A fact-finding hearing can help the court resolve disputed issues that matter to the child’s future and any orders the court may make. Understanding why a hearing may be ordered, and what happens afterwards, can make it easier to prepare.
What is a fact-finding hearing?
A fact-finding hearing considers evidence about disputed events or behaviour where the judge decides whether they are likely to have happened based on the balance of probabilities. This is a wider test than that for criminal proceedings where decisions must be based beyond reasonable doubt – a much higher bar.
A fact finding hearing most commonly occurs during proceedings about child arrangements where one parent might say that the other has been physically abusive towards them. If the allegation is denied and the court considers it necessary to resolve the issue, it may arrange a hearing to examine the evidence.
A fact-finding hearing rarely decides the final child arrangements itself. It is often one stage in the proceedings, followed by further assessment and, if needed, a later hearing.
Who decides whether a hearing is necessary?
Although a parent can ask the court for a fact finding hearing, it is ultimately for the judge or magistrates to determine how the case should proceed. The court will consider the views of the parents and, where involved, Cafcass. It will also look at whether there are admissions or other reliable evidence that provide a sufficient basis for assessing the child’s welfare.
The court should ask itself whether a hearing is necessary and proportionate, and may decide to examine the most significant issues without investigating every disagreement between the parents. Where domestic abuse is alleged, the court’s reasons for deciding that a fact-finding hearing is unnecessary should be recorded in its order.
How are allegations and responses set out?
Before the hearing, the court will make directions explaining what each person must do and when. These directions are intended to identify the issues and ensure that the necessary evidence is available.
The parent making allegations may be asked to prepare a written statement, and the other parent will be given an opportunity to provide their own statement in response.
The court may also direct the parties to complete a schedule or table setting out the allegations and responses. This can help everyone understand which matters are admitted and which remain disputed.
An allegation should be clear enough for the other person to understand and respond to it, and where possible, it should explain what happened and when. However, a person describing a long period of controlling behaviour may not be able to remember the exact date of every incident. Their account may instead explain the wider pattern, using examples to show how the behaviour affected them.
What evidence can the court consider?
The court can consider different kinds of evidence, depending on the allegations and the issues it needs to decide, including:
- Text messages help the court understand what was said between the parents at a particular time.
- Medical records where a person sought treatment following an alleged incident.
- Police information where officers were called to the family home or a complaint was made.
- Other witnesses, such as someone who saw an incident or observed its immediate aftermath.
Other records may help to place events in context; for example, if a parent says that the other controlled their access to money, relevant financial information might help the court understand how the household’s finances operated.
Can parents and other witnesses be questioned?
Questioning gives each side an opportunity to challenge evidence and put forward a different account of events. Where a parent has a solicitor or barrister representing them at the hearing, their representative may ask questions on their behalf.
However, there are important protections where domestic abuse is an issue. In certain circumstances, the law prohibits one party from personally cross-examining the other, or a witness, and the court may also make a direction prohibiting it in other circumstances.
If a prohibition applies and the party has no legal representative to conduct the questioning, the court must consider how the evidence can be tested. This may include considering whether a qualified legal representative should be appointed for that purpose.
Parents and witnesses can ask the court to consider arrangements that help them participate and give their best evidence. Depending on the circumstances, these might include a screen in the courtroom or giving evidence by video link. Separate waiting arrangements may also be considered. It is important that any concerns are raised as early as possible so that the court has time to address them and apply any measures.
What findings can the judge make?
The judge may find that an allegation is proved, that it is not proved, or that some parts are proved while others are not. For example, a parent might allege several incidents of threatening behaviour; the judge may find that one incident occurred but conclude that there is insufficient evidence to make findings about the others.
In a case involving an alleged pattern of abuse, the court may make findings about the nature and extent of the behaviour it considers established. The judgment should explain the judge’s reasoning, and relevant findings will be recorded so they can be taken into account as the case continues.
What happens if an allegation is not proved?
An allegation that is not proved has not been established to the standard required by the family court. It does not necessarily mean that the judge has found that the person who made it deliberately lied. There may be conflicting evidence, uncertainty about what happened or insufficient information for the judge to make a finding.
Once an allegation has been determined as not proved, the court should not treat it as an established fact when making its later decisions. The judge will continue to consider any findings that were made, together with other relevant evidence about the child’s welfare.
How can findings affect child arrangements?
Findings can have an important influence on decisions about where a child lives and how they spend time with each parent. Their effect will depend on the nature of the behaviour, the risk it presents and the child’s circumstances.
A finding of domestic abuse does not automatically mean that a parent will never see their child, but the court must consider whether contact would be safe and beneficial, and what arrangements could manage any risk.
The court must also consider the safety of the parent caring for the child; a handover arrangement that exposes that parent to further abuse can affect both their wellbeing and the child’s. Findings may therefore influence where handovers take place or whether the parents need to have direct contact with one another.
If you would like advice about a fact-finding hearing in children proceedings, please contact our family law team today. We can help you understand the process, prepare your case and consider what the outcome may mean for your child’s future arrangements.
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