As a family lawyer, I represent parents and separating couples at fact-finding hearings. There is a lot of confusion about what a fact-finding hearing is and whether you need one to help resolve a family law dispute.
In this blog, I explain what a fact-finding hearing (also referred to as a finding-of-fact hearing) is and why a family law solicitor may recommend, or the court may order, a fact-finding hearing.
London Family and Children Law Solicitors
If you need representation in family law court proceedings then call family law solicitor Angelique Holm on 0203 488 8620 or email info@hopeholm.co.uk or contact us here.
What is a fact-finding hearing or finding-of-fact hearing?
A fact-finding hearing in family law proceedings determines a fact when a fact is in dispute. Unless the finding of fact is successfully appealed neither you nor your partner can try to go behind the fact and say it didn’t happen. By making a finding of fact the court has determined the issue once and for all.
You don’t need a fact-finding hearing when there has been a criminal conviction over the issue in dispute, such as a conviction for assault or harassment, as the family court won’t go behind or reinvestigate a criminal conviction but can use the conviction in the same way as a finding of fact made by a family court.
In most family law cases facts that are in issue as we all have different memories of events and perceptions. As the late queen Elizabeth famously put it ‘recollections may vary’.
The job of your family law solicitor is to look at the disputed fact and see if it is central to the family dispute. What do I mean by that? If fact A is true then you will probably be excluded from the family home and an injunction order made or be refused unsupervised contact with your child. If fact A isn’t found to be true by a family law judge, then that will change how the courts deal with the application for an injunction order and child arrangement order.
The fact that is in dispute could be anything but it has to be critical or crucial to the outcome of the family law proceedings.
Some examples of crucial facts in dispute
When your partner disputes everything you say it is both annoying and frustrating. You may want the judge to hold a fact-finding hearing to look at your allegations and prove your facts so your allegations are on the court record as true. You may want your ex-spouse or partner to be labelled in court as a liar or as an unreliable witness.
The court won’t order unnecessary fact-finding hearings as they add to the legal costs of a case and extend the time for a decision on the issue in dispute because of the extra court hearing.
To set the scene, here are some examples of what could be critical facts in children law or domestic violence, or divorce financial settlement court proceedings:
- The applicant was raped by the respondent who threatened to kill her if she reported the assault to the police so there was no police investigation at the time of the rape or conviction. The applicant feared for her life and the safety of their child and does not want to ever come into contact with the respondent again. She is therefore refusing child contact with the father. She wants an injunction order and the respondent wants a child arrangement order so he can see his child
- The applicant and respondent are in divorce financial settlement proceedings and in a dispute over who should get the house and other assets. The applicant’s father has been joined as a party to the court case as he says he lent the couple £150,000 as a house deposit and he wants his money back in accordance with his verbal agreement with the applicant and respondent. The respondent says the money was a joint gift to the couple and so therefore all the equity in the property is available for sharing between the applicant and respondent
The truth of these allegations may be crucial to the eventual court orders but in other cases, something that initially appears to justify a fact-finding hearing may be unnecessary in the opinion of the court.
For example, if a mother responding to a child arrangement order application for child contact says she is opposed to her child having contact because the father took recreational drugs during the marriage. However, if the mother let the father have contact until recently (so there is a close bond between father and child) a historical finding of recreational drug usage that didn’t affect the parent’s ability to care for his child during and after the marriage is unlikely to be critical to the judge’s decision over whether it is now in the child’s best interests to have ongoing contact. A current drug test may be useful if the mother is alleging recent and ongoing drug usage by the father that she says affects the father’s parenting capacity during contact visits.
Fact-finding hearings provide the factual basis for decision hearings
A finding of fact provides a factual basis for a CAFCASS officer preparing a welfare report in child arrangement order application proceedings or a psychologist or other expert asked to prepare a report in children law proceedings. Ultimately the determined facts help the judge when deciding what order is the appropriate one to make.
Take the case of the rape allegation in the example above. Without a fact-finding hearing, the rape would simply be a disputed allegation and it isn’t the job of a CAFCASS officer to decide if the rape occurred or not. All the CAFCASS officer could say in their report is if the judge at the final hearing decides the rape happened then their recommendations on contact would be X and that if the judge decides the rape didn’t occur then their contact recommendations would be Y. With a fact-finding hearing, the CAFCASS officer can be provided with a note of the judge’s fact-finding decision so they know the exact circumstances and rape findings. They may be critical to their recommendations, such as the degree of violence used and the use of threats to kill.
The judge at the welfare or final hearing stage of the father’s child arrangement order application will remind themselves of their earlier fact-finding, hear evidence from the mother and father on what child arrangement order is in the child’s best interests, consider the CAFCASS officer’s recommendation and make a decision based on the child’s welfare.
For example, the court could order no direct contact or supervised contact or for any contact arrangements to be reviewed after the father has attended anger management courses and the mother and child have received support and counselling. The judge might come to that view based on his assessment of the child’s welfare because the child is saying they want to see their dad.
Fact-finding hearings aren’t straightforward as you often find that one party to a court application wants one and the other party does not think one is necessary. In the right cases, they can save time and money because you have a clear factual basis for decisions at the final hearing.
London Family and Children Law Solicitors
For advice on fact-finding hearings and family law disputes call family law solicitor Angelique Holm on 0203 488 8620 or email info@hopeholm.co.uk or contact me here.