Fact-finding hearings – where are we now?

As family law specialists, we are finding that in more and more cases concerning arrangements for children, much thought must surround any issues of domestic violence within the family and the ultimate effect this may have on the children as to any long-term arrangements that are ordered by the court on their behalf.

Specialist advice is crucial from the outset, whether it is to determine urgently what injunctive relief is required through the family court to protect one of the parties or how to ensure that the interests of the children are carefully considered. If there has been domestic violence within the relationship the court will need to decide whether it would be prudent for there to be a fact-finding hearing before arrangements for the children can be determined. We have represented many parents in fact-finding hearings, whether that is because allegations have been made against them or In situations where they are subject sadly to abuse and protection is needed for them through the courts.

The court has to consider very carefully, where allegations of abuse are made, whether a fact-finding hearing is appropriate taking into account certain factors such as

The nature of the allegations and the extent to which those allegations are likely to be relevant to the making of the child arrangements order.
To ensure that the purpose of fact-finding is to allow assessment of the risk to the child and the impact of any abuse on the child.
Whether fact-finding is necessary or whether other evidence suffices, and
Whether a fact-finding hearing is proportionate.

The government have issued guidelines in relation to domestic abuse. When considering behaviour that constitutes abuse it states that the behaviour of a person “A” towards another person “B” is domestic abuse if,

A and B are each aged 16 or over and are personally connected to each other, and
The behaviour is abusive.

Behaviour is “abusive” if it consists of any of the following

Physical or sexual abuse.
Violent or threatening behaviour.
Controlling or coercive behaviour.
Economic abuse.
Psychological, emotional or other abuse.

And it does matter whether the behaviour consists of a single incident or a course of conduct.

“Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to “acquire, use and maintain money or property”; or Obtain goods or services.

For the purposes of the legislation, A’s behaviour may be behaviour “towards” B despite the fact that it consists of conduct directed at another person (for example, B’s child).

People are personally connected if:

They are, or have been, married to each other.
They are, or have been, civil partners of each other.
They have agreed to marry one another (whether or not the agreement has been terminated);
They have entered into a civil partnership agreement (whether or not the agreement has been terminated);
They are or have been in an intimate personal relationship with each other;
They each have or there has been a time when they have had, a parental relationship in relation to the same child (i.e. parents or have PR).
They are relatives.

It is important to note that a fact-finding hearing is not regarded as free-standing litigation. It always takes place within proceedings to protect a child from abuse or regarding a child’s future welfare.

It must be remembered that a fact-finding hearing is not an opportunity for the parents of children involved in court proceedings to air their grievances against one another. We are finding this is often commonplace and something that Courts have to grapple with. It is important that matters are focused where there are allegations of domestic violence to ensure that parties are safe and most importantly, the needs of the children are met.

If a fact-finding hearing is to be justified in the first place, the Court must be able to identify how any alleged abusive behaviour is, or maybe, relevant to the determination of the issues between the parties as to the future arrangements for the children.

We have recently received guidance from the President of the Family Division in the leading case of Re P (Service on Parent in a Refuge) [2023] EWHC 471  Helen Habershon and Lisa Mckay of Blanchards Law represented the Applicant in the above case, where McFarlane P considered the facts of a case where a mother was in a refuge. The case involved the service of location and disclosure orders which had been made against a number of government bodies and named staff at a refuge. The refuge applied to vary or discharge the order. A summary of the guidance is attached to the judgment attached and is now followed in cases such as these.