What is a fact-finding hearing?
Fact-Finding Hearings are essentially a ‘mini-trial’ in the case. The Court must consider the allegations (and evidence in support) by one, or both, parties. The allegations are put to the court, to decide whether, in their view, the incidents did or did not happen.
The standard of proof is ‘on the balance of probabilities’ which means that the court needs to be 51% sure that an allegation took place, in order to make a finding of fact.
Having a fact-finding hearing isn’t appropriate in every matter – not even every matter where a party is making allegations of bad behaviour.
A fact-finding hearing can be counter-productive and worsen an already fraught relationship, however, it can also be necessary in order to get an accurate assessment of risk and provide a factual basis for assessing welfare factors. The recent case of K v K [2022] provided guidance on when to have a fact-finding hearing. This case set down that the allegations needed to have a direct impact on the child’s welfare to necessitate a fact-finding hearing. It was not appropriate to have a fact-finding hearing just because one party had behaved badly or been abusive in a marital relationship/towards their partner.
The Judge only needs to decide on the allegations to the extent that they are relevant to determine issues relating to a child’s future welfare, which is the paramount concern of the court.
Before the hearing, the party making the allegations will need to summarise the allegations in a schedule, and file a narrative witness statement in support of that schedule.
They also have to provide any other evidence they seek to rely on (e.g. text messages between the parties or emails). The other party will have the opportunity to provide their response to the schedule, the statement and any other evidence that has been provided.
After this schedule has been submitted, the party whom the allegations are directed towards will be asked to respond in writing to the allegations within a set time frame. The other party will need to provide their own narrative statement which sets out their version of events and any evidence that they have to refute the other party’s claims.
Witness statements in support of the schedules essentially lay out what the party wishes to say about the matter – and they are likely to be cross-examined on that evidence at the hearing. There is also the possibility of having a third-party witness to also give a statement to corroborate one of the party’s version of events.
The hearing will start with the party making the allegations (or their legal representation) giving an opening statement to summarise their case to the Court. The party responding to the allegations (or their legal representation) will then make their own opening statement.
At the hearing, first the party making the allegations gives oral evidence. Then the party responding to the allegations will give oral evidence, along with any other witnesses that have been given permission by the court to give evidence.
Giving oral evidence involves taking the witness stand and taking an oath or affirmation to confirm that everything they say is true. The party giving the oral evidence is then questioned on the contents of their written statement(s) that they have previously filed at court. In this, the Judge will listen to the evidence given and may also ask their own questions to grasp the situation fully and ensure the allegation is investigated fully.
At the end of the fact-finding hearing, the Judge will make a decision on each of the allegations raised, which is recorded in their judgment.
They will often draft a schedule with the findings found and not found. This is important so that CAFCASS and any other professionals in the case can ascertain the findings of fact quickly, and make judgments about what should happen in the case, based on what “happened” in the past.
The Judge will also have to take findings of fact into account when making decisions in the case going forwards. However, if they’re found to be false or that there was not enough evidence to prove the allegation, then the judge’s decision will be based on the allegations not being true.
Giving evidence can be uncomfortable, difficult and emotional, so remember to take your time and don’t be afraid to ask for a question to be clarified if you don’t understand.
Please be aware that your legal representative is unable to coach or guide you or your witnesses on the evidence you or your witnesses are to give. However, there are some general principles and steps worth considering in advance:
Read and re-read your statement: Whilst giving evidence is not a memory test, and it is okay to not always have an answer to a question, it is helpful to re-read your statement(s) several times before the hearing so that you are familiar with its contents as that will form the basis of your evidence and what you will be asked questions on.
Remember why you are giving evidence: Oral evidence is about getting information to the Judge in the simplest way possible, so they can then consider the evidence to help them in their decision making about the case.
Take your time and ask for clarification: It is ok to take your time and think about the answer you will give to a question. If you do not understand the question, you can ask for it to be clarified or ask to be shown the page of the Court bundle which is being referred to. Whilst asking for help is acceptable, you should avoid asking why you are being asked something.
Keep it short: Sometimes ‘yes’ and ‘no’ answers are adequate. When a longer answer is appropriate, then it is important to remain focused and to stick to answering the question you have been asked. Any inconsistencies in your evidence may lead to the Judge drawing adverse inferences about your evidence.
Direct your response to the Judge: Cross-examination is often extremely measured and polite, however it is natural to feel riled and upset by the questions being asked. It is important to remain calm, it can be helpful to direct your response to the Judge, rather than to the person asking the questions. The evidence is ultimately for the Judge hearing the case and it will therefore assist them for your responses to be both clear and slow.
What to wear: Regardless of whether your hearing is in person or via video link, dress smartly.
Food and drink: Ensure you eat well and are hydrated. There should be water available for you on the witness stand if you need a drink during giving evidence. Court hearings can be long and breaks can be brief. It can help to have some snacks and water with you on the day so you can grab something quickly during breaks.
You will not be allowed to speak with anyone about your case until your evidence has finished: for example, if Court were to adjourn for lunch or overnight once you have started giving evidence you will not be allowed to speak with anyone about the case until you have finished giving your evidence. This will include your legal representative(s) and family members. Make sure you are therefore prepared and have asked any questions you might have in advance.
Seek early help: Whether it be from family members or a therapist, it is important to talk about any concerns or worries you may have in good time before the hearing. You can also ask the court for permission to visit the courtroom in advance, if you are particularly nervous.
Our team of expert Family lawyers understand that fact-finding hearing can be difficult and emotional, our specialists will support you every step of the way. Please contact us to discuss your individual situation.
Sophie Reynish is a Paralegal in our Brighton Office.