What happens in a Family Court fact-finding hearing?

What is a fact-finding hearing?

A fact-finding hearing is a tool which the Family Court uses to make findings in relation to any disputed allegation of domestic abuse. As the Court of Appeal said in Re A (No. 2) (Children: Findings of Fact) [2019] EWCA Civ 1947, the questions for a judge in a fact-finding hearing are, in no set order: what, when, where, who, how and why?  

What is the significance of the findings?

Once findings are made, they are taken into account by CAFCASS in making its recommendations to the Family Court and by the latter in its final decision.

For an overview of how fact-finding hearings fit generally into child contact proceedings in the Family Court, see our separate article: Child contact applications: a quick overview.

How should allegations be presented?

The allegations of domestic abuse must be set out by the party making the allegations (“the complainant”) in a document called a Scott Schedule.

The format of the Scott Schedule requires the complainant to itemise the allegations by reference to dates and particular events. Vague allegations such as “the other party was rude to me on several occasions” are likely to be removed from the Scott Schedule by the Family Court before the final hearing. Similarly, incidents dating many years back that have no bearing on the issue of child contact may be removed before the final hearing.

As the Supreme Court held in Re S (A Child) [2015] UKSC 20, the Family Court is technically not bound by a Scott Schedule and may therefore reach findings on facts not contained therein.  The Family Court must, however, have a good reason and solid evidential basis for departing from a Scott Schedule. In any event, procedural fairness must be maintained in that the person against whom an adverse finding might be made must know the nature of the allegation and the substance of the supporting evidence and have a reasonable opportunity to respond.

The hearing

Preparation is key. Parties usually prepare witness statements (witness evidence) setting out their allegations or responses thereto. Witness statements should be clear, concise and factual, meaning they should relay facts, not arguments, insults or value judgements.

There is no requirement technically that corroborating (supporting) documentary evidence be submitted, however, it is obvious that an assertion made in a witness statement that is corroborated is more likely to be believed than one which is uncorroborated. 

How a witness (whether a party themselves on their own behalf, or a witness speaking on behalf of a party) comes across during questioning (see examination-in-chief and cross-examination) is important. The hard work put into the preparation of Scott Schedules and obtaining evidence can be spoiled if a witness speaks poorly when in the witness box. A witness should be direct in their responses to questions asked of them by the judge, their own legal representative, or the opposing legal representative. Judges usually view favourably, those witnesses who answer questions directly and clearly; those who don’t can be perceived as evasive and therefore unreliable or untruthful.

If an allegation is clearly evidenced, it may be advisable for the allegedly “guilty” party to reflect and accept their wrongdoing. For example, if a complainant alleges that the respondent sent them an inappropriate text message on a certain date, and an authentic screenshot of that text message has been produced which corroborates the allegation, then the Respondent would be well-advised to accept the allegation. In this example, denial of guilt in the face of overwhelming evidence would be likely to lead the Family Court judge to conclude that the respondent was unable to accept responsibility for their actions and was therefore unable to recognise the negative impact of their actions on others, including children.

About us

For help with Family Court fact-finding hearings, contact our family law barristers. We are Milton Keynes family lawyers who can help with any aspect of family disputes, such as child arrangements, divorce, and financial remedy hearings. We are able to travel to all parts of England and Wales to help clients.


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