What is a finding of fact hearing?

A new Practice Direction has come into effect once again giving guidance as to when finding of fact hearings should take place. However, what is a finding of fact hearing?

If a couple separate and cannot agree on who their children are to live with and how much time they are to spend with each parent, an application to the Court can be made for a Child Arrangements Order.

Within proceedings about children, a Judge will consider each parent’s view. If one of the parents claims that either they, or their children, have suffered from domestic violence or abuse during the relationship, a Judge may decide that there should be a finding of fact hearing.

Before a finding of fact hearing, a Judge will make some procedural orders called ‘directions’. The Judge directs that certain things should be done to prepare for the finding of fact hearing. These directions/orders may include, for example, that police records be made available and that the parent making the allegations prepares a Scott Schedule – this is a schedule set out in a table form giving a summary of each separate allegation, for example:

Date

Allegation

Father’s response

Judge’s finding

2.10.2016

Mother was assaulted by Father and police called (reference to any evidence)

No charges made

Assault denied (reference to any evidence)

A finding of fact hearing then takes place: the Judge asks for all written evidence to be sent to the Court beforehand in a bundle and for each parent and any witnesses to give evidence and be cross examined. The Judge then makes a decision about each allegation made and if, on the balance of probabilities, they believe what one parent says, or what the other parent says.

At this stage, the Judge has decided who they feel is telling the truth. CAFCASS (Children and Court Advisory Support Service) are then often asked to prepare a report recommending to the Court what arrangements should be made for the children, taking into account who the Judge believes after the finding of fact hearing. This may involve some expert evidence, for example from a psychologist.  The Judge will then make a final decision about what should happen.

These proceedings can be expensive in terms of legal fees, can involve several court hearings and can take several months. For these reasons, if they can be avoided, the Practice Direction states that they should be. The fundamental question for the Judge is what difference, if any, it will make to how much time the children are to spend with each parent and in what circumstances, if the Judge makes a decision that one parent has suffered from domestic violence.

For examples of finding of fact hearings and allegations of domestic abuse and violence, read case study one and case study two.

These are complex legal proceedings and it is important that you receive the right legal advice. Emsleys' Family Law team does not have a contract with the Legal Aid Agency and cannot offer legal aid. For more information, please contact us on 0113 201 4900 for a free, initial discussion.

Gabbie  Clasper

Written by

Gabbie Clasper

Head of Family Law

Gabbie has over 20 years’ experience in family law. She has expert knowledge in complex issues including financial aspects following divorce; pre and post-nuptial agreements; cases with an international element; and civil partnerships. Gabbie is regularly instructed by clients based across the country and abroad. She...

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