Allegations and Fact-Finding Hearings

What a Fact-Finding Hearing Is

A fact-finding hearing is a hearing at which the family court decides whether disputed allegations are true before it decides the arrangements for a child. It usually arises in an application for a child arrangements order where one parent alleges abuse or harm and the other denies it. Practice Direction 12J of the Family Procedure Rules governs when a hearing is held and how; the court does not hold one in every case.

The practice direction adopts the Domestic Abuse Act 2021 definition: physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, and psychological, emotional or other abuse between personally connected people aged 16 or over. Harm includes impairment from seeing or hearing the ill-treatment of another, and a child who sees, hears or experiences the effects of abuse of a parent is a victim of it.

The Court of Appeal in Re H-N [2021] EWCA Civ 448 explained that the family court decides these allegations under the ordinary civil law: the parent who makes an allegation must prove it on the balance of probabilities, meaning more likely than not, and each allegation is found proved or not proved. A finding is not a criminal conviction, and any criminal investigation runs separately.

When the Court Decides One Is Necessary

Practice Direction 12J requires the court to identify at the earliest opportunity, usually at the first hearing, whether domestic abuse is raised as an issue relevant to the child's welfare, and to record that on its order. It should then decide as soon as possible whether a fact-finding hearing is necessary to give a factual basis for a welfare report, a risk assessment or a final order.

Paragraph 17 lists what the court weighs, including:

• the views of the parties and of Cafcass
• whether admissions by a party already provide a sufficient factual basis
• whether other evidence already available does so
• whether the safety factors in paragraphs 36 and 37 can be decided without a hearing
• the nature of the evidence needed to resolve the allegations
• whether the allegations, if proved, would be relevant to the order sought
• whether a separate hearing would be necessary and proportionate

Re H-N adds that not every case needs a fact-finding hearing even where domestic abuse is alleged: the court must identify the real welfare issue first. Where the court decides against a hearing, its order must record the reasons; where it directs one, it fixes a Dispute Resolution Appointment to follow at the same time.

Evidence and Common Problems

Allegations of harm enter a children case on form C1A, filed with the C100 application or the response to it, to describe harm you or a child have suffered or are at risk of suffering, or to answer the other person's allegations. Cafcass then checks with the police and local authorities, speaks to each parent and reports in a safeguarding letter before the first hearing, adding a risk assessment and a referral to children's social care where it has safety concerns.

Where a hearing is directed, paragraph 19 tells the court to give directions and to consider the evidence needed: whether the key facts can be set out in a schedule or table giving examples of specific events and any pattern of coercive and controlling behaviour, so the judge sees the alleged abuse as a whole rather than incident by incident, with the respondent's reply to each point; written statements from both parents; whether documents or oral evidence are needed from the police, health services or domestic abuse support services; and the support each parent needs to give evidence or to challenge it.

Problems that can weaken a case or delay the hearing:

• allegations described in general terms, with no examples, dates or documents behind them
• a reply that denies everything in a line, where a schedule or statement should record what the respondent says about each allegation
• messages, medical records or police disclosure gathered late, so the hearing is adjourned and the child waits, which the Children Act treats as likely to prejudice their welfare
• a parent who expects the hearing to decide contact, when its only task is to decide what happened

How the Fact-Finding Process Works

1. Allegations are raised on form C1A with the application or the answer to it, and Cafcass completes its safeguarding checks and letter.
2. At the first hearing the court records whether domestic abuse is an issue and decides, with reasons, whether a fact-finding hearing is necessary; a section 7 report is not usually requested until after it.
3. The court gives directions on any schedule of allegations and replies, statements, third party disclosure and any participation measures, including a ground rules hearing where needed.
4. The fact-finding hearing and the Dispute Resolution Appointment that follows it are fixed together.
5. Each parent confirms their account in sworn evidence and is questioned on the disputed facts; the judge may put the questions where that is necessary and appropriate.
6. The court decides each allegation on the balance of probabilities and, wherever practicable, records findings on the nature and degree of any abuse and its effect on the child and the parents in a schedule to the order.
7. The judgment or an agreed list of findings goes to Cafcass for any section 7 report, and the case moves to the welfare stage.

Practice Direction 12J says later hearings should be before the same judge, and that the court must consider whether a risk assessment would help and whether a parent should seek advice, treatment or another intervention before any order is made. The court should ensure that any order for contact will not expose the child to an unmanageable risk of harm, and should make one only if satisfied that the physical and emotional safety of the child and of the parent they live with can, as far as possible, be secured. The presumption in the Children Act 1989 that a parent's involvement furthers the child's welfare applies only where that involvement can be arranged without putting the child at risk of harm. Our page on domestic abuse and child arrangements covers the welfare stage.

Cross-Examination and Giving Evidence Safely

The Family Procedure Rules assume that a party or witness stated to be, or to be at risk of being, a victim of domestic abuse by another party is vulnerable, so the court must treat the quality of their evidence and their participation as diminished unless they ask otherwise. It can direct a screen or separate waiting areas, evidence by live link, a communication aid or an intermediary, and holds a ground rules hearing before a vulnerable person gives evidence to settle how they will be questioned.

Separately, Part 4B of the Matrimonial and Family Proceedings Act 1984, in force since 21 July 2022, prohibits cross-examination in person where a party has been convicted of, cautioned for or charged with a specified offence against the witness, where an on notice protective injunction such as a non-molestation order is in force between them, or where specified evidence of domestic abuse by the party against the witness is before the court. In other cases the court may direct that it is not to happen where it would diminish the quality of the evidence or cause significant distress, if a direction would not be contrary to the interests of justice. Each bar works both ways.

Where a bar applies and the party has no lawyer, the court must consider whether there is a satisfactory alternative; the court putting the questions itself is not one. If there is none, it invites the party to appoint a qualified legal representative and, failing that, must consider whether the interests of justice require it to appoint one. That representative conducts the cross-examination only, is not responsible to the party, and is paid from central funds.

When Legal Advice Is Especially Important

Advice makes the greatest difference where:

• you are making allegations and need to decide which ones matter and how to evidence a pattern rather than a list of incidents
• you deny the allegations and must answer each one with your own evidence, before findings that may have a lasting effect on the final order
• there is a police investigation, a conviction or a protective injunction, which changes who may ask questions and what counts as established
• you will give evidence about abuse and need a screen, a live link or a ground rules hearing arranged before the day
• the local authority starts care proceedings, where parents are usually entitled to non-means-tested legal aid (not something RakLAW, a privately funded firm, offers)

If you or your child are in immediate danger call 999; the National Domestic Abuse Helpline is 0808 2000 247. RakLAW does not offer legal aid; GOV.UK says a person with evidence of domestic abuse may qualify for it.

How RakLAW Solicitors Can Help

We act for parents on both sides of these hearings from 42 Shad Thames in Southwark, a short walk from Tower Bridge. The firm was founded by solicitor Rakesh Prajapati, and fact-finding work sits within our wider children matters service.

For a parent raising allegations we prepare the C1A and the statement, request police, medical and support-service disclosure early, and apply for participation directions and the cross-examination protections. For a parent answering allegations we reply to each one, gather the messages, records and witnesses that support your account, and make sure you can challenge the evidence fairly.

We say honestly whether a fact-finding hearing is likely to help your case or delay it. Our family law fees page explains how we charge; the court fee is paid with the application, and the amounts are on the GOV.UK court and tribunal fees page. Call 0203 345 2000 for a free 15-minute consultation or book an appointment online.