What is a fact finding hearing in the family court?

When parents separate, it’s common for disputes to emerge over child arrangements or even whether one parent should have any access at all to the children. It is usual for the parent denying access to the children to allege there has been domestic abuse in the relationship, either between the parents or by the other parent towards the children.

Where parents cannot resolve the issues between themselves, this leads to a child arrangements application before the Family Courts in England and Wales, where a fact finding hearing may be necessary. However, what is a fact finding hearing and should you be legally represented at one? We attempt to answer your frequently asked questions below.

What is a Fact Finding Hearing?

A fact finding hearing is a type of hearing in Children Act proceedings. As the name suggests, the Family Court is required to establish facts where there are disputed allegations of domestic abuse between the parties.

When will it be necessary to conduct a fact finding hearing?

Not every case involving allegations of domestic abuse requires a fact finding hearing for the child arrangements to be resolved. The guidance under Practice Direction 12J (PD12J) makes it clear that the following factors are likely to be relevant:

• Is a finding necessary to provide a factual basis for any welfare report?

• Is a finding necessary to provide a basis for an accurate assessment of an identified risk?

• Is a finding necessary before the court can consider any final welfare-based order(s) in relation to child arrangements?

• Is a finding necessary before the court can consider the need for a domestic abuse intervention?

As well as allowing the parties to make representations at a directions hearing, the court will usually also ask for the view of CAFCASS. Although a party may want to have their day in court, it is not always in our experience in the best interests of all the parties and any children to have a hearing where this can be avoided. A fact finding hearing can cause greater conflict between the parties, especially when some distance has been built between them post-separation.

Just some examples where the family court may decide not to hold a hearing will be where:

• There are admissions by a party which provide a sufficient factual basis on which to proceed;

• There is other evidence available to the court that provides a sufficient factual basis on which to proceed;

• The nature and extent of the allegations, if proved, would not be relevant to the issue before the court; and

• Most often, where a separate fact-finding hearing would be neither necessary nor proportionate in all the circumstances of the case. In these cases, an issues if abuse will be dealt with at the final hearing and considered in the round.

What happens at the fact finding hearing?

At the hearing both sides will present evidence and give their version of events. The evidence at the hearing may include:

• Witness statements

• Medical or police reports

• Reports or assessments from professionals like social workers or family court advisors

The court will listen to all the parties and ask questions to clarify details. It’s essential that all relevant information is presented and within the time limits set out in any directions order, as this can affect the court’s final decision on the case if relevant evidence is excluded.

Do You Need Legal Representation?

Although parties can represent themselves and sometimes do, we would strongly recommend that you are for at least this portion of your court case. Family court cases, especially those involving serious allegations that justify a fact finding hearing, can be stressful, emotional and complex and may require chasing various agencies for supporting information.

Our family law solicitors and family law barristers can help you prepare your evidence, ensure your voice is heard, and guide you through the legal process.

They can also represent you at court on the day(s) of the hearing and cross-examine the other party to help establish your version of the events. Where there is a participation direction, either you or the other party may be prevented from questioning the other party and so it is best that you have a legal representative to do that for you.

How the Court Reaches a Decision

Unlike criminal court cases, which require proof “beyond reasonable doubt,” family courts as civil courts operate on the balance of probabilities. If it is more likely than not that an allegation happened, then the court will make a finding that it did. At a fact finding hearing the court will not make a finding that something may have happened: it either did or did not.

After reviewing all the evidence and hearing submissions (a summary of the law and evidence) the judge will make a finding. If the court finds any of the allegations are true, it can affect the decision about who the children are to live with and the contact the children have with the perpetrator of the abuse.

What Happens After a Fact-Finding Hearing?

Once the facts are established, the court moves on to making decisions about the family’s future. It will normally disclose the findings to a family court adviser to prepare a welfare report about how the steps needed to protect the children. This might include supervised visits or restrictions on contact with the abusive parent to indirect contact or no contact at all in the most serious of cases.

Read our child arrangements case study where a fact finding hearing was ordered to see what the outcome was in that scenario.