What is a Fact Finding Hearing?
A Fact Finding Hearing is a type of court hearing that considers the evidence surrounding allegations. This is a special hearing which is arranged to decide whether an alleged incident took place or not.
Fact finding hearings are common in children law cases but can also happen during other family law proceedings such as for domestic violence injunctions, divorces.
We shall deal specifically with Private Law Children Proceedings in this guide.
Private Law Children Proceedings
When a child’s parents separate, it is not always possible for them to reach an agreement as to where a child should live and how often and in what circumstances she or he should spend time with the other parent.
Parents will usually be referred to or encouraged to undertake some form of mediation to avoid care proceedings. If mediation is not successful, one parent or carer may issue proceedings in the Family Court.
In many cases an agreement will be reached before a final hearing. If no agreement can be reached however, the court will be asked to decide the issues in dispute at a final hearing.
There may be circumstances in which one or both parents make serious allegations against the other. These allegations may be the main reason why the parties separated or they could be issues that were known and which only became relevant after the parents separated.
One parent may allege that the other parent has a serious drink or drugs problem, that if unresolved, will have a serious impact upon their ability to care for a child, even for relatively short periods.
A common issue is an allegation that throughout the parents’ relationship, or after separation, one party used or threatened violence against the other or that they carried out a campaign of abusive behaviour and intimidation.
In many cases, the court will prefer to deal with these issues at the final hearing, but circumstances may require a court to hold an earlier fact finding hearing.
Cafcass (Children and Family Court Advisory and Support Service) is an organisation that prepares reports for the court in proceedings involving children. Named after a section of the Children Act 1989, these reports are often referred to as Section 7 reports.
When a Cafcass worker is asked to prepare a report, she or he may recommend to the court that consideration should be given to deciding the truth of allegations made by one or both parents against the other. A common example of this is where one parent alleges that they are a victim of domestic abuse perpetrated by the other parent.
The court is required to give special consideration to cases in which there are allegations of domestic violence or abuse. Abusive behaviour can include controlling or intimidating conduct that falls short of actual violence. In such cases the court must follow guidance issued by senior Judges and the higher courts.
The guidance states that:
The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic violence or abuse:
(a) In order to provide a factual basis for any welfare report
(b) In order to provide a basis for an accurate assessment of risk; or
(c) Before it can consider any final welfare-based order(s) in relation to child arrangements; or
(d) Before it considers the need for a domestic violence-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).
In determining whether it is necessary to conduct a fact-finding hearing, the court should consider several issues, including the following:
The views of the parties and of Cafcass
- The court will not list a fact-finding hearing simply because a parent or Cafcass ask for one to be held. The court must be satisfied that a fact-finding hearing is required.
Whether there are admissions by a party which provide a sufficient factual basis on which to proceed;
- A parent may accept substantial parts of the allegations made. In these circumstances, the court may come to the view that a fact-finding hearing is not required.
Whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed;
- A parent may have been convicted of an offence involving the relevant facts, or, issues that are the subject of concern may have been considered by another court and a decision made, for example, in non-molestation (Injunction) proceedings. In these circumstances the information is already available to the court.
The nature of the evidence required to resolve disputed allegations;
- Whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court;
- The court might feel that even if proved in full, the allegations are not so serious as to affect the arrangements for the child to spend time with one parent.
- Whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.
When is a Fact Finding Hearing required?
Often these types of hearings are required when one parent has accused the other of domestic abuse, for example. The court would usually decide at an early stage, in an application for a child arrangements order, whether a Fact-Finding Hearing will be required and, if so, it would be scheduled to take place before the application proceeds any further.
The court must determine, as a fact, whether the alleged incident/incidences of abuse took place because only then can the court determine if or how this should impact upon the arrangements for the child or children involved. A Fact-Finding Hearing is not always required where domestic abuse is alleged, but it will be if the allegation is denied and if it is the case that if proven it would materially impact upon the risk of harm to the child and be relevant to the court’s ultimate determination of the child arrangements.
The evidence in a family court case is judged “on the balance of probabilities”. This means that the court will determine if it is more likely than not that the alleged incident took place. This is a lower threshold than in a criminal case where the burden of proof is “beyond all reasonable doubt”. Given the issues involved and the deeply personal nature of these type of disputes, preparing clear evidence is crucial whether you are the person alleging the abuse of the person defending those allegations.
Will a fact finding hearing lead to a final hearing in a family court?
A fact finding hearing usually takes place in child proceedings where the parties are unable to reach an agreement and are making allegations against each other which the courts may feel needs to be addressed ahead of a final hearing in the family court. Therefore prior to a fact finding hearing being ordered a dispute resolution appointment in family court would have taken place.
