July 25, 2017

Fact-Finding Hearings in Cases Involving Children

What are fact-finding hearings?

In proceedings involving children, the Family court will see if agreement can be reached on all relevant issues at the early hearing in any case. If this is not possible, the court will make its decision at a final hearing, after hearing all relevant evidence.

There are circumstances in which an early decision on an important factual issue is required, so that the case can proceed to a final hearing. In these circumstances a fact-finding hearing might be ordered.

Fact-finding hearings are used to decide important issues that are in dispute between the parties or to find out what happened on an occasion. They are generally used to decide on a factual issue, to inform an assessment or welfare report.

Fact-finding hearings are used in Care proceedings (where the Local Authority has concerns about children) and in Private proceedings, where each parent or carer makes allegations about the other.

The court will only use a fact-finding hearing in limited circumstances and where the issue in question is one that cannot easily be dealt with at a final hearing.

The main emphasis of this article is on fact-finding hearings in Private proceedings, although their place in Care proceedings will be considered.

When are fact-finding hearings required?

Care Proceedings

Care proceedings are usually brought to court by a Local Authority in circumstances where it has a concern about a parent’s ability to look after a child. This may be because of the care given to the child, or because of the parent’s current lifestyle and relationships. There are occasions when the child has sustained an injury and the circumstances of how the injury was caused are unclear and are of concern.

In every case the court will decide whether the issue can be left to a final hearing. If this is not possible or consideration of the issue at the end of the proceedings will cause delay, the court may decide to hold a fact-finding.

An example may assist:

A baby is taken to hospital by her parents on a Tuesday morning after a Bank holiday. The child is listless and has been in some distress.
During a routine examination, the Doctor finds evidence of bruising to the child’s leg and upon further examination and X-Ray, a recent fracture to the child’s leg is discovered.
From the Thursday night before the weekend, both parents and other family members and friends have been in the household.
There have been occasions when the child has been alone for periods of time with one or more of the individuals present.

In these circumstances, the court might decide that a fact-finding hearing is required to determine the following questions:

Is the fracture a Non-Accidental Injury?
Was the fracture or the bruising or both caused by accident, recklessly or deliberately?
If a Non-Accidental Injury, who might have caused the injury? If more than one person, the court and lawyers will often refer to a ‘pool of possible perpetrators’.
Can anyone be excluded from the pool?
If a parent or carer is found to have caused the injury by a reckless or deliberate action, what steps should the court take?
If the court makes a Non-Accidental Injury finding that one or more persons – including a parent – may have caused the injury, what will happen?

Private Law Proceedings

When a child’s parents separate, it is not always possible for them to reach an agreement as to where a child should live and how often and in what circumstances she or he should spend time with the other parent.

Parents will usually be referred to or encouraged to undertake some form of mediation to avoid care proceedings. If mediation is not successful, one parent or carer may issue proceedings in the Family Court.

In many cases an agreement will be reached before a final hearing. If no agreement can be reached however, the court will be asked to decide the issues in dispute at a final hearing.

There may be circumstances in which one or both parents make serious allegations against the other. These allegations may be the main reason why the parties separated or they could be issues that were known and which only became relevant after the parents separated.

One parent may allege that the other parent has a serious drink or drugs problem, that if unresolved, will have a serious impact upon their ability to care for a child, even for relatively short periods.

A common issue is an allegation that throughout the parents’ relationship, or after separation, one party used or threatened violence against the other or that they carried out a campaign of abusive behaviour and intimidation.

In many cases, the court will prefer to deal with these issues at the final hearing, but circumstances may require a court to hold an earlier fact finding hearing.

Cafcass (Children and Family Court Advisory and Support Service) is an organisation that prepares reports for the court in proceedings involving children. Named after a section of the Children Act 1989, these reports are often referred to as Section 7 reports.

When a Cafcass worker is asked to prepare a report, she or he may recommend to the court that consideration should be given to deciding the truth of allegations made by one or both parents against the other. A common example of this is where one parent alleges that they are a victim of domestic abuse perpetrated by the other parent.

The court is required to give special consideration to cases in which there are allegations of domestic violence or abuse. Abusive behaviour can include controlling or intimidating conduct that falls short of actual violence. In such cases the court must follow guidance issued by senior Judges and the higher courts.

The guidance states that:

The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic violence or abuse:

(a) In order to provide a factual basis for any welfare report

(b) In order to provide a basis for an accurate assessment of risk; or

(d) Before it considers the need for a domestic violence-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).

