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. In these cases, we must also consider the ultimate effect this may have on the children. Therefore, we focus on any long-term arrangements that are ordered by the court on their behalf.

Specialist advice is crucial from the outset. This applies whether it is to determine urgently what injunctive relief is required through the family court to protect one of the parties. It also applies to situations where the interests of the children must be 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.

This decision is necessary before arrangements for the children can be determined. We have represented many parents in fact-finding hearings. This might be because allegations have been made against them. Alternatively, it can be in situations where they are subject sadly to abuse. Furthermore, in these cases, 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.

In making this decision, the court will take 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.

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:

(Applies if they are or have been:)

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

Fact-finding hearing

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

The fact-finding hearing is not an opportunity for the parents involved in court proceedings to dispute grievances. However, 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. In this way, 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. These are 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. In that case, McFarlane P considered the facts of a case where a mother was in a refuge. Moreover, 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 then applied to vary or discharge the order. A summary of the guidance is attached to the judgment attached. This guidance is now followed in cases such as these.