A fact finding hearing is essentially a ‘mini trial’ in a court hearing which is held in circumstances where allegations are made that could affect the final outcome of a case. If you make an allegation that is disputed, the judge will consider whether it’s necessary for there to be a fact finding hearing in order to determine whether the allegations are true, on the balance of probabilities.
When do fact finding hearings get arranged?
The court will only list a fact finding hearing in cases where determining the allegations would make a difference to the court’s final decision in the matter, for example re-establishing direct contact with a child, or increasing contact to include overnight stays. If the other party admits the allegations, or if they have been found guilty in a criminal matter, it’s unlikely for a fact finding hearing to be needed.
Fact finding hearings are most commonly organised in children proceedings, where one parent has made allegations against the other, which could impact child arrangements.
Practice Direction 12J of the Family Procedure Rules 2010 contains guidance on determining whether such a hearing is necessary. Guidance from the President of the Family Division dated 5 May 2022, states that a judge should consider:
- the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of a child arrangements order;
- that the purpose of a fact finding is to allow assessment of the future 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 fact-finding is proportionate.
These points should be taken into account alongside the fundamental considerations of relevance, purpose and proportionality.
The President stated that allegations that require the assessment of a pattern of behaviour, such as controlling and coercive behaviour, do not justify a different approach. The court only needs to determine allegations of such behaviour to the extent that it’s relevant and necessary to determine issues as to a child’s future welfare. Even then, the court is only required to assess the overarching issue, rather than every separate factual allegation.
It should be considered whether alternative mitigation could be employed to ensure that contact is safe, for example supervision pending a determination by the court.
Any decision regarding whether a fact finding hearing is or is not required should be recorded upon the face of the order, with reasons, to avoid future dispute or confusion.
Judges must be aware of the concern that listing such a hearing causes delay, which can be detrimental to the children and parties involved.
What is the purpose of a fact finding hearing?
The purpose of a fact finding hearing is to determine the allegations so that the judge dealing with the matter is able to conclude the case fully, for example by determining the necessary child arrangements moving forwards. If the outcome of the hearing would not affect the judge’s decision, no fact finding hearing is required.
What happens during a fact finding hearing?
The judge will control the fact finding hearing to ensure that you, the other party and both sides’ counsel are kept to the point, dealing with previously identified allegations and issues.
The hearing will involve both you and the other party giving evidence regarding the allegations raised, as well as evidence from any third party witnesses if necessary. If counsel is instructed on, they will ask the questions of the other side, as well as summarising your case at the conclusion of the proceedings.
You’re first asked questions by your own barrister and then you will be cross-examined by the other party’s barrister. Cross-examination usually takes longer, as the other party’s barrister will attempt to undermine your case.
The judge will give judgement at the end of the hearing, either verbally or in written format. The judge should ensure that any summary of findings made is fairly and accurately recorded in the order or a document attached to it. It may be that the judge needs to consider their judgement in more detail and therefore there may be some delay in receiving the written judgement. Once the judgement has been received, the court will list the next hearing as necessary in your case.
It’s possible for the court to make a costs order against you if findings are made against you, or the allegations that you have made are not proven. There’s still a high bar for a costs order to be made, however repeated unfounded allegations can lead to consideration of costs orders for litigation misconduct.
What happens if a Judge decides that a fact finding hearing is unnecessary?
If a judge decides that a fact finding hearing is unnecessary, this should usually be the final word on the matter, as there’s specific guidance stating that the question should not be re-argued once a decision has been made. The only reason to reconsider would be if there was a change after the original analysis. If ‘new’ evidence relating to past events is presented, a judge will need to ask why it was not available or disclosed before. If no good reason is advanced, then a judge may refuse to admit it. The more significant the evidence is said to be, the more compelling the explanation needs to be for its late receipt.
How to prepare for a fact finding hearing?
It’s not uncommon for the court to order that a schedule of allegations should be put forward in advance of a fact finding hearing (although recent case law suggests that this is perhaps not the best method for dealing with all cases). This is known as a Scott Schedule. The court may also request a written statement setting out the history and the background to any allegations of abuse.
A party should also consider whether evidence from any third party professionals would assist their case, for example if they spoke with a GP at the time of any allegation, it’s possible to request a GP letter to confirm the position. If a friend saw the incident or allegation, they may be able to file a statement with permission from the judge.
In terms of preparation for the actual hearing date, any party should focus on the key points that they wish to put across to the court. This should usually be done by reviewing any statements made and refreshing your memory. It’s vitally important that the person is a credible witness. You should ensure that you’re aware of the order of the proceedings, either by asking your barrister or solicitor (or if you’re unrepresented, the judge or judge’s clerk).
You should also be aware that you’re likely to be cross-examined by the other party’s legal representative (or potentially by the other party), which can be daunting. Your legal representative should be able to inform you about the likely questions that will be asked and how to prepare yourself for the experience in court.
If you have any questions or concerns regarding fact finding hearings, please do get in touch with Rayden Solicitors.