What is a fact finding hearing?
When will a fact finding hearing be needed and what does it entail?
Introduced in 2017 to give further guidance to the courts, Practice Direction 12J says: “The purpose of this Practice Direction is to set out what the Family Court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse.”
What is a fact finding hearing?
In cases concerning arrangements for children, it is very common for factual disputes between the parties to arise. The court must be very careful to assess allegations, which, if true, would impact on the welfare of the child or children concerned.
Where the court is satisfied that the allegations, if true, will impact on the welfare of the child, it will order a separate ‘fact finding’ hearing to consider the evidence about the allegations if it is thought to be necessary and proportionate. There is the potential for earlier enhanced CAFCASS involvement to determine whether it is necessary.
When might a fact finding hearing be needed?
Examples where a fact finding hearing may be necessary might be, but are not limited to, allegations made about:
- Alcohol or drug abuse;
- Physical or sexual abuse;
- Verbal or emotional abuse;
- A pattern of controlling or coercive behaviour;
- Repeated non-compliance with previous court orders.
The decision to direct a fact finding hearing is a judicial decision. However, in considering whether to direct a fact finding hearing, the court will consider the views of the parties and of CAFCASS.
Although a fact finding hearing may delay the case, and mean that additional time is spent at court (in some cases many additional days with significant legal cost to one or both parties), the principle is that early resolution of whether allegations are found to be true by the court enables the substantive hearing to proceed more quickly, and enables the court to focus on the child’s welfare with greater clarity.
When is a fact finding hearing required?
Fact finding hearings will not be ordered in every case, but can be a very useful tool to provide a template for the court in taking into account proven serious allegations which are likely to impact on the welfare of the child.
If your case does require a fact finding hearing, it will usually take place somewhere between the First Hearing Dispute Resolution Appointment (FHDRA) and prior to a final hearing in the family court. The court should decide at an early stage whether a fact finding hearing will be required and, if so, it is scheduled to take place before the application proceeds any further.
Will my case need a fact finding hearing?
A fact finding hearing may be required when one party has accused the other party of allegations that are of significance and will impact a proposed arrangement (or lack of proposed arrangement) for the children of a family. Commonly, these allegations are of a domestic abuse nature, although not every case involving domestic abuse will need a fact finding hearing.
The court must be satisfied that a fact find hearing is required. If allegations are accepted, no fact find hearing is required. The court will consider whether the nature and extent of allegations warrant a fact finding hearing. The court will also consider whether a fact finding hearing is required or whether issues can be considered in a final hearing.
How will the court determine a fact finding case?
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”.
How would I prepare for a fact finding hearing?
A lot of work goes into preparing for a fact finding hearing. The court will order witness statements from both parties and might also order a Scott Schedule. A Scott Schedule is a schedule or table which is used in court proceedings in the family court to set out clearly the allegations which are in dispute.
The court also may order witness statements from other people, videos, recordings, police reports, medical records, or evidence from other professionals such as teachers who may be able to provide further evidence in family court. There may be other forms of evidence and you should seek advice as to what you may need in your case.
What happens at a fact finding hearing?
During this hearing the party making the allegations gives their evidence first and is also cross examined. This is repeated for the party against whom the allegations are made. The judge will consider the oral evidence of the parties, witnesses and any other evidence which is presented to it. The party making the allegation needs to prove that the allegation is true on the balance of probabilities.
Having considered the evidence, the court will give a judgment and make findings in writing.
This judgment will have an impact on how the rest of the case proceeds.
What do I need to do?
If you think that your case may involve a fact finding hearing, it is important to seek legal advice as early as you can.
If you would like further guidance on any aspects around fact finding cases, please contact our expert child law solicitors.