In determining whether it is necessary to conduct a fact-finding hearing, the court should consider several issues, including the following:

The views of the parties and of Cafcass

The court will not list a fact-finding hearing simply because a parent or Cafcass ask for one to be held. The court must be satisfied that a fact-finding hearing is required.

Whether there are admissions by a party which provide a sufficient factual basis on which to proceed;

A parent may accept substantial parts of the allegations made. In these circumstances, the court may come to the view that a fact-finding hearing is not required.

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

A parent may have been convicted of an offence involving the relevant facts, or, issues that are the subject of concern may have been considered by another court and a decision made, for example, in non-molestation (Injunction) proceedings. In these circumstances the information is already available to the court.

The nature of the evidence required to resolve disputed allegations;

Whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court;
The court might feel that even if proved in full, the allegations are not so serious as to affect the arrangements for the child to spend time with one parent
Whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.

What happens if the court decides that a fact-finding hearing is required?

Before the hearing

The court will expect the parent making the allegations to provide a list of the matters that are of concern. This will give the other parent an opportunity to respond to each allegation in turn. Courts often asks the parents to limit the matters complained of to six of the most significant incidents.

The parent making the allegation should try and give the date and location of the incident, a summary of what happened, who was present (any witness or the child) and what happened afterwards.

The parent will also be asked to prepare a statement giving a narrative of what happened on each occasion. At the hearing, this statement will count as the parent’s evidence.

If an allegation was reported to and investigated by the police, the court might benefit from having information from the police. This could include any statements taken at the time, photographs of any injuries and any written recordings made by police officers.

If a person sought medical assistance, a copy of the relevant records could also support the allegation.

The parent against whom the allegation is made will have an opportunity to prepare his or her statement in response and to produce evidence in support of their position. These statements, together with other documents, such as court orders, will be included in a court bundle.

Courts tend to give less weight to statements from friends or relatives that are confined to general statements of how good one parent is and how bad the other is.

Going to court can be daunting for even the most resolute individual. On occasions, the mere thought of being in the same building – let alone the same courtroom - as the other party can be overwhelming. Consideration should be given to "special measures" such as:

Giving evidence from behind a screen, so that you cannot be seen by the other parent.
Having an approved supporter, such as a counsellor in court. Family proceedings are private. This means that friends and relatives are not usually allowed into the court room unless and until they are to give evidence and when their evidence has been given, they should leave the courtroom.
Giving evidence by video link, from another part of the court building or another building entirely.

These matters should be considered well in advance of the hearing and if it is thought that one or more of the measures is appropriate, an application can be made to the court in advance of the hearing.

During the fact-finding hearing

Usually, the parent who makes the allegation will give evidence first. As noted, the court will rely upon the parent’s written statement of evidence. While your lawyer will usually be allowed to ask some extra questions about the allegations and the impact that they have had upon you and your child, the court will not want to hear a repetition of each allegation.

After your lawyer has finished asking you questions, the lawyer representing the other parent will put questions to you. This is known as cross examination.

When the other lawyer has finished, your representative may wish to put questions to you arising from the cross-examination. After this, the court may have one or two questions to put to you.

This process is then repeated for any witnesses who have filed statements of evidence on your behalf.

When your case is concluded, the process will then be repeated for the other parent.

If a Cafcass officer has provided a Section 7 report, he or she may be asked to attend court and give evidence. This evidence will be taken either before or after the evidence from the parents.

After all the evidence has been heard, the lawyers will make submissions to the court on points of law or issues of significance.

The court will then withdraw to consider its decision. The Judgement is usually given on the same day that the evidence is concluded. Sometimes, if the case has taken most of the day, the court will ask the parents to return on another occasion for the decision to be amended.

The Judgement and after the fact-finding hearing

The court will usually read out its judgement, referring to each of the allegations made and will then consider the next step.

If none of the allegations are proved, the court may proceed to making a final order.

If some or all the allegations are proved, the court should give thought to what happens next.

Where a finding of domestic violence or abuse has been made:

‘The court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that violence or abuse, and any harm which the child and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made. The court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent.’ Practice Direction 12J

What happens next may depend upon the precise findings made and whether the court is of the view that a further assessment from Cafcass (or another expert) is required.

The court may also wish to allow the parents to consider their respective positions and to consider whether one or both parents should attend courses or undertake work in relation to domestic abuse and violence prevention measures.

In many cases, the court may adjourn to a further hearing for a final decision to be made.

What should you do?

The best advice we can give you is to consult your solicitor at the earliest opportunity and tell them about your concerns.

Family Law Group has offices throughout the region including a twenty-four hour Emergency Helpline. Telephone us on 0115 945 4555 to make an appointment.