Family Court Fact Finding Hearings: a Guide

Allegations of domestic abuse are very common in family court hearings involving children. Where a parent in family court proceedings makes such allegations and the other parent denies them, then the family court often holds a fact‑finding hearing to establish the truth.

If you are facing allegations of domestic abuse, then it is essential to treat them seriously, even if you firmly believe they are untrue. This is because, if the Family Court finds the allegations to be proved, then it will, for the rest of the proceedings, act as though the abuse happened – this will influence  the court’s ultimate decision on whether you should have contact with your child.

This guide provides an overview of fact-finding hearings, including what they involve, how to prepare, what to expect in court, and how a direct access barrister can help you maximise your chances of success.

1. What counts as domestic abuse?

A full definition of domestic abuse is contained the Family Procedure Rules Practice Direction 12J. The definition includes physical, sexual, psychological and economic abuse, as well as controlling behaviour.

Allegations of domestic abuse have increased significantly in recent years because the definition of domestic abuse has become broader. Most people understand what physical abuse is, however, emotional and psychological abuse, as well as coercive and controlling behaviour, are relatively modern concepts. As the concepts have evolved, the volume of allegations in the family court system has also increased.

It follows that someone accused of domestic abuse can find themselves faced with a wide range of different allegations. Clients often remark that they feel the other parent has “thrown everything they can think of” at them. This can feel overwhelming and difficult to respond to without professional support.

2. What Is a Fact Finding Hearing?

A fact-finding hearing aims to determine whether specific allegations are true. Although it is not technically a criminal trial, the process often feels similar because the sole focus is on establishing whether the alleged incidents occurred.

Fact-finding hearings usually take place about midway through the family court process, i.e., after the first hearing (known as the First Hearing Dispute Resolution Appointment or “FHDRA”), but before the final hearing. For a general overview of the family court process in children matters, see our article Navigating Child Contact Disputes: A short guide .

In Re B-B (Domestic Abuse: Fact-Finding) [2022] EWHC 108 (Fam), the High Court (a senior court) set out a number of principles for family court judges to follow in fact-finding hearing. These principles were said to include the following: 

• the burden of proof lies with the person making the allegation
• the court must be vigilant to the possibility of one parent seeking an advantage over the other
• the standard of proof is the balance of probabilities
• the court must consider all available evidence and form an overview of the totality of the evidence
• the evidence of the parties themselves is of utmost importance
• witnesses may lie for various reasons, and the court must be careful in assessing their credibility. The fact that someone lies about one thing does not necessarily mean they are lying about other things.
• the function of resolving disputes of fact in the family court is different from the role of the judge and jury in the Crown Court in that the primary purpose of the family process is to determine what has happened in the past to inform the ultimate welfare evaluation
• the court must follow the principles and guidance at Practice Direction 12J of the Family Procedure Rules 2010
• where coercive and controlling behaviour is alleged, the court must focus on any patterns of behaviour
• not all directive, assertive, stubborn, or selfish behaviour will be considered ‘abuse’

These principles show that the court is not simply choosing who it believes more; instead, it is conducting a structured analysis of all the evidence to decide, on the balance of probabilities, whether the alleged abuse occurred. The outcome will form the factual foundation for the rest of the case and is likely to influence the court’s final decision about whether you should have contact with your child.

3. Is a fact-finding hearing always needed?

In technical legal terms, the Family Procedure Rules Practice Direction 12J states that the court should order a fact-finding hearing when it deems that this is “necessary”.

The court is likely to decide that a fact‑finding hearing is necessary  when:

1. serious allegations of domestic abuse are made but denied; and
2. the allegations are likely to have a material impact on the final decision about who the child should live or spend time with.

It follows that allegations which are either admitted, not serious or unlikely to have a material impact on the final decision, are not heard at a fact-finding hearing.

In practical terms, the matter often comes down to overnight stays. If the resident parent (i.e., the parent with whom the child is living), despite their allegations, agrees to the child spending time overnight with the non-resident parent, then the court is unlikely to decide that a fact-finding hearing is necessary. If the non-resident parent does not agree to any contact or any overnight contact based on their allegations, then the court is likely to decide that a fact-finding hearing is necessary.

