family court is that there is a duty to give the court all relevant material.
58. There can, in my view, be no justification for there being a difference of this degree on the issue of disclosure between the family court and the Court of Protection in fact-finding cases of this type where really the process and the issues are essentially identical whether the vulnerable complainant is a young child or an incapacitated adult. For the future in such cases in the Court of Protection it would seem to be justified for the court to make an order for ‘specific disclosure’ under COPR 2007, r133(3) requiring all parties to give ‘full and frank disclosure’ of all relevant material. If such a direction had been made in the present case, the local authority would have been under a duty to disclose the DVD of the ABE interview, and any other records relating to it, once they came into their possession.