Is a fact finding hearing necessary?

Any parent who starts or responds to an application for a child arrangement order or a specific issue order or prohibited steps order is understandably confused by the court terminology and process. In this blog, children law solicitor, Behzad Sharmin, looks at what a fact-finding hearing is and at the circumstances where a family law judge may order a fact-finding hearing.

LONDON BASED CHILDREN AND FAMILY LAW SOLICITORS  

If you are making a child custody or contact application or you are replying to an application made by your former partner the children and family law team at OTS Solicitors are here to help you. Call us on 0203 959 9123 or complete our online enquiry form so we can set up a skype, video conference or telephone appointment for you with one of our friendly and approachable children law solicitors.

What is a fact-finding hearing?

A fact-finding hearing is a hearing ordered by a family court judge to determine a disputed fact. A fact-finding hearing will normally only be ordered if the disputed fact is central to the case and the judge can't decide what type of child arrangement order or other children court order is in the child’s best interests until the court has determined if the disputed allegation is true or not.

An example of a disputed fact is whether a marriage broke down because of adultery on the part of the wife or because of the husband's behaviour. Although the fact is disputed it would not justify a fact-finding hearing in children court proceedings as the issue does not go to the heart of the matter that the judge has to decide, namely what childcare order is in the best interests of the child. If the disputed fact was whether the husband had beaten the wife then this could justify a fact-finding hearing because if the allegation is true then contact to the father could put the mother or child at risk.

What is a finding of fact?

A finding of fact is where a judge decides if an allegation or disputed fact is true or not. For example, a judge could find that a husband had not beaten his wife. If a judge makes a finding of fact then the judge will make their decision about what child arrangement order is in a child’s best interests based on their fact finding and after assessing the child’s welfare needs and best interests. This assessment takes place at a separate hearing, referred to as a welfare hearing or final hearing.

Between the date of the fact finding hearing and the welfare hearing, the court may order CAFCASS to prepare a report for use at the welfare hearing. When preparing their report CAFCASS will proceed on the basis of the judge’s findings.

If you disagree with a finding of fact then you need to consider appealing against the finding before the court application proceeds to the welfare hearing. Your children solicitor can advise you on whether you have the grounds for an appeal.

What is the fact-finding hearing process?

The first step in the fact-finding hearing process is to decide if a fact-finding hearing is necessary. A fact-finding hearing isn’t necessary if the disputed fact won't affect what final order the judge concludes is in a child’s best interests. For example, a finding that adultery took place doesn’t mean that a child should not live with or have contact with the parent who had an adulterous relationship. For example, if an allegation of domestic violence was made then a fact-finding hearing won't be necessary to determine if the domestic violence took place or not if the person who committed the domestic abuse was prosecuted and received a criminal conviction.

If a fact-finding hearing is necessary then the court process is:

• The court determines what facts will be determined at the fact-finding hearing
• The person making the disputed allegations prepares a schedule so the other party and court know what is being alleged. This is called a Scott schedule. A schedule is needed in cases where there are a number of allegations, for example in cases involving domestic violence where a number of serious incidents are alleged to have taken place
• The person making the allegations, and any witnesses, prepare statements setting out what happened. These statements will form part of their evidence so it is important that they are full and accurate
• The person responding to the allegations, and any witnesses, prepare statements in reply
• The court may hold a short direction hearing before the fact-finding hearing
• The fact-finding hearing takes place and after the judge has heard evidence from the applicant and respondent and any relevant witnesses the judge makes findings
• The judge will then consider the listing of the court application for a welfare hearing and what further evidence is needed. For example, a CAFCASS report or a psychological assessment may be ordered. If a CAFCASS report or an expert report is ordered then the author of the report will be sent a copy of the judge’s findings. The court guidance states that the judge who made the findings should be the same judge who makes the decisions at the welfare hearing.

Is a fact finding hearing necessary?

Whether a separate fact-finding hearing is necessary will very much depend on your particular circumstances. Your children solicitor will carefully assess if such a hearing is likely to be in your interests and make representations, as necessary, to the court about whether there should be a fact-finding hearing.

LONDON BASED CHILDREN AND FAMILY LAW SOLICITORS

If you need help with making or replying to a children court application the children and family law team at OTS Solicitors can represent you and to answer your children law questions. Call us on 0203 959 9123 or complete our online enquiry form so we can set up a skype, video conference or telephone appointment for you with one of our friendly and approachable children law solicitors.