What is a ‘Finding of Fact’ in a children case?

A recent news story has revealed that the father of a child has been judged to have committed sexual abuse on his young daughter shortly before her death; despite there having been no criminal proceedings brought against him and despite him having faced no criminal charges.

The ruling came in a ‘Finding of Fact’ trial in child care proceedings, which has subsequently brought calls from ex Justice minister Sir Simon Hughes for there to be a reopening of the criminal investigation against the father.

On paper, it is a confusing set of circumstances. How can somebody be found to have committed such a serious and distressing crime and yet not be criminally charged and/or tried for it?

The answer lies in the procedure for family law cases in which specific allegations have been made against a parent which relate to the welfare of his/her child/children. In this particular case the question was whether there should be concern for the siblings of the little girl in circumstances where there was suspicion against the father.

In many families, and in particular children cases, allegations are made which will have an impact on the assessment of whether there is a risk to the welfare of the child/children. In these circumstances the Court will look to either Cafcass (Children and Family Court Advisory and Support Service) or Social Services to prepare a report to the Court which investigates and advises as to whether or not such welfare risks exist.

The difficulty that these authorities have is that often the allegations are denied and so a report cannot be completed until it is decided whether or not the events took place as alleged. This is where the Finding of Fact hearing becomes relevant.

The family court will list a Finding of Fact hearing in which all of the parties concerned will give statements and be questioned as to the allegations. At the end of the hearing the Judge will make a judgement as to whether or not any or all of the allegations are founded.

The Finding of Fact hearing is similar to a criminal trial, apart from the crucial difference of the standard of proof required. Family law cases are civil cases and so the standard of proof required is that of a ‘Balance of Probabilities’; i.e. was it more probable than not that the events took place as alleged?

In criminal cases the standard of proof is much higher, with the prosecution having to prove the allegations ‘beyond reasonable doubt’. This is where the confusion often reigns. The ‘balance of probabilities’ test is a lesser standard to ‘beyond reasonable doubt’ and so a parent can be found ‘guilty’ in the civil Courts and yet not face trial in the criminal Courts.

If you are thinking about making an application to Court regarding your children and need some advice do not hesitate to contact one of our expert family solicitors on 0113 201 4900 or email andrew.smith@emsleys.co.uk

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