Allegations of domestic abuse in family cases are common. The Crime Survey for England and Wales (CSEW) estimated that approximately 1 in 5 adults aged 16 years and over had experienced domestic in the year ending March 2022.
Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent or live in a home in which domestic abuse is perpetrated.
In the case of Re H-N  EWCA Civ 448, it is cited that it is thought that 40% of private law children cases involve allegations of domestic abuse.
Practice Direction 12J of the Family Procedure Rules sets out what the family court is required to do in any case relating to arrangements for children where domestic abuse is alleged or admitted.
Definition of domestic abuse
The Domestic Abuse Act 2021 created a statutory definition of domestic abuse.
The behaviour of a person towards another person is domestic abuse if:
- Both parties are aged 16 or over and are personally connected to each other and
- The behaviour is abusive
Behaviour is abusive if it consists of any of the following: –
- Physical or sexual abuse
- Violent or threatening behaviour
- Controlling or coercive behaviour
- Psychological, emotional, or other abuse
- Economic abuse including behaviour that has a substantial adverse effect on that person’s ability to:
acquire, use or maintain money or other property or
obtain goods or services
The behaviour can consist of a single incident or course of conduct.
What is a fact finding hearing?
This is a separate hearing where the court will consider any disputed allegations of domestic abuse.
Is a fact finding hearing necessary?
Where there are disputed allegations of domestic abuse, the court should consider at the earliest opportunity whether a fact finding hearing is necessary to resolve those issues.
A fact finding hearing will not be necessary in every case. There needs to be an allegation or a number of allegations in relation to domestic abuse and findings in relation to those allegations would need to be relevant to the decision the court has to make when determining what is in a child’s best interest.
It may be the findings would be of no assistance to the court if there has been a partial acceptance of the allegations, the allegations are historic or the allegations are very minor.
The court must consider at the earliest opportunity whether a fact finding hearing is necessary within the court proceedings. The court should consider the factors that are set out in the Family Procedure Rules 2010 practice direction 12 J including: –
- The nature of the allegations and the extent to which those allegations are likely to be relevant to the making of a child arrangements order.
- That the purpose of a fact finding is to allow assessment of the future risk to the child and the impact of any abuse on the child.
- whether fact-finding is necessary or whether other evidence will suffice.
- whether fact-finding is proportionate.
It is for the court to determine if a fact-finding hearing is necessary, but the court will take into consideration the views of the parties and of the Children Family Court Advisory and Support Service (Cafcass).
If the court determines that a fact finding is not necessary, it must record this on the court order with reasons for the decision.
If a court determines that a fact finding hearing is necessary, it must manage the case to determine the specific allegations to be tried and will consider: –
- Directing the parties to file written statements of the allegations raised and of any response to clearly identify the issues for determination.
- Whether evidence is required from third parties such as police or health services
- Whether any other evidence is required to enable to court to make findings of fact
What happens at a fact finding hearing?
The parent making the allegation will usually give evidence first and will be cross examined, followed by any witnesses they have and then the alleged perpetrator and their witnesses will follow.
The court will determine if it is more likely than not that the event occurred. The test that the family court applies is the balance of probabilities test and the burden of proof lies on the party making the allegations.
The decision of the court will provide guidance for how professionals should approach any further assessments.
The judge will consider the evidence before giving a judgment.
What happens after a fact finding hearing?
Once the hearing has taken place the court will look at the issue of child arrangements in light of the findings made. If no findings are made the court must proceed on the basis that the allegations did not happen.
If findings are made on some or all the allegations, the court must consider the child arrangements and any potential risk posed to the child or the parent with whom the child lives and how the risk can be managed or minimised.
The Court will consider whether it will be assisted by any further report or assessments. The Court will consider if it is necessary to direct a Section 7 report to be prepared.
The Court will also consider whether any party should seek advice or undertake any further work before any child arrangements can be considered.
If no findings are made the court must proceed on the basis that the allegations did not happen.
You may find this article useful ‘Help For Victims of Domestic Abuse In The Family Courts’.
If you are experiencing domestic abuse, you can contact Refuge freephone 24 hour domestic abuse helpline on 0808 2000 247 Home | Refuge National Domestic Abuse Helpline (nationaldahelpline.org.uk)