Often in contested court proceedings relating to children, one or both parents make allegations against the other, such as allegations of abusive behaviour, which are denied by the other parent. Allegations of abusive behaviour can include physical, sexual, psychological, emotional or financial abuse, as well as coercive and controlling behaviour.
In these situations where there are factual disputes, the court, under Practice Direction 12J, has to consider whether a separate fact-finding hearing is necessary to establish the facts and determine whether or not such allegations are true.
The purpose of a fact-finding hearing is to ensure that important decisions about children, including with which parent they should live or spend time with, are made with reference to clear findings of fact, rather than disputed and unresolved allegations.
When is a Fact-Finding Hearing needed?
In deciding whether a fact-finding hearing is necessary, the court will consider the allegations and determine whether they are relevant, significant and likely to have a material impact on the court’s decision about the welfare of the children and what is in their best interests.
If allegations are not deemed to be serious or are unlikely to have a material impact on the court’s final decision, or if allegations are accepted, no fact-finding hearing will be required.
Although fact-finding hearings can cause delay, in some cases they are considered necessary to resolve disputed facts, so that the court can then focus on what is best for the children.
When does a Fact-Finding Hearing take place?
Fact-finding hearings usually take place after the first court hearing known as the First Hearing Dispute Resolution Appointment (FHDRA), but before the Final Hearing.
Depending on the seriousness of the allegations made and the complexity of the case, the court must consider whether it is appropriate for the children to be made a party to the legal proceedings and be separately represented through a Children’s Guardian.
View our related blog 'What is a Guardian and why are they involved in proceedings concerning children?'
The court will also consider which level of Judge should hear the case.
Preparing for a Fact-Finding Hearing
If a fact-finding hearing is deemed necessary, a party making allegations will prepare a Schedule of Allegations (sometimes referred to as a Scott Schedule) supported by a narrative Statement giving specific dates and details of the alleged behaviour, attaching any evidence they have to support what they are alleging.
The other party will then have an opportunity to respond to the Schedule of Allegations and prepare a Statement in response to the allegations made.
Sometimes both parties will make allegations, so there will be cross allegations the court needs to determine.
The court may order the production of police disclosure, third party Witness Statements or other evidence such as medical evidence, information the Local Authority hold about the family, evidence from domestic abuse support services or information from the children’s schools.
What happens at the Hearing?
At the fact-finding hearing the parties will give evidence to the court and are cross examined.
In children cases the Judge will make decisions on the civil standard of proof – the balance of probabilities, meaning that the court will determine if it is more likely than not that each allegation is true.
The outcome of a Fact-Finding Hearing
At the end of the fact-finding hearing, the Judge will give a Judgment making a decision on each of the allegations made. The court will determine whether the allegation is proved or not proved, or the court could go further to say that the allegation was made up. A Schedule of the court’s findings will be prepared.
What happens after the court's findings?
The fact-finding Judgment and the Schedule of Findings are then used moving forward in the case as a factual foundation to inform professionals such as Cafcass and ultimately help the court to make decisions about the children’s welfare and the future child arrangements.
If allegations are found to have been proved, the court may ask Cafcass or other experts to undertake further assessments including risk assessments. Psychiatrists or Psychologists may be instructed. The court may suggest that parents engage in domestic abuse programmes or that they and/or the children receive therapeutic help.
Why legal advice is important
A fact-finding hearing can often last several days and involve complex issues. It is essential that fact-finding hearings are properly prepared for. Attending a fact-finding hearing can be a very daunting experience, especially if you do not have legal advice.
If you do not have legal representation, a Qualified Legal Representative (QLR) will need to be appointed to ask questions of the other party.
Any findings made by the court can have wide-ranging consequences and a significant impact on the children arrangements ordered by the court.
How we can help
Our specialist family lawyers can can advise and support you through the whole process. Get in touch to discuss your situation.
