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Understanding Fact-Finding Hearings
A Family Court Fact-Finding Hearing, also known as a Fact-Finding Hearing or simply a "finding of fact" hearing, is a legal proceeding that takes place in family court. It is a crucial part of certain family law cases, particularly those involving disputes or allegations of domestic abuse and coercive control that need to be investigated and determined by the court.
The purpose of a Fact-Finding Hearing is to establish and determine the 'truth' of specific factual issues or allegations in the case. For example, in a child arrangements case, one parent may accuse the other of domestic violence and that parent denys the allegations. The court will need to determine whether the allegations may be relevant to the welfare of any child and child contact and if so, to consider whether a fact-finding is needed to determine the allegations made.
During the Fact-Finding Hearing, both parties present evidence and where required, call witnesses to support their positions. This evidence can include statements, documents, expert reports, and other relevant information. The judge presiding over the case will carefully consider the evidence presented and make findings based on the balance of probabilities, meaning they will decide which version of events is more likely to be true.
It's important to note that a Fact-Finding Hearing is distinct from other types of family court hearings. After the Fact-Finding Hearing, the court may proceed to asking Cafcass to complete a Section 7 Report to rpovide an expert opinion on the impact of any findings on child arrangements and recommendations on the next steps.
Practice Directions 12J
Practice Direction 12J (PD12J) refers to a set of guidelines issued by the Family Division of the UK's High Court. PD12J is part of the Family Procedure Rules, and it deals specifically with issues related to domestic abuse and harm in cases involving child arrangements. The primary purpose of PD12J is to provide guidance to the courts on how to handle cases where domestic abuse is a factor, especially when determining child custody and contact arrangements.

The key points covered in Practice Direction 12J may include:

  • Identification of Domestic Abuse: It provides guidance on recognizing the different forms of domestic abuse, which may include physical, sexual, emotional, verbal, financial, psychological abuse and coercive control.
  • Assessing the Impact on Children: The practice direction emphasises the need to assess how domestic abuse affects children involved in family court proceedings. It recognises that witnessing domestic abuse can have a profound and lasting impact on children's emotional and psychological well-being.
  • Factors to Consider in Child Arrangements: PD12J highlights factors the court should consider when making child arrangements, particularly in cases involving domestic abuse. These considerations aim to prioritise the safety and welfare of the child and any parent or family member who has experienced abuse.
  • Relevant Information and Evidence: It addresses the types of evidence and information that the court should consider when assessing domestic abuse allegations, including the credibility and relevance of such evidence.
  • Protective Measures: PD12J suggests the use of protective measures, such as non-molestation orders and occupation orders, to safeguard victims of domestic abuse and their children during the court proceedings.
  • Child Contact Arrangements: It provides guidance on how the court should approach child contact arrangements when there are allegations or evidence of domestic abuse.
Practice Directions 12J
Practice Directions 12 Guidance
Flow Chart
Child Arrangements
First Hearing Dispute Resolution Appointment
Party makes allegations of domstic abuse or harm using the C1a
The party submits a statement, (usually without permission of the court!), making allegations
At the First Hearing The court will apply Practice Directions 12J on allegations of harm and
domestic abuse to determine whether a Fact-Finding Hearing is necessary,
relevant and proportionate to determining child arrangements.
If the court needs more information, they may require the parent making the allegations to
produce what is known as a SCOTT SCHEDULE of allegations and an evidential statement
and evidence to support the allegations.
The parent defending the allegations will be provided with an opportunity to
respond to the allegations with their own statement and evidence.
The court will hold a Dispute Resolution Appointment to determine which allegations will
need to be heard at the Fact Finding.
Prior to Fact Finding the court may hold a Ground Rules Hearing to determien how evidence will
will be heard and for any Special Measures that may be needed.
At the Final Hearing, there will be cross-examinations and Final Submissions before
the court makes a Judgement
One or both parties may be entitled to apply for a Qualified Legal Representative (QLR)
Following a Judgement, it is likely that Cafcass will be required to do a Section 7 Report
The court may also set an exceptional hearing to determine any interim contact if appropriate.
The General Principles
  • The burden of proving any fact lies on the party asserting that fact. The standard of proof required is the civil standard of proof, that is that the fact be proved on the balance of probabilities. The analysis is a binary analysis – each allegation is either found to be “proved” or “not proved.
The Standard of Proof
Re B (Minors) [2008] UKHL 35; [2009] 1 AC 11 at [70]

'---the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.'

Allegations and Evidence
Child) (No 2) [2011] EWCA Civ 12; [2011] 1 FLR 1817.

Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation.

Re S (A Child) [2015] UKSC 20 at para 20.

'The court is not bound by the cases put forward by the parties, but may adopt an alternative solution of its own. The court is not bound by the choice of evidence put forward by the parties, but can decide for itself what evidence it wishes to hear.'

B (A Child) [2018] EWCA Civ 2127,

"It is an elementary feature of a fair hearing that an adverse finding can only be made where the person in question knows of the allegation and the substance of the supporting evidence and has had a reasonable opportunity to respond.  With effective case-management, the definition of the issues will make clear what findings are being sought and the opportunity to respond will arise in the course of the evidence, both written and oral."

MacFarlane LJ in Re W (A Child) [2016] EWCA Civ 1140 [2017] 1 WLR 2415

"Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:

  • Ensuring that the case in support of such adverse findings is adequately 'put' to the relevant witness(es), if necessary by recalling them to give further evidence;
  • Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;
  • Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness."
Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10; [2009] 1 FLR 1145,

A Judge is not required to 'slavishly adhere' to a schedule of proposed allegations placed before them.

The Nature of Allegations: Domestic Abuse and Coercive COntrol
Hayden J in F v M [2021] EWFC 4: Essential Key Points
Re H-N and Others (children) (domestic abuse: finding of fact hearings) Key Points
Witness Credibility and Lies
Judgement of King LJ Re A (A Child) (Fact Finding) [2020] EWCA 1230
The dangers of over reliance on impression in the witness box, the importance of setting out briefly conclusions drawn from lies, and the importance of making a balanced assessment of the evidence of witnesses including the reliance to be placed on contemporaneous documentary evidence as contrasted with witness box oral testimony.
Case Law re Witness Credibility and Lying within the Family Court
Some Much Needed Common Sense!
Peter Jackson LJ in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 (paragraph 61):

“Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict.”

In Z, Re (Care Proceedings: Reopening of Fact Finding) [2023] EWFC 137, Mrs Justice Knowles concluded that she was “unpersuaded that there are solid grounds for believing that the 2016 findings [made by HHJ Orrell] require revisiting”.

A Family Court judge has rejected a mother’s “speculative and hopeful” application to reopen findings of fact made in 2016, which found her to be the perpetrator of injuries inflicted on her child when he was a small baby.

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Philip Kedge is a retired police Chief Inspector and the founder and director of the McKenzie Friend UK Network. His aim is to take family court matters out of the hands of lawyers with an ethical business to reduce conflict and acrimony, to provide access to cost effective McKenzie Friend national services, to offer training and to reduce the emotional harm to children.
Phil is the founder of the National
Campaign #lightnothate