What is a Finding of Fact of Domestic Abuse?

Family lawyers and judges talk of findings but what is meant by a ‘finding of fact’? What are the implications of the family court making a finding of fact? In this article our family solicitors and domestic abuse lawyers consider how a finding of domestic abuse might have an impact on you and your family.

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If you need representation for your divorce, children or financial settlement proceedings call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

What is a finding of fact?

A finding of fact is a determination by a judge about the truth of a disputed allegation. After a contested court hearing findings are contained in a judgement.

For example, if you allege you have been subjected to domestic violence and you received a bruised eye as a result of domestic abuse and the allegation is disputed. Your former partner could accept that you sustained an eye injury but allege you received it whilst intoxicated, and you fell whilst holding the baby. The court may need to make a finding on which version of events is correct if one of you applies to court for an injunction order ( a non-molestation order or occupation order) or for a child arrangement order (a custody or contact order).

Why are findings of fact important?

Findings of fact are important because a judge bases their family decision on the findings they make. For example, if the judge finds that the eye injury was caused by a punch the court is very likely to make an injunction order to protect the victim of domestic abuse. If the court finds the bruised eye occurred because of a fall due to a long-standing alcohol problem (rather than a one-off incident) this may affect the type of child arrangement order the court decides to make.

When the court makes a finding of fact the ‘finding‘ doesn’t go away. For example, if the court finds a parent fell whilst drunk and holding the baby that finding remains in place unless the judge’s finding is appealed. However, if the parent applies again for a child arrangement order the court will look at the finding and any other information, such as attendance at alcohol awareness groups or other types of treatment or will look at how the child is now older and less at risk of serious injury through a fall whilst in the parent’s care.

As a finding of fact of domestic abuse is really important to the judge’s decision on an injunction or other type of family law application its best that you make sure your case is presented properly. For example, do medical records show that you went to the GP before the alleged incident with regular injuries that the GP thought were indicative of domestic abuse because of scratches or other signs of abuse?

A finding of fact of domestic abuse is not only be important in your injunction application but can also be very influential if:

• You or your ex-partner are applying for a child arrangement order or a prohibited steps order.
• You or your ex-husband or wife are applying to court for a financial settlement and it is your case that you need spousal maintenance because of the psychological or physical effect of domestic violence on your ability to work or on your earnings capacity.
• You are in the UK on a spouse visa and the spouse visa will be curtailed because of the breakdown of your relationship. If your relationship ends because of domestic violence you can apply to the Home Office for indefinite leave to remain using the domestic violence concession. You are more likely to be granted indefinite leave to remain using this route if there has been a criminal court case and conviction or a finding of fact in family court proceedings or you have other evidence of domestic violence.

What is a finding of fact hearing?

If you are applying for an injunction order the court is likely to determine the facts and grant a non-molestation order or occupation order without a separate finding of fact hearing. However, if you or your former partner are applying for a child arrangement order, or other type of family law order, the judge may decide that it is best to proceed with the application in a two-stage process:

• A finding of fact to determine the disputed allegations.
• A second hearing to decide what long term court orders are appropriate in light of the findings.

The second hearing won't go over old ground and reconsider if the finding of fact was right but the hearing will look at new evidence, such as a CAFCASS report in children law proceedings or a psychological report or other evidence to show how things have moved on since the finding.

It is the decision of the family law judge to decide whether or not there will be a separate finding of fact hearing or alternatively just one hearing where the judge makes findings and makes a decision. Whilst your family lawyer can make representations about the preferred method, ultimately it is up to the judge to decide if there is to be a separate finding of fact hearing. When making the decision the judge will be influenced and guided by caselaw that offers guidance for when finding of fact hearings are appropriate in domestic violence and other types of family proceedings.

Case law says a separate finding of fact hearing should only be ordered by a judge if the finding will make a difference to the decision. In addition, a finding of fact hearing isn’t necessary if the criminal court has found the alleged perpetrator guilty of an offence. That’s because the family court can use the criminal conviction as a finding.

• For example, if the police attended the incident where one parent sustained a bruised eye and the other parent was charged and convicted of assault there is no need for a finding of fact hearing in any injunction or child custody court proceedings because of the criminal conviction.
• For example, after the injured eye incident, the parents separated but there was no finding of fact. Two years later the incident is being relied on in contested child arrangement order proceedings. The father, against whom the allegation was made, has been seeing his child every fortnight. There have been no further allegations of domestic abuse. He wants to increase contact to every week. As the mother has agreed to fortnightly contact for two years a finding of fact over whether the bruised eye was caused by the father won't affect the judge’s decision on whether fortnightly or weekly contact is in the best interests of the child.

What happens when there is more than one allegation of domestic abuse?

Family lawyers understand that in most family situations there is more than one ‘incident’. There may be a whole series of allegations, going back months or years. There may also be counter allegations.

In a recent family court case called Re B-B (Domestic Abuse: Fact-Finding) [2022] EWHC 108 (Fam), the high court emphasised the benefits of considering the evidence of each type of domestic abuse in ‘clusters’. The court recommends this approach is used so the judge can build up a picture of the overall relationship. In complex cases, or where there are allegations ranging over a time period, the court can look at the emotional abuse in a separate cluster to the allegations of financially controlling and coercive behaviour and the allegations of sexual or physical abuse.

In Re B-B the court said by adopting a cluster approach it was easier to see if there was a pattern of behaviour or not, assess the culminative impact of the behaviour on the victim, and make appropriate findings of fact. Looking at clusters of allegations helps the court can get a better idea of how a complex and abusive relationships, and the nature of the abuse, may have changed over the years or help explain why the victim of the abuse was so worn down by the pattern of behaviour. For example, a series of physical assaults or verbal abuse may, taken as a whole, have had a major impact on an abused partner’s ability to make decisions because of the effect of the pattern of behaviour and domestic violence on confidence and self-esteem.

How can OTS Solicitors help?

A finding of fact isn’t just about today. It will affect all the tomorrows’ for you and your family. If allegations of domestic abuse are disputed call us for friendly specialist legal advice on your best options.

Online and London Family Law Solicitors and Domestic Abuse Lawyers

For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.