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What is a fact-finding hearing?

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When parents make an application to court under the Children Act 1989 for an order relating to their children there may be mention of a “fact finding” hearing. Sometimes this type of hearing is referred to as a “finding of fact” hearing. Often a family judge will mention a fact finding hearing without explaining what he or she means by that and the importance of this type of hearing.

The top London family law solicitors advise that fact finding and finding of fact hearings are the same thing. This type of court hearing is held where a fact or facts are disputed between parents and the family judge thinks that deciding on the truth of the facts is essential before the court can make a decision about what is in a child’s best interests in connection with the parent’s Children Act court application.

The best London family law solicitors will tell you that it is very common for parents to disagree on the facts leading to a separation or surrounding a particular incident. However, that does not necessarily mean that there needs to be a fact-finding hearing. It is the job of the family law judge to consider whether the disputed fact goes to the “heart” of the children law case.

How can OTS Solicitors help?

The family law team at OTS Solicitors advise on all aspects of family and children law. OTS Solicitors represent parents in high conflict children cases where finding of fact hearings are required.

For tenacious representation in your children law court application or for more information about your children law options please get in touch with us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London children and family law solicitors.

Allegations and fact-finding hearings

The best London divorce solicitors are asked what sort of parental dispute over an incident justifies the holding of a fact-finding hearing. The decision on whether to have a fact-finding hearing is down to the family judge hearing the children case.

A judge will look at the disputed fact and the nature and type of Children Act application. An allegation that a parent assaulted the other parent and the children during the relationship , with the facts being disputed with one parent adamant and the other making a complete denial may be the sort of factual dispute that would justify a fact finding hearing .

In that scenario, until the judge decides on the disputed fact of whether the assaults on the parent and children took place or not, the CAFCASS officer cannot express a professional opinion on the welfare needs of the children or, for example, what level of contact would meet their emotional needs whist ensuring their physical safety.

Fact-finding hearings and CAFCASS reports

Sometimes a family judge will say that although the court will have to decide if a disputed fact is true or false and make a ruling on it, the court at the same hearing can make a decision on what Children Act orders will meet the children’s needs and are in their best interests.  Parents question how a CAFCASS officer can report on what is in a child’s best interests if the facts are hotly disputed. The role of a CAFCASS officer is to assess the children’s wishes and feelings and advise the court on child welfare considerations.

If facts are disputed, a CAFCASS officer should not base their assessment of the children’s needs based on their own judgement of the disputed facts. Instead, they will often say it is for the court to determine disputed facts but if the court rules that A  happened their opinion is X, and if the court rules that B happened, their opinion is Y.

For CAFCASS officials it can be clearer to work with a judge’s decision on the factual matrix of a case, rather than having to make an assessment whilst facts are disputed. However, judges are often reluctant to order a separate fact-finding hearing as this can build in delay, as parents have to wait for the fact-finding hearing, and then have to wait for the CAFCASS report to be prepared before a separate welfare hearing is held when the judge decides what Children Act orders to make.

Importance of a fact-finding hearing and judgment

The best London divorce solicitors find that many parents do not appreciate the significance of a judge making a finding of fact against them in a judgment.

If a judge makes a finding that, a parent assaulted the other parent or the child then that finding of fact is what all the future court decisions will be based on, whether or not the parent accused of carrying out the assaults accepts the court finding. Equally, if a court finds that a parent made false allegations and that the assaults were made up to try to stop contact or for vindictiveness, the court could find that this was emotionally damaging to the children.

Furthermore, if the parent goes on to have more children with a new partner it is possible for the old finding of fact, with court permission, to be used in any subsequent court proceedings concerning children from a new relationship .

Overturning a finding of fact

It is very difficult to overturn the findings of a court. The top London divorce solicitors advise that the route to overturning a finding against a parent is to appeal against the court decision. As appeals are expensive and take time to resolve it is vital that parents understand just how important it is to have good legal representation at the fact-finding hearing so their case is put as strongly as possible.

The case of M v F (Appeal: Fact Finding) [2019] EWHC 572 (Fam) demonstrates just how difficult it is to appeal against a decision to make finding of facts against a party to court proceedings. The mother made allegations of violence against the father, as well as asserting that he had used controlling and coercive behaviour, and used force against the child. The father denied the allegations.

A fact-finding hearing took place and the court did not find the allegations against the father were proved and concluded that the father did not pose a direct risk of physical harm to the child, or a psychological risk to the mother. The mother did not agree with the court findings and applied for permission to appeal against the findings.

The mother’s application went to the High Court. The judge said:

  • Permission to appeal should only be granted where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard;
  • If there is no identifiable error, such as an error of law, or a demonstrable misunderstanding of the evidence, or a demonstrable failure to consider relevant evidence then an appeal court will intervene with the findings of fact made by the first judge if the appeal court is satisfied that the first court’s decision cannot reasonably be explained or justified;
  • Where the trial judge did not misdirect himself or herself, an appeal court should not come to a different view on the fact-finding to the first judge unless the appeal court is satisfied that although it has not seen and heard witnesses, the trial judge hearing from witnesses is not sufficient to explain or justify the trial judge’s findings of fact. In essence, it does not matter if the judge hearing the appeal may have made different findings: the appeal court should only interfere with the original findings if they cannot reasonably be explained or justified.

According it there is a difficult and high standard to secure permission to appeal after a fact-finding hearing. That is why the top London divorce solicitors emphasise that legal advice and preparation for the fact-finding hearing is so essential.

How can OTS Solicitors help?

OTS Solicitors advise on all aspects of family and children law and have particular experience in representing parents in complex and high conflict applications for child arrangements orders and international children law cases.

OTS Solicitors provide specialist divorce, family and children law advice especially where there are children law and international elements. For advice on children law or representation in children court proceedings please get in touch with us on 0203 959 9123 to arrange an appointment to speak to one of our experienced family and children solicitors.

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