Where allegations of domestic abuse are made in private children proceedings, the court may direct a fact-finding hearing. The court’s paramount consideration throughout the proceedings remains the welfare of the child.
Before a decision on whether to hold a fact-finding hearing is made, the court often directs the party making allegations to file a schedule of allegations, with a statement in support. The responding party then files a statement in response to the allegations. The court will then consider the allegations and determine whether a fact-finding hearing is necessary and proportionate. Not every allegation will justify a separate fact-finding hearing.
A fact-finding hearing does not determine where a child should live or how much time they should spend with each parent. The purpose is to establish whether disputed allegations are proven on the evidence and to provide a factual matrix on which to proceed. These findings can have a significant impact on the court’s later decisions about child arrangements.
A key consideration for the court is Practice Direction 12J (PD12J) of the Family Procedure Rules, which applies where domestic abuse is alleged or admitted. PD12J recognises that domestic abuse can have an impact on the child.
The court will keep the requirements of Practice Direction 12J under review throughout the proceedings. It is not uncommon for the court to conclude at an early stage that there is no need for a fact-finding hearing, only to determine later in the proceedings that such a hearing is required.
At the hearing, both parties have the opportunity to give evidence, be cross-examined, and call witnesses where appropriate (and where permission has been given by the court). The judge will consider all of the evidence and determine whether each allegation is proved on the balance of probabilities.
Where allegations are raised that relate to the relevant child’s welfare, the court may decide that a section 7 report (The Children Act 1989) is appropriate, instead of a fact-finding hearing. For assistance with child arrangements proceedings, please contact clerks@anvilchambers.co.uk