Written by Fiona O'Sullivan

Consultant at Weightmans

Fiona specialises in the financial aspects of relationship breakdown, with particular expertise in pensions.

In cases concerning arrangements for children, it is very common for factual disputes between the parties to arise. The court must be very careful to distinguish between allegations, which if true, would impact on the welfare of the child or children concerned.

The court must be very careful to distinguish between allegations, which if true, would impact on the welfare of the child or children concerned.

The court exercise great caution and consider the relevance of allegations to the issue to be determined. If, for example, serious allegations are made against one of the parents, but the incidents occurred before the child was born, or when the child was much younger, then the court is unlikely to investigate those historical allegations, as they will not directly impact on the time that parent will spend with the child.

Where the court is satisfied that the allegations, if true, will impact on the welfare of the child, then the court will order a separate hearing to consider the evidence about the allegations. Having considered the evidence the court will make findings in writing. The hearing is known as a fact-finding hearing.

A fact-finding hearing may be necessary if the following allegations have been made:

Alcohol or drug abuse;

Physical or sexual abuse;

Verbal or emotional abuse;

Repeated non-compliance with previous court orders.

The decision to direct a fact- finding hearing is a judicial decision, not one for the Cafcass officer or for the parties. However, in considering whether to direct a fact-finding hearing, the court will consider the views of the parties and of Cafcass, It will also consider whether the party facing the allegations has made admissions, which could provide a sufficient basis on which to proceed, or whether there is other available evidence which provides a sufficient basis on which to proceed.

Although a fact-finding hearing may delay the case and mean that additional time is spent at court (in some cases many additional days), the early resolution of whether relevant allegations are found to be true by the court enables the substantive hearing to proceed more quickly, and enables the court to focus on the child’s welfare with greater clarity.

Having reached the conclusion that a fact-finding hearing is necessary, the court will then give detailed directions as to how the fact-finding hearing is to proceed. These directions will include specifying the written evidence from the parties and considering whether documents are required from third parties, such as the police or health services.

To assist the court and the parties, the court usually directs the party making the allegations to prepare a template (called a Scott Schedule) itemising the specific factual issues to be decided by the court. The template is set out in such a way that the responding party is able to comment briefly by stating whether the allegation is agreed or denied, and a separate column is included to record the findings of the court having considered all the evidence. This template enables the court, when subsequently adjudicating onthe substantive issue, to have a clear summary of the findings of fact. The party making the allegations should draft them in such a way that the court can give a yes or no answer on the Scott Schedule.

The aim of the fact-finding hearing is to ensure that the allegations are put and responded to. Both parties have an opportunity to give oral evidence and to cross examine the other party. The burden of proof is on the person making the allegations. The court determines the matter on the balance of probabilities, not on the higher, criminal, standard of beyond reasonable doubt.

Having considered the evidence, the court will make findings of fact. The court will then give directions as to the future conduct of the substantive hearing. This may include directing a report from Cafcass.

Once a fact-finding hearing has taken place, the court must consider the child arrangements in light of their decision. If no findings are made, the courtmust proceed on the basis that the allegations did not happen. If some findings are made, then the court must consider the child arrangements in the light of those findings, and must consider how any risk to the child can be managed.

Fact finding hearings will not therefore be ordered in every case, but can be a very useful tool to provide a template for the court in taking into account proven serious allegations which are likely to impact on the welfare of the child.

 

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