Fact-Finding Hearings In Private Children Proceedings

A “fact-finding hearing” (FFH) is the first limb of a split hearing, which is a hearing divided into two parts. In the first half, the Court makes findings of facts on issues identified by the parties or the Court and recorded in a Scott Schedule. During the second part, the Court decides the case based on the findings.

When is a fact-finding hearing held?

An FFH is not always necessary. Practice Direction 12J of the Family Procedure Rules 2010 contains detailed guidance on determining whether it is necessary to conduct a fact-finding hearing with respect to allegations of domestic abuse.

The Practice Direction has been tested and clarified in two noteworthy cases, starting with H-N (2021) EWCA Civ 448, which was a Court of Appeal decision.

The latest case on the subject is K and K (2022 EWCA Civ 468) which came before the Court of Appeal on 2 March 2022 before, amongst others, Sir Andrew McFarlane, President of the Family Division.

The basic facts were that the father and mother married in 2005 and separated in August 2017. There were three children, a girl aged 12 and twins (boy and girl) aged 9. The father had regular, unsupervised contact with all three children before difficulties arose. He issued a C100 in 2019 complaining of parental alienation and seeking a child arrangements order. His application was filed in December and he used the urgency of Christmas arrangements to claim an exemption from attending the mediation information and assessment meeting (‘MIAM’).

The mother then filed a C1A form which made several relatively minor allegations against the father and she did not object to unsupervised time with the children. However, when she later spoke to the safeguarding Cafcass officer she alleged rape and, Cafcass advised the Court to consider a fact-finding hearing.

The main focus of K and K was to give general guidance on the correct approach to FFHs whilst endorsing the earlier case of H-N.

Summary of the Court of Appeal’s approach:

1. Parties will be criticised if they do not attend MIAM appointments.
2. The FHDRA (first hearing dispute resolution) is meant to be an opportunity to consider dispute resolution as the name suggests.
3. The Court must ascertain at the earliest opportunity whether domestic abuse (in all its forms) is raised as an issue which is likely to be relevant to the welfare of the child/child arrangements. Fact-finding hearings will only be needed if it is.
4. The finding that the father raped the mother during the marriage was unsafe and the judge had failed to consider all the evidence in the round.
5. The judge should have focused on the allegations that most fundamentally affected future child arrangements, namely whether the father was demonstrating coercive and controlling behaviour which affected the children’s welfare.
6. Whilst some inappropriate behaviour was made out, the generalised allegation of coercive and controlling behaviour was not, particularly financial control.
7. The appeal was then allowed and the case sent back to a circuit judge for a decision as to whether a fresh FFH hearing was required based on the principles of K and K and H-N.

The protection or welfare of a child

In accordance with H-N, it was emphasised that a fact-finding hearing would not necessarily be required, even where domestic abuse was alleged. It was critical to identify at the earliest possible stage the real issue in the case and how any conduct would impact on the welfare of a child.

The very clear approach was based on FFHs being a major judicial determination which inevitably introduces delay, postpones any interim determination and is likely to be prejudicial to a child’s welfare as well as to the future relationship of the parents.

“All judges hearing children cases will know that there will almost inevitably be emotional fall out following the separation of adults who have been in a close relation­ship. Whilst the Court will not hesitate to adjudicate upon parental behaviour where this impacts upon the protection or welfare of a child, it is not for the Court to hear about, much less to resolve, issues between the parents relating to their time together, unless to do so is likely to be necessary for, and proportionate to, the resolution of a dispute relating to the protection or welfare of a child.”