The President’s Guidance in relation to split hearings issued in May 2010 stated that split hearings “…are taking place when they need not do so and are taking up a disproportionate amount of the Court’s time and resources..”.
Court time and resources have, if anything, become even more scarce today in 2016 so how can Judges and practitioners ensure that the, sometimes difficult, balance is struck between unnecessary finding of fact hearings and an outcome that is fair to all and reflective of risks to either the parties or their children?
Practice Direction 12J – Child Arrangements & Contact Order: Domestic Violence and Harm “incorporates and supercedes” the May 2010 President’s Guidance in Relation to Split Hearings. It was issued on 22nd April 2014 and sets out “what the Family Court should do in any case in which it is alleged or admitted or there is other reason to believe that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse”.
There are 3 paragraphs that are particularly helpful when looking at cases of this kind:
Paragraph 6 of the Practice Direction makes it clear that the court must, at all stages of the proceedings and in particular at the FHDRA, consider whether domestic violence is raised as an issue and if so must:-
- identify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
- consider the nature of any allegation, admission or evidence of domestic violence or abuse, and the extent to which it would be likely to be relevant to deciding whether to make a child arrangements order and, if so, in what terms;
- give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
- ensure that where violence or abuse is admitted or proven that any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living and does not expose them to the risk of further harm. In particular the court must be satisfied that any contact ordered with a parent who has perpetrated violence or abuse is safe and in the best interests of the child; and
- ensure that any interim child arrangements order (ie. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25-27
Paragraph 17 sets out the factors that the court should consider when determining whether it is necessary to conduct a fact-finding hearing, namely:
- the views of the parties and of CAFCASS
- whether there are admissions by a party which provide a 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 factual basis on which to proceed;
- whether the factors set out in paragraph 36 and 37 can be determined without a fact-finding hearing;
- the nature of the evidence required to resolve disputed allegations;
- whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and
- whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case
Paragraph 19 provides that “where the court considers that a fact-finding hearing is necessary, it must give directions as to how the proceedings are to be conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties.”
Before listing a fact finding hearing there are a number of things that the court should consider including:
- what are the key facts in dispute;
- whether it is necessary for the fact-finding to take place at a separate (and earlier) hearing than the welfare hearing;
- whether the key facts in dispute can be contained in a Scott schedule or a table and whether it is practicable for this schedule to be completed at the first hearing with the assistance of the judge;
- what evidence is required in order to determine the existence of a pattern of coercive, controlling or threatening behaviour, violence or abuse;
- directing the parties to file written statements giving details of such behaviour and of any response;
- whether documents are required from third parties such as the police or health services and giving directions for those documents to be obtained;
- whether oral evidence may be required from third parties and if so, giving directions for the filing of written statements from such third parties;
- whether any other evidence is required to enable the court to decide the key issues and giving directions for that evidence to be provided;
- what evidence the alleged victim of violence is able to give and what support the alleged victim may require at the fact-finding hearing in order to give that evidence;
- what support the alleged perpetrator may need in order to have a reasonable opportunity to challenge the evidence; and
- whether a pre-hearing review would be useful prior to the fact-finding hearing to ensure directions have been complied with and all the required evidence is available
Where a court determines that a finding of fact hearing is not necessary the practice direction requires that the order shall record the reasons for that decision.
I was recently instructed to represent a mother on a case where a two-day fact finding had been listed. The father was not having contact with the child as the mother sought to rely on her allegations of serious domestic violence and alcohol / drug misuse on the part of the father to justify her assertion that he would pose a risk to the child if any contact were to take place.
Unfortunately there had not been judicial continuity over the course of the proceedings. The representatives and Deputy District Judge in attendance on the day of the FHDRA correctly identified that safeguarding issues had been raised by the CAFCASS and mother and that the issues raised were of a nature and seriousness that meant that they were likely to impact on any assessment of risk and/or any final welfare-based orders in relation to child arrangements.
Directions were given at that FHDRA hearing which provided for a Scott schedule of allegations, evidence from the parties, police disclosure and hair strand testing.
Difficulties arose however as there had been no provision made for any further judicial input between the date of the FHDRA and the date of the hearing some three months later. What this meant was that prior to arriving at court for the two-day fixture there had been no judicial scrutiny of the findings being sought nor of the evidence that had been obtained from other sources to include police evidence.
The District Judge at the fact finding hearing embarked upon a fairly rigorous case-management exercise on the morning of the first day which resulted in the parties being able to significantly narrow the evidence that needed to be heard by the court and to conclude the hearing in just one day. Had there been a pre-hearing review listed before the trial Judge this exercise could have been carried out at that juncture and court-time made available for other matters to be listed.
There is no doubt that these can be difficult cases to manage and in an era where both parties are probably having to fund the proceedings privately there are often other competing considerations informing their decision-making process. It is crucial therefore that the Court retains control over the questions of whether a fact-finding hearing is necessary, the scope of that hearing and what evidence is going to most assist the court.
In the case in point, having reduced the court hearing time to just one day, the parties were able to afford the instruction of an expert psychologist whose report, it is hoped, will provide a platform upon which the child concerned will be able to build a safe relationship with both parents. It is clear that the court resources referred to in 2010 are not the only resources that can be better-utilised if careful and timeous consideration is given to the Practice Direction by all those involved in the case.