Fact-Finding Hearings and Domestic Abuse in Children Proceedings
6 July 2022 by Lisa O'Boyle
In Children Proceedings when one party makes allegations that the other party has been abusive towards them, or a child, which are disputed, the Court must determine as soon as possible whether a Fact-Finding Hearing is necessary.
What is a Fact-Findings Hearing?
Before determining what orders to make in the child(ren)’s welfare, the Court will need to:
- Assess any risk to a child/parent,
- Apply the Welfare Checklist which includes consideration of any harm which the child(ren) has/have suffered or is/are at risk of suffering, and
- Consider the impact domestic abuse will have on the orders the Court will make in relation to the child.
In considering the above factors, the Court cannot simply rely on allegations of domestic abuse unless these allegations are proven or admitted.
The purpose of a Fact-Finding Hearing is for the Court to consider whether one or more of the allegations of domestic abuse are more likely than not to be true. The party making the allegation has the burden of proving to the Court that the allegation(s) is/are true on a balance of probabilities i.e. more likely than not.
The Court needs full details in respect of the allegations including:
- What the allegation is? How did it happen?
- Where did the behaviour take place?
- When/how many times did it take place?
- The effect on the child and the parent?
- Whether there are any witnesses?
- What other evidence might be available?
- Is the behaviour because of the breakdown of the relationship, or a cause of the breakdown?
Usually before the Fact-Finding Hearing, both parties will draft witness statements and, where necessary, will be able to adduce evidence of any relevant witnesses.
Further evidence may be necessary, for examples police disclosure, and/or disclosure of medical records.
At the Fact-Finding Hearing the Court will hear further oral evidence from both parties and any witnesses in relation to these allegations.
Upon considering all of the evidence, the Court will decide whether one or more allegation(s) are more likely than not to be true. If an allegation (s) are proved to this standard then the Court will make a finding that this abuse did happen.
These findings then provide a factual basis, which any experts can rely on in their analysis/reports/recommendations, and which the Court can rely on in deciding what final orders to make in the child(ren)’s welfare.
When is a Fact-Finding Hearing Necessary?
It is not always straightforward to know when a Fact-Finding Hearing is necessary. The president of the Family Division on 5 May 2022 has approved and published Lady Justice Macur’s guidance for judges and magistrates concerning Fact-Finding Hearings and domestic abuse in Private Law Children proceedings in the Family Court.
The nature allegations of domestic abuse must be relevant to the making of an order in relation to the child. For example, if the allegation is a one-off incident that took place a very long time ago, or is an allegation of financial abuse, this may not be relevant to a risk of harm to the child. Are the allegations relevant if the parent making the allegation has been happy for the child to continue to have regular unsupervised overnight contact with the other parent?
The Fact-Finding Hearing must be necessary for the Court to assess the risk to the child and impact of any abuse on the child. For example, a Fact-Finding Hearing is not likely to be ordered if there is already a factual basis such as admissions, or a criminal conviction.
However, it should be noted that the police taking no further action or the criminal Courts not convicting someone is not evidence that the allegations are not true. The CPS and Criminal Court may have found that there was not enough evidence on a particular allegation on the higher criminal burden of proof of “beyond reasonable doubt”, but the Family Court may make findings on the same allegation on the lower civil burden of proof of a “balance of probabilities”.
Is a Fact-Finding Hearing proportionate? If the allegations were true, would it have an impact on the orders the Court would make in relation to the child? If not, then a Fact-Finding hearing may not be proportionate.
Is there a possible way forward that will permit safe continuation of relationships with the child and avoid conflict with the other adults? For example, handovers at school. Could the allegations taken at their highest be mitigated by certain measures? For example, supervision of contact, or other measures or conditions for contact. If so, then a Fact-Finding hearing may not be necessary.
An assessment of these above criteria will depend on what the facts and issue(s) in the case is/are.
Findings have (or have not) been made against me, what does this mean?
If no findings have been made then the Court will disregard these allegations. The Court may become concerned of the risk of emotional harm to the child from the parent who made the unproven allegations, and whether that parent can allow a relationship to take place between the child and the other parent. In some cases the Court may wish to assess whether the child’s welfare needs would be best met by living with the other parent.
If findings have been made, these are recorded and sent to any officer preparing a section 7 report or other expert.
The Court will apply the welfare checklist with reference to the findings of domestic abuse that has occurred. The Court will consider any harm the child and the parent has suffered, or is at risk of suffering, as a consequence of that domestic abuse if a child arrangements order is made.
The Court will only make an order for contact if the Court is satisfied that the physical and emotional safety of the child and the parent can, so far as possible, be secured before during and after contact.
If the Court considers any form of contact or involvement of the parent against whom findings have been made, in the child’s life, it must consider:
-whether it would be assisted by any social work, psychiatric, psychological or other assessment;
-whether any party should seek advice, treatment or other intervention as a precondition to any child arrangements order being made; and
-may make an activity direction set out in section 11A and 11B Children Act 1989.
Where findings are made by the Court and the Court still considers that direct contact is safe and beneficial to the child, there will be consideration of the following:
- Whether or not contact should be supervised, where and by whom?
- Whether to impose conditions, the nature of those conditions?
- Whether such contact should be for a specified period?
- Whether necessary to review the operation of the order?
Where the Court does not consider direct contact appropriate, it must consider whether it is safe and beneficial for the child to make an order for indirect contact.
Our Family Solicitors at FJG have experience in advising and representing clients in Children Act proceedings, including advising on and preparing for Fact-Finding Hearings. Please contact us by calling 01206 835320, emailing [email protected] or by using the enquiry form.
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