It is important to note that the court will only list for a fact finding hearing if it is satisfied that such hearing is required to determine the issues and not just because of the allegations between the parties or because it is recommended by Cafcass. If the court does not feel that that a fact finding hearing is necessary then the matter will usually proceed to a final hearing in the family court and following the dispute resolution appointment in family court taking place.
What happens before a fact finding hearing takes place?
Prior to a fact finding hearing the parent making an allegation must provide a list of the allegations it is making. They would then also have to provide a statement explain clearly what the allegation is, when this took place, what exactly happened, whether there is any supporting information and details if anyone else was present. The court would usually provide such directions at the dispute resolution appointment in family court where the matter has not been able to conclude.
It is strongly recommended to seek early legal advice and assistance at this stage to be given the best possible change of winning a fact find hearing.
This statement from the parent making the allegations is used as evidence in family court at the fact finding hearing. It is important that any allegations are carefully considered before being made as the court can request other experts to provide information and or attend the fact finding hearing to give evidence in family court.
The parent who has been subjected to the allegations will also be able to prepare a statement whilst responding to the allegations again which forms as evidence in family court. The statements from both parents together with any other information will be used as a court bundle which will be considered at the fact finding hearing.
Do I have to attend the hearing?
Many parents often query Do I have to attend a fact find hearing? The simple answer is yes. The purpose of the fact finding hearing is to consider the allegations. Each person concerned will be required to give evidence and be cross examined. In order for the judge to reach an outcome on the allegations your attendance is compulsory. Barristers from both parties will cross examine each person.
If you are the person making the allegations you will need to ensure you attend. It is for the party making the allegations to prove they are true. The judge will consider the evidence provided before and at the hearing. A decision will then be made whether the allegations are true. Failing to attend the fact finding hearing may mean you have lost the opportunity to prove your case. This could have a negative effect on the overall matter. If a party has special circumstances the courts can cater for this. If one party is afraid of the other, then the court may make alternative provisions. Parties can give evidence via video or behind a screen. This stresses the importance of giving evidence at a fact find hearing.
What is the best advice on the hearing?
The best advice on a fact find hearing is to ensure you are prepared. If you are the party making the allegations you need to prove your case. It is important that any allegations are backed up by evidence. Parties should not make false allegations to portray a negative image of the other party involved.
It is important your statement clearly deals with your allegations. Ensure you provide in detail how such allegations can affect the overall case.
If you are facing allegations you need to ensure you seek legal advice on defending these. It is important you provide strong responses and evidence to the allegations raised.
Read through your statement(s) to familiarise yourself with its content as you will be questioned/cross examined on the statement(s).
It is important to remember that each case is different. Therefore, tailored advice needs to be provided based on individual circumstances.
What happens at a fact finding hearing?
Many parents who are going through childcare proceedings are often unaware of what happens at a fact finding hearing and the importance of getting your points and evidence across at a dispute resolution appointment in family court. Our experts can guide you through this difficult time to ensure you are kept updated with every process of your proceedings.
You may wonder what happens at a fact finding hearing. During this hearing the parent making the allegations gives their evidence first and is also cross examined. This is again repeated for the parent against whom the allegations are made. The judge will consider all evidence in family court which is presented together with the statements filed before the fact finding hearing. It is up to the party making the allegation to prove the allegation is true and must be proved on the balance of probabilities.
Further information which has been obtained for the fact finding hearing would also be considered and this could include any relevant police reports, medical records, evidence from other professionals such as teachers who may be able to provide further evidence in family court.
After all the evidence has been heard, the lawyers will make submissions to the court on points of law or issues of significance.
The court will then withdraw to consider its decision. The Judgement is usually given on the same day that the evidence is concluded. Sometimes, if the case has taken most of the day, the court will ask the parents to return on another occasion for the decision to be read out.
What happens after a fact finding hearing?
Following the evidence in court you will probably want to know what happens after a fact finding hearing. The court will make their decision on each allegation and confirm whether the allegation is proven as a fact and if so, it can be used in the final hearing in family court. If an allegation is not proven, then it will be dismissed and not considered further.
The court will usually read out its judgement, referring to each of the allegations made and will then consider the next step.
If none of the allegations are proved, the court may proceed to making a final order.
If some or all the allegations are proved, the court should give thought to what happens next.
Where a finding of domestic violence or abuse has been made:-
‘The court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that violence or abuse, and any harm which the child and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made. The court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent.’ Practice Direction 12J
What happens next may depend upon the precise findings made and whether the court is of the view that a further assessment from Cafcass (or another expert) is required.
The court may also wish to allow the parents to consider their respective positions and to consider whether one or both parents should attend courses or undertake work in relation to domestic abuse and violence prevention measures.
In many cases, the court may adjourn to a further hearing for a final decision to be made.
Our specialists at CP Law Solicitors provide tailored advice to suit your needs. We understand no case is the same. With years of experience we can assist you by preparing you for your fact finding hearing.
