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Finding of Fact Hearings

What is a Finding of Fact Hearing?

A Finding of Fact Hearing is a type of court hearing that considers the evidence surrounding allegations, and where a decision is reached as to whether alleged incidents did or did not happen. Most commonly, these allegations concern domestic abuse. Domestic abuse includes neglect, emotional and physical harm and violence. Evidence is heard, which will normally include parties being cross-examined. After having heard the evidence, the judge will decide whether alleged incidents happened or not.

A Split Hearing is simply one which is divided into two parts. The first part of the hearing ´finds fact´ concerning allegations, and the second part decides arrangements for the children. Separate Finding of Fact Hearings will inevitably result in some delay, as the decision as to arrangements for the children will be held at a later date. The President of the Family Court has given guidance which suggests it will be rare for separate finding of fact hearings.

What is the threshold of proof?

In criminal law, allegations must be proven ´beyond all reasonable doubt´, however in family law, the threshold of proof is lower, and based on a ´balance of probabilities´. The judge has to consider whether it is more probable than not that an allegation is true, to find that the allegation was true. Similarly, if the judge finds that the allegation is probably false, it becomes false as a matter of fact.

The basis for deciding a Finding of Fact was set out by Mostyn J in the case AA v NA & Ors [2010] EWHC 1282 at paragraph 26:

"The burden of proof is upon the party who makes the allegations. It is not reversed, that is it is not for the other party to establish the allegations are not made out. It is open to the court to make the following findings on the balance of probability:
1. That an allegation is true
2. That an allegation is false."

In the case Re B (Minors) [2008] UKHL in the House of Lords, Lord Hoffmann stated at paragraph 2:

"If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not.
If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."

It would appear from this that it is up to the accuser to prove that the allegation is true, however the judge will also take note of how you come across during cross-examination. If you do not have legal representation and cross-examine the accuser yourself, similarly the way in which you do this could count against you. It is vitally important that you consider this when in court. If it is alleged you are violent, controlling or aggressive, the judge will take particular note of your demeanour. Insufficient allowance may be made for your stress at being in unfamiliar surroundings, fear concerning the impact of the allegations on your relationship with your children, and being faced with allegations which you believe to be untrue or unfair. Therefore, regardless of the stress you are under or how you feel about the allegations made against you, it is important you remain calm or you risk making it appear more probable that the allegations are true.

If is also worth considering the words of the judge in the case Re S (Abduction: Custody Rights) [2002] EWCA Civ 908 at para [25]:

"Although it is possible to appeal against a finding of fact, it is notoriously difficult to succeed in so doing. Where findings of fact are made based on the demeanour of a witness, the appeal court will seldom interfere because the trial judge has the special advantage over the appellate judge."

Will a Finding of Fact hearing always be held?

Where there are disputed allegations, a judge will decide whether or not he he considers a Finding of Fact Hearing is necessary. If the judge considers that the matters in dispute would not have a bearing on the arrangements for the children, a finding of fact or split hearing would be considered to be an unnecessary waste of the court´s time and resources. A judge may refuse to hold a finding of fact hearing even when CAFCASS and/or the parties to proceedings believe one to be necessary. A judge will only order that there be a finding of fact hearing (either separate or as a part of a split hearing) if he/she considers that a case cannot be properly decided without one.

If a finding of fact hearing is not held, this does not mean that the court believes the allegations are false (or true for that matter). The family court´s primary purpose is deciding arrangements for the children of the family, and not resolving other areas of the parties´ disputes (unless these are viewed to significantly impact on the children).

What happens prior to these hearings?

If one or both parties have made allegations about the other, the judge may decide a Finding of Fact Hearing is necessary. For this, and for a final/contested hearing, it is likely that both parties will be asked to prepare written statements, and the judge will decide if witnesses need to attend court to be cross-examined. In terms of documentation, a ´court bundle´ will need to be prepared (if neither party is represented by solicitors, the a bundle will only be required if the court directs so). A court bundle is a file (or several files) containing written evidence and other relevant paperwork related to the children and court proceedings.

For a final, contested, or finding of fact hearing, we recommend you prepare a Skeleton Argument identifying the relevant matters for the court to consider which the parties disagree upon, and also those matters upon which the parties have reached agreement. The Skeleton Argument will refer to points of law relevant to the case, a brief outline of the main arguments (submissions of fact), and a summary (stating what it is you want the court to do). The Skeleton Argument should ideally include a reading list e.g. details of case law, authorities etc.

What happens during these hearings?

The judge decides upon the running order, which may change to suit the court and in consideration of any witnesses being called and their needs. Such changes to the running order are not and should not be considered as disadvantaging any particular side.

In our experience, the following running order is quite common in terms of the sequence of events at a finding of fact hearing (but again is case dependent, and at the judge´s discretion):

  1. The applicant (person who applied to the court) and then the respondent (the other party) make their opening submissions. Where they are using a solicitor or barrister, their legal advisor will do this for them. A submission involves verbally setting out the matters for the court to consider, and may include a brief history of events which led to the finding of fact hearing or final hearing.
  2. The parties then present their Evidence in Chief, including cross-examining witnesses.
  3. The parties' statements form the basis of their evidence, and they may be cross-examined on the contents by the other party or their legal representative. The judge too may ask questions.
  4. If the parties are represented, their solicitor or barrister will ask them questions and in this way, present their evidence. Where parties are not represented (are litigants in person), we recommend they take a written submission into court which they can ask to read out, whereby they set out their evidence in chief, presenting their arguments and making reference to their evidence. The judge may ask them questions on their evidence.
  5. If Cafcass have been involved, and are to be questioned on their report, they may be called to be cross-examined first so they can be released from the court. Sometimes the Cafcass Officer will remain and be invited to make further comments, but only if ordered to do so by the judge.
  6. At a final hearing, if a Guardian has been appointed to represent the children's interests, they usually present their evidence last.
  7. The parties give their closing submissions, summing up their arguments.

Depending on whether the hearing is a finding of fact or final hearing, the judge will decide whether allegations are true or false (e.g. following a finding of fact hearing), and following a final hearing, what the arrangements for the children should be. The judge should include the reasons for their decision in a judgment which may be given on the day of the hearing, or reserved (the judge sets a further date for giving the judgment, allowing them time to consider the evidence and set down their reasons on paper).

The court procedure in respect of Findings of Fact concerning domestic violence and abuse are set out in Practice Direction 12J which can be downloaded via the button below:

Practice Direction 12J

Michael Robinson © 2014

Family law information for parents whose children are resident in England and Wales

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