It is common for there to be factual disputes between the parties during the course of private children proceedings. Often these may revolve around allegations of drug or alcohol addiction, domestic violence or physical and emotional harm against the children themselves by one party. The court must consider if these allegations and disputes are central to its role in considering the welfare of the child in light of the application before it, or if these satellite allegations will have little impact on the overall outcome of the application. If the court deem that the allegations warrant investigation, they will seek to hold a fact finding hearing at the earliest opportunity in proceedings. Holding such a hearing is the court’s sole decision and will not be granted simply because a party to proceedings or CAFCASS wish to hold one. The court is reluctant to hold a fact finding hearing in all but the most serious of cases, given the associated costs and delays such hearings can create.
The court will consider a variety of factors when determining whether to hold a fact finding hearing, including the availability of evidence, the relevance of the allegations to the application before the court and the proportionality of the fact finding in all the circumstances.
When a fact finding hearing has been ordered by the court, further directions will be provided on the nature of the evidence in dispute, how that is to be addressed and considered by the parties (often using a Scott Schedule). It is essential that parties immediately begin work on a detailed witness statement in support of their position at this stage.
During the fact finding hearing itself, the allegations will be put to the relevant party, who will also have the opportunity to respond. Through their oral evidence and cross-examination. The burden of proof is on the person making the allegations to prove their case, whilst the allegations are considered by the court on the “balance of probabilities”.
Once a fact finding hearing has been completed, the court will then look to consider the application before in, in light of any findings made. If the allegations are not proven to the court’s satisfaction, the application before the court will be made on the assumption the allegations did not occur. Where some allegations are proven, the court will consider how they impact on the application before it and how those matters can be minimised or managed in the future.
Given the potential importance that findings can have on an application for a child arrangements order, getting the right legal support to help you is crucial. Ensuring you are complying with court directions to maximise the strength of your case will be central to ensure the fact finding results in a positive outcome for you. Contact us on 01234 889777 and speak to one of our specialist family solicitors today about how we can help you.