Within private law children proceedings, fact finding hearing can sometimes be listed where there is a dispute of facts that are relevant to the determination of the case. Before being able to make a final decision, the Court needs to determine what the truth is.
These disputes will often involve allegations from one parent of domestic violence (or harm to a child), that are denied by the other parent. Fact finding hearings should only be listed by the Court if it is absolutely necessary for the determination of the case. They can create further acrimony and the cost can be quite substantial.
The Facts
The facts in dispute must be relevant to the case and both parties will give evidence and be cross examined. This means that parties will be asked questions by their own representative and the representative for the other party. The judge may also ask questions of both parties. In addition, where third party evidence has been relied upon by either party, it may also be necessary for other witnesses to attend and give evidence. Witnesses can include, for example anyone who witnessed an incident in dispute, experts, CAFCASS (Children and Family Court Advisory and Support Service) officers, family members etc. Given the amount of evidence the Court may have to hear, these hearings can take several days.
Judgement
After hearing all of the evidence, the Court will ultimately decide what occurred. The test applied in relation to these hearings is the balance of probabilities. The Court needs to decide whether it is more likely than not that the event occurred. The burden of proof lies with the person who is making the allegation. Judgement will be given and the decisions made will influence the outcome of the proceedings.
It is important to remember that when the Court is considering an application that has been made under Section 8 of the Children Act 1989 (for example a Child Arrangements Order, Prohibited Steps Order or a Specific Issue Order), the Court’s paramount consideration is the welfare of the child. Throughout the proceedings the Court must have regard to the welfare checklist.
The checklist includes the following:-
- The ascertainable wishes and feelings of the child concerned (in light of their age and understanding);
- The child’s physical, emotional and educational needs;
- The likely effect on the child if circumstances changed as a result of the court’s decision;
- The child’s age, sex, background and any other characteristics which will be relevant to the court’s decision;
- Any harm the child has suffered or maybe at risk of suffering;
- Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs; and
- The powers available to the court in the given proceedings
When there is a dispute regarding facts, it is often difficult for the Court to apply the above factors accurately; without making a decision on what the truth actually is. This is the point at which a fact finding hearing will be considered. It is common for CAFCASS to recommend a fact finding hearing to the Court if a dispute regarding facts arise. Parties should not underestimate the importance of a fact finding hearing; as well as the impact that the judgement can have on the outcome of the case.
If you are within Children Act proceedings and a fact finding hearing has been listed, we have an experienced team of family lawyers who are able to advise and assist you on the best possible approach to take – contact Fisher Jones Greenwood by calling 01206 700113 or email [email protected].