Family law pupils and baby juniors deal with all types of hearing, but perhaps the most formulaic is the fact-finding hearing. This is the family court concept of deciding whether or not a disputed allegation of fact happened on the balance of probabilities. This article sets out a basic guide to preparing for and executing fact-finding hearings in relation to domestic abuse allegations.
Where to start
Mandatory reading starts with Practice Direction 12J which provides the essential background to when, why and how the courts should consider the necessity of a fact-finding hearing (paragraphs 16 and 17 in particular). Assuming that these steps have already occurred, practitioners will arrive at needing to prepare for a hearing that may last hours, a day or several days. A helpful place to start, which is a key source to this guide, is A Practical Guide to Practice Direction 12J and Domestic Abuse In Private Law Children Proceedings by Rebecca Cross & Malvika Jaganmohan.
Position statements should be drafted before fact-findings but kept brief. They should set out the background to the case and the general position of your client, signposting the court to statements, any particularly relevant evidence and Schedules of Allegations. Evidence should not otherwise be commented upon; this is a matter for the hearing. A helpful pointer to consider filing alongside your position statement is a witness template. This can sometimes be agreed with an opponent before being submitted to the court. Templates are an estimation only; advocates are not bound by their timings.
At the hearing
Fact-findings are limited in nature; the court is concerned with the allegations and evidence before them and little else. A conference before a fact-finding should focus on explanation of the structure of the hearing and how the court will make their decision. An important point to bear in mind when speaking to witnesses outside a hearing is that if evidence is being discussed, this should be done individually with each witness.
The Domestic Abuse Act 2021 (“the Act”) sets out the applicable legislation designed to protect victims and witnesses within legal proceedings. Section 63 of the Act deals with special measures in family proceedings in allowing the court to make a direction for special measures with reference to the quality of the victim’s evidence. If not already dealt with in any previous order, special measures should be considered at the fact-finding. Section 65 of the Act sets out the prohibitions on victims being cross-examined by alleged perpetrators. The key considerations under section 65 are whether the alleged perpetrator has been convicted of an offence, if they are subject to an injunction protecting the victim, and if evidence of domestic abuse has been adduced. In addition to this, when opposing a litigant in person (“LiP”) as an alleged perpetrator, be aware of how courts should exercise their right to cross-examination. Refer yourself to any previous order which sets out a measure such as submitting questions in advance for a judge to assess and deliver. Part III of the FPR at 3.435 [4] refers to the case of PS v BP [2019] 1 FLR 760, FD which sets out some key principles in the absence of recognised guidance regarding LiPs in domestic abuse proceedings. In summary, LiPs are entitled to cross-examine their accuser however ground rules hearings may be necessary, the investigative process must be fair to both sides, and the court has discretion to decide how the LiP does conduct their cross-examination.
At the beginning of the hearing, only a short opening is usually required. The order of witnesses can vary however usually the party making the allegations will go first followed by their witnesses (if any), and then by the alleged perpetrator and their witnesses (if any). Witness statements will usually stand as a witness’ evidence in chief. Permission to ask supplemental questions is possible although not guaranteed; any questions should be relevant to the court’s decision. Supplemental questions should not be used to re-write a deficient witness statement. Witnesses (other than the parties) do not need to be available for the length of the hearing after they have given their evidence, and may need or want to be excused.
Points for submissions
Submissions should be targeted with reference to salient evidential points, and conclude with inviting the court to make findings that allegations are either proved or not proved. The burden of proof lies on the party making the allegations. Even if the allegations made are of a very serious nature, that does not alter the standard of proof, which is the balance of probabilities (Re B (Children) (Care Proceedings: Standard of Proof) [2008] 2 FLR 141 HL). The manner in which a witness gives evidence is not relevant; it is the content of their evidence that the court must have regard to (R (On the Application of SS (Sri Lanka)) v The Secretary of State for the Home Department) [2018] EWCA Civ 1391).
Fact-finding hearings are by their very nature factual, however if allegations cover coercive or controlling behaviour or a pattern of behaviour, reference can and should be made to specific case law in support (see Re HN and Ors (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448).
Although criminal law concepts do have some place in family proceedings, case law clearly notes that judges should not apply them in a way which would involve an analysis based solely upon them (Re A (Domestic abuse: incorrect principles applied)) [2021] EWFC B30), nor should criminal language be imported to describe family behaviours (R (Children) [2018] EWCA Civ 198). One relevant involvement of criminal concepts in fact-findings is the Lucas direction (R v Lucas [1981] QB 720). This should be raised if reliance is to be placed on a party having told a lie; the case of Re A, B and C (Children) [2021] EWCA Civ 451 provides helpful guidance on proper practice for this.
Hearing conclusion
The judge or lay bench will consider the evidence before giving judgment. A finding on one allegation does not mean they must make findings on other. Findings must be recorded on face of the order clearly regarding what was proved and not proved. Directions can then made for next steps at the end of a fact-finding hearing, e.g. for a section 7 report and transcript of the judgment. Where domestic abuse has been found to be proved, Part III of the FPR at 2.205[9] makes clear that if the court nonetheless makes a contact order, it must always explain why it takes the view that the order made will not expose the child to the risk of harm and is beneficial for the child.
Links to resources and judgments:
A Practical Guide to Practice Direction 12J and Domestic Abuse In Private Law Children Proceedings by Rebecca Cross & Malvika Jaganmohan: http://www.lawbriefpublishing.com/product/practicedirection12janddomesticabuse/
Domestic Abuse Act 2021: https://www.legislation.gov.uk/ukpga/2021/17/contents/enacted
Re B (Children) (Care Proceedings: Standard of Proof) [2008] 2 FLR 141 HL: https://www.familylawweek.co.uk/site.Aspx?i=ed12688
R (On the Application of SS (Sri Lanka)) v The Secretary of State for the Home Department) [2018] EWCA Civ 1391: https://www.bailii.org/ew/cases/EWCA/Civ/2018/1391.html
Re HN and Ors (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448: https://www.bailii.org/ew/cases/EWCA/Civ/2021/448.html
Re A (Domestic abuse: incorrect principles applied)) [2021] EWFC B30: https://www.bailii.org/ew/cases/EWFC/OJ/2021/B30.html
R (Children) [2018] EWCA Civ 198): https://www.familylawweek.co.uk/site.aspx?i=ed188235
R v Lucas [1981] QB 720
Re A, B and C (Children) [2021] EWCA Civ 451: https://www.judiciary.uk/judgments/a-b-and-c-children/
