Happy new year to one and all!
Much like everyone else, Lamb Building Family Team has some of their own New Year goals. One is to provide more frequent updates on the website of the latest news and developments in Family Law.
What better way to start than to jump into the private children sector to answer this age-old question:
To fact-find or not to fact-find, that is the question
Family courts are well-versed in dealing with allegations and cross-allegations of domestic abuse. One of the more difficult decisions for the Court to take at an early stage is how best to deal with these allegations. This involves the Court deciding whether the truth of the allegations is to be formally determined or whether the Court can simply commence the welfare stage analysis.
The starting point must always be Practice Direction 12J.
Paragraph 16 – The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse […]
Paragraph 17– In determining whether it is necessary to conduct a fact- finding hearing, the court should consider –
- The views of the parties, and of CAFCASS;
- Whether there are admissions by a party which provide sufficient factual basis on which to proceed;
- If a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;
- Whether there is other evidence available to the court that provides a sufficient basis on which to proceed;
- Whether the factors set out in paragraphs 36/37 can be determined without a fact-finding;
- The nature of the evidence required to resolve disputed allegations;
- Whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.
Paragraph 36– In light of any findings of fact or admissions or where DA is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
Paragraph 37– In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –
- The effect of domestic abuse on the child and on the living arrangements for where the child is living;
- The effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;
- Whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;
- The likely behaviour during contact of the parent against whom findings are made and its effect on the child;
- The capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.
The case of Re H-N and Others (Children) (domestic abuse: findings of fact hearings)  EWCA Civ 448 re-explored the issue of fact-finding hearings in family courts.
To summarise some of the key points:
 […] Where past domestic abuse is found to have taken place, the court must consider the impact that abuse has had on both the child and parent and thereafter determine what orders are to be made for the future protection and welfare of parent and child in the light of those findings.
 Not every case requires a fact-finding hearing even where domestic abuse is alleged. […] it is of critical importance to identify at an early stage the real issue in the case in particular with regard to the welfare of the child before a court is able to assess if, a fact-finding hearing is necessary and if so, what form it should take.
 We are therefore of the view that PD12J is and remains, fit for the purpose […]
 For a long time now, the Family courts have not only required a party making allegations of domestic abuse to file witness statements setting out the evidence on which they rely, but also to reduce the allegations made into a ‘Scott Schedule’ to provide an agenda for the fact-finding hearing. PD12J paragraph 19(c) requires the court to consider at an early stage:
‘whether the key facts in dispute can be contained in a schedule or a table (known as a Scott Schedule) which sets out what the applicant complains of or alleges, what the respondent says in relation to each individual allegations or complaint; the allegations in the schedule should be focussed on the factual issues to be tried; …’
 […] ‘the overwhelming majority of domestic abuse (particularly abuse perpetrated by men against women) is underpinned by coercive control and it is the overarching issue that ought to be tried first by the court.’ We agree and it follows that consideration of whether the evidence establishes an abusive pattern of coercive and/or controlling behaviour is likely to be the primary question in many cases where there is an allegation of domestic abuse, irrespective of whether there are other more specific factual allegations to be determined. The principal relevance of conducting a fact-finding hearing and in establishing whether there is, or has been, such a pattern of behaviour, is because of the impact that such a finding may have on the assessment of any risk involved in continuing contact.
 When considering domestic abuse, it will not infrequently be the case that the alleged behaviour will be such that it is capable both of being the subject of prosecution as an offence before the criminal courts and being the focus of consideration in the family courts as justification for the implementation of protective measures […]
 […] ‘importation of concepts from the criminal courts to the Family Court’ is ‘inappropriate, unnecessary and unwise, and should be avoided’.
The case of K v K  EWCA Civ 468 confirmed the principles established in Re H-N.
To summarise some of the key points:
 A decision to hold a fact-finding hearing is a major judicial determination within the course of family proceedings. The process will inevitably introduce delay and postpone anything other than an interim determination of issues relating to the child’s welfare […] Further, the litigation of factual issues between parents is likely to be adversarial and, whatever the outcome, to have a negative impact on their ongoing relationship and ability to cooperate with each other as parents. It is therefore important for the court, in every case where fact-finding is being considered, to take time to identify the welfare issues, to understand the nature of the allegations, and then to consider whether the facts alleged are relevant to those issues and whether it is, therefore, necessary for the factual dispute to be determined.
 […] fact-finding is only needed if the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare.
 Whilst the court will not hesitate to adjudicate upon parental behaviour where this impacts upon the protection or welfare of a child, it is not for the court to hear about, much less to resolve, issues between the parents relating to their time together, unless to do so is likely to be necessary for, and proportionate to, the resolution of a dispute relating to the protection or welfare of a child.
Sir Geoffrey Vos also confirmed the importance of taking advantage of the MIAM at an early stage in proceedings, for a speedier resolution of the issues with the least trauma imposed on the family.
On 5th May 2022, the President of the Family Division, Sir Andrew Macfarlane, produced guidance for Judges and Magistrates on how to navigate domestic abuse in Private Law Children Proceedings.
To summarise some of the key points:
 The fundamentals are relevance, purpose, and proportionality.
 Allegations that require the assessment of a pattern of behaviour, such as controlling and coercive behaviour, do not justify a different approach. The court only needs to determine allegations of such behaviour to the extent that it is relevant and necessary to determine issues as to a child’s future welfare. Even then, the court is only required to assess the overarching issue, rather than every single subsidiary factual allegation that may also be raised.
 Always consider whether the allegations (at their highest) go to safeguarding in general or to particular circumstances that could be mitigated by supervision of contact or some other measures. If the latter and mitigations are available, why is it said that a fact-finding hearing is required?
 If your conclusion is that the allegations, if proved and however serious, would not be relevant to the decision, then no fact-finding hearing is required.
 The court must, at all stages in the proceedings, consider whether domestic abuse is raised as an issue: FPR PD 12J . However, guard against attempts to re-argue the question once a decision has been made.
To conclude, the key questions that a Court must answer before concluding that a separate fact-finding hearing is both necessary and proportionate are:
- What is the real issue in the case, in particular, concerning the welfare of the child?
- Is there any other evidence before the Court to safely dispose of the allegations?
- Would the outcome of a separate fact-finding hearing impact the assessment of the future risk to the child?
Our next article will explore how Family Courts handle allegations which involve a criminal element and will be posted on the 16th January 2023.
- Friendly reminder that this article is not to be viewed as legal advice, and is simply for educational purposes and to help keep practitioners up to date on the key legal framework
3rd January 2023