4. When does the court decide whether to have a fact-finding hearing

Once a parent applies for contact, the other parent can raise domestic abuse allegations using Form C1A. The set out each allegation in outline, so that both parties – and the court – know what the allegations are.

At the first hearing (the FHDRA), if the court deems a fact-finding hearing necessary, it will order the following:

• the party making the allegations must submit a Schedule of Allegations, listing each incident with dates and supporting evidence.
• the responding party must submit a detailed response to each allegation.
• both parties must also submit witness statements, narrating their version of events and attaching supporting evidence (e.g., texts, emails, photos, and videos); these items of supporting evidence are known as “exhibits”).

The hearing is then adjourned for several weeks or months to allow both parties to prepare their documents. This phase of the proceedings, when the parties have the opportunity to write out their account and collect the supporting evidence, is crucial because a providing a clear and detailed statement and exhibits will help to maximise your chances of success.

5. What Happens at the fact-finding Hearing?

• A typical fact-finding hearing follows this structure:
• Preliminary matters/housekeeping: at the outset of the hearing, the judge will speak to both parties’ barristers and clarify any outstanding issues such as late evidence or missing documents. After this, the evidence part of the hearing begins.
• Evidence (“Examination-in-chief”): the evidence part of the hearing begins with the complainant (the party making all or most of the allegations) presenting their evidence. This is known as “examination-in-chief” and is usually brief because it simply involves the barrister asking their client to confirm whether the content of their pre-written witness statement is true.
• Questioning (“Cross-examination”) examination-in-chief is followed by cross-examination. This is when a party is questioned by the opposing party’s barrister. In reality, cross-examination is much more measured than how it’s shown in TV courtroom dramas, however, it’s certainly not a chat over coffee either and it can be very intense.
• Evidence/Questioning reverses: after the complainant has finished giving their evidence, the questioning process is repeated for the party responding to the allegations. The bulk of the hearing is usually taken up by the cross-examination process; it is common for this process to take a few hours or even days.
• Judges’ questions: Judges may ask both parties questions at any time during their evidence.
• Closing submissions (also known as speeches): after the evidence has concluded, the parties’ barristers will each make submissions in which they highlight the strength of their client’s evidence and point out the weaknesses in the opposing party’s evidence.
• Judgment: at the end of the hearing, the judge will either: take some time to consider the matter and then give a judgment or adjourn the matter for judgment to be given on a later date. Judgments are usually given verbally but are sometimes given in writing. Binary system: the Family Court follows a “binary system” when deciding whether alleged incidents of domestic abuse happened. This means that the court must decide that each alleged incident either happened or did not happen; there is no “middle ground” or option for concluding that something might have happened.
• After judgment: after judgment, the judge will usually order that the court’s findings be relayed to Cafcass to enable the latter to produce a welfare report. The proceedings are usually adjourned to allow this to happen.
• Interim contact: if the findings are favourable to the party responding to the allegations (i.e., the court decides that they didn’t do most or all of what is alleged), then the court is likely to consider any application for interim contact (i.e., a set of temporary contact arrangements pending  conclusion of the case) between the responding parent and the child favourably.

6. How a direct access barrister can help

Instructing a direct access barrister allows you to access legal expertise without needing to go through a solicitor. This means that you can, from an early stage, work directly with the person who will be representing you in court.  

• As a specialist advocate, a direct access barrister:
  • can provide strategic advice from the outset of your case
  • can draft documents effectively, including: responses to schedules of allegations; witness statements; and position statements.
  • is skilled in both court room advocacy, i.e., in cross-examination and closing submissions. Barristers’ natural habitat is the courtroom. Having a barrister means that you have an expert fighting to defend your position in the court room.
  • gives you access to the barrister’s expertise, but cost effectively and flexibly. You can instruct a direct access barrister just for the fact-finding hearing. If you wish, then you can also instruct them for “bolt-on” work such as drafting witness statements or responses to schedules of allegations. The point is that you can control your legal expenses budget much more than if you work with a solicitor, which can help you to reduce your overall legal costs.

7. Get Expert Help

You don’t have to face the family court fact-finding process alone. Demstone Chambers are direct access barristers specialising in family law, including fact-finding hearings.

We are based in Milton Keynes but our barristers can help clients in all parts of England and Wales.

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