Fact Finding Hearings – Child Access Cases

What is a Fact-Finding Hearing?
A Fact-Finding Hearing (FFH) is a separate hearing, within Children Act proceedings and deals with a situation where there is a dispute of facts regarding an incident (usually more than one disputed matter), or if one party makes allegations such as domestic violence that are denied by the other party and often cross allegations are then made.  

The Judge will consider whether there should be a FFH based on the facts and the allegations made by each party that need to be adjudicated on before matters can progress. The Court will also consider Practice Direction 12J when matters of Domestic Violence are raised. 

The Importance of Fact-Finding Hearings
The reason why a FFH may take place, is for the Judge to determine whether allegations are true or false or if an incident took place or not.  

These types of hearings are important as the outcome will impact upon any decision the Judge is being asked to make in respect of Child Arrangements Orders, or injunctive orders such as Non-Molestation and Occupation Orders.

When allegations are made by one party and denied by the other party, the Court will only hold a fact-finding hearing if such allegations are considered relevant, e.g. allegations about how one parent may care for a child when they are in their care.

Cafcass Report – Section 7 of Children Act, 1989
Cafcass stands for, Children and Family Court Advisory Support Service, this is an independent organisation. 

The Court will appoint a Cafcass Officer if there are safeguarding concerns regarding a child and how their needs are being met by one or both parents. The role of CAFCASS is to remain objective, and their priority is the children’s welfare. 

A report, known as a section 7 report, will be prepared following a direction from the Court and will consist of relevant information about the children and their parents and their relationship. This report will include information obtained from enquires with the children’s school nurseries, children health, GP, and police if necessary. 

The Cafcass Officer will also speak with the children to ascertain their wishes and feelings. A section 7 report will set out what recommendations CAFCASS are making with regards to the future arrangements for the children. The Judge will consider (and usually follow) the recommendations when making decisions about what is in the best interests of the children.

How long will a Section 7 report take?
A CAFCASS report will take at least 12 weeks to complete. The Court will set a date and time for the report to be sent to the Court and to the parties.

What will happen before a Fact- Finding Hearing takes place
The Court will ask all parties to provide a list, (known as Scott Schedule) of any allegations they are seeking to rely on. 

This list must be a detailed and clear record of events with dates, times, and places, with any supporting documents, including police reports or relevant disclosure. In addition to this document there are usually witness statements that are prepared to set out the parties case.

What happens at a Fact-Finding Hearing?
The party who has raised the allegations is the Applicant in a FFH and they will present their case and be cross examined first. They are questioned first by their own barrister and then by the other party’s barrister. the Judge may also ask questions.

As part of the case, witnesses can be called to give evidence to support one party’s’ case.  Depending upon the circumstances and nature of allegations involved, expert witnesses may be required. E.g. these can be medical practitioners or experts in a particular type of injury, or psychiatrists dealing with children. Permission for witnesses and expert’s evidence must be obtained from the Court at the outset of the case. The court may also have GP records and police reports to consider in the case. 

The Respondent is then called to give evidence and to be cross examined by the Applicant’s barrister. Closing speeches are given by the barristers to provide a summary of the party’s case, including any pertinent points from cross examination and the key points of the case they ask the judge to find or not find (depending on which barrister).

How Long is a Fact-Finding Hearing?
This will depend upon the circumstances of the case. Most hearing will be 1 or 2 days, but if there are a number of issues, complexities, and several witnesses’ these hearings can go on for more than 5 days.

Judicial Continuity
Having the same Judge, is important in managing the case through the Court process, in particular when a party has made allegations of domestic abuse. 

The Judge must decide on the balance of probabilities if the allegations made by each party are true or false.  If an allegation is not proved by the party making allegations, it will be recorded as untrue. Findings must be based on evidence.

The Judge can provide a Judgment at the end of a case or request that the Judgment is handed down on another date where all parties will need to attend Court.

Final Hearing
A FFH is not a final hearing but is crucial if findings of facts are made against either party as this will impact upon what final decisions the Judge will make and determine what is in the best interests and welfare of the child(ren) at a final hearing.

It is important for any person facing allegations of incidents, or domestic abuse allegations that are disputed, and are involved in family Child Arrangements proceedings, to remain calm and focused on testing the evidence.

Ensuring that you have legal representation is important in these cases as if you do not then this can gravely affect the outcome. If you don’t have a barrister at a FFH you may not be able to cross examine the other side and may be ordered to prepare a list of queisti9oinbs which the judge will ask on your behalf (NOTE a judge will ask – NOT cross examine and test the evidence as a barrister will). The facts must be presented to the Court and all evidence considered and questioned where necessary. If the Judge finds that a fact is proven, this could have a significant impact on any final decisions a Judge may make.

Having the right advice and guidance through such a difficult and an emotional time is vital. During these proceedings decisions will be made that may impact your time with your child(ren) and their future arrangements. It is important that instruct an experienced barrister to ensure your case is prepared correctly.

If you wish to find out more about these types of proceedings or need advice about your children or their arrangements moving forward, then please contact us today.

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