Fact-finding hearings in the family court take place in certain child arrangement cases. We know that all kinds of allegations can be made when crucial decisions about where a child will live and what amount of time he or she will spend with each parent are being made.
But when allegations relate to domestic abuse or some kind of behaviour that may harm the child, judges must consider whether to hold a fact-finding hearing to examine the truth of the allegations before waiting for a final hearing. Once the abuse allegations have been examined and their veracity decided upon, the court is in a position to accurately assess any welfare risk when making its final order about child arrangements for a child.
Who Decides To Hold A Fact-Finding Hearing?
Ultimately, it’s up to judges to decide whether to hold a fact-finding hearing in a particular case. They will take the views of the parents into account and consider the position of Cafcass (the body that represents children in court proceedings, including cases where there is a dispute about child arrangements). Cafcass representatives are there to support the child and to assist the court in reaching its decision. They perform an important, independent role, advising the court about what is safe for children and in their best interests.
Other factors the courts will consider when deciding whether to hold a fact-finding hearing include whether:
- There have already been admissions by a party which provide a sufficient factual basis on which to proceed without a fact-finding hearing
- There is other evidence available to the court that provides a sufficient factual basis on which to proceed to a final hearing (without a fact-finding hearing)
- Domestic abuse or harm to the child can be established without a fact-finding hearing
- The nature and extent of the allegations, if proved, would be relevant to the issue before the court; and
- It would be proportionate to hold a separate fact-finding hearing
What happens at a fact-finding hearing?
In terms of timing the fact-finding hearing will usually take place between the First Hearing Dispute Resolution Appointment and the final hearing to decide arrangements for children. In our experience a great deal of preparatory work goes in ahead of the fact-finding hearing. Detailed schedules of the allegations are required for example, as well as comprehensive statements and details of any witnesses you may wish to call to back up or refute allegations that have been made.
At the hearing itself each party will be required to identify what questions they wish to ask of the other party, and to confirm in sworn evidence their version of the disputed allegations. Often the judge will question the witnesses on behalf of the parties so that he or she can focus what are considered to be the key issues in dispute.
Once a finding of fact on the disputed allegations has been made, the child arrangements case continues to a final hearing. It’s important that the judge who dealt with the fact finding also conducts the final hearing. This principle will only be departed from in exceptional cases s.
R and P 2023 – fact-finding hearing
The 2023 High Court case of R and P is a useful illustration of a fact-finding hearing being held where there is an alleged pattern of controlling or coercive behaviour by one spouse or parent toward another. There the mother alleged that she and her children were stranded by the father in Iraq in 2018. She stated that the father left them there without the ability to travel. The father denied all of the allegations made against him.
The judge highlighted that as she was making the allegations it was up to the mother to establish that they were true. (The legal burden of proof in fact-finding hearings like this means the judge needs to be satisfied in relation to each that allegation that it is more likely than not that an event occurred.) The court had four questions of fact to decide:
- On what factual basis the children travelled to Iraq in 2018
- Whilst in Iraq, why the children remained there until 2022
- What were the circumstances that caused the mother to be separated from the children; and
- Who retains the relevant travel documents and passports.
For our purposes the extremely precise and narrow way these questions are framed illustrates the nature of fact-finding hearings, They aren’t wide-ranging investigations. Rather they deal with very specific allegations and are used primarily to progress a child arrangements case as efficiently as possible.
At Brookman we advise parents on all issues around children that arise in the context of divorce and separation. Fact-finding hearings are a useful tool in cases where there are allegations of domestic abuse that could be affecting a child. While they can prolong proceedings and add to overall legal costs, in the long run if the hearing results in a finding that abuse allegations are true it will help the court make a more robust decision about child arrangements.