Guidance on Fact-Finding Hearings issued to the Judiciary
Following on from recent reported court decisions which have sought to clarify how the courts should approach cases when there are allegations of domestic abuse in private law Children Act Proceedings, and how to determine whether a fact-finding hearing is necessary, the President of the Family Division, Sir Andrew McFarlane, has published guidance to the judiciary.
The guidance is aimed at judges and magistrates, and sets out the practical steps that should be taken when considering whether or not a finding of fact hearing is required, and what should be considered in such cases. Although aimed at the judiciary, it is useful for legal practitioners when considering how cases should be argued.
In brief, the guidance says that unless the allegations of abuse are relevant to the decision about a child's welfare, the court should not be used as a forum to determine arguments about domestic abuse. It is for the Court, and only the Court, to decide whether a fact-finding hearing is required, and if so, what evidence is required to enable to Court to determine the truth or otherwise of the allegations (on the balance of probabilities).
Judicial continuity is to be encouraged i.e. that the same judge or magistrates will hear the case at each hearing.
Thus, the court will take into account:
a) The nature of the allegations, and the extent, if any, to which they are relevant to future Chid Arrangements.
b) That the purpose behind a fact-finding is to assess future risk to a child, and the impact of abuse on the child.
c) The question as to whether a fact-finding hearing is proportionate, or whether other evidence is sufficient to render a fact-finding hearing unnecessary.
Allegations that require an assessment of a pattern of behaviour, such as an allegation of coercive and controlling behaviour, are treated no differently to any other allegations of harm.
If the court feels that the allegations raised do not go to issues regarding the child's welfare, then no fact finding should be ordered to take place. The Court must, however, consider whether domestic abuse is being raised as an issue at all stages of any case, but the guidance clearly warns against allowing attempts to re-argue the need for a fact- finding hearing once a decision has been made.