Family Solicitors

The underlying principle in all applications for Contact and Residence is the welfare of the child. Accordingly, the Court is under a duty to consider any allegation of domestic violence (physical or verbal) made against a party within the proceedings or against the child. The duty is continuing and the risk of domestic violence is considered at all stages.

In order to consider allegations of domestic violence a Fact Finding Hearing maybe directed at any stage. Fact Finding Hearings are regulated by the Family Law Practice Directions and form an integral part of “trying a case” as opposed to being a separate exercise.

In order to consider allegations of domestic violence a Fact Finding Hearing maybe directed at any stage. Fact Finding Hearings are regulated by the Family Law Practice Directions and form an integral part of “trying a case” as opposed to being a separate exercise.

At the Hearing, the Court will considering any allegation of domestic violence, with particular focus on the impact such violence will have on the child’s welfare. If, on the evidence, it is decided that a party has been violent, then a finding of fact will be made against that party.
Fact Finding Hearings are important because:-

1. An investigation into the allegations of violence minimises the risk posed to a child before an order for contact or residence is made. The process promotes the welfare and safety of the child.

2. The Court is given the power to introduce a 3rd party, such as CAFCASS, into the proceedings to recommend steps which may be taken to progress contact between a child and a parent.
3. An opportunity is given to both parties to present their case, with evidence, and the Court is under a duty to consider both sides.

4. The Court may make an order for interim contact before the allegations of domestic violence heard. In practice, interim contact orders are rare if the allegations of violence are very serious and it is more likely that an order for Indirect Contact (through letters, gifts, and presents) will be made.

The Legal Position

The importance of Fact Finding Hearings was reinforced in a recent reported case in which the firm acted. A Fact Finding Hearing was part heard meaning the Court had heard evidence from the mother but not the father or the CAFCASS Officer. Notwithstanding this, an order for unsupervised contact was made.
The order was dismissed on the basis that the trial judge had not heard all the evidence. LJ Wall condemned the decision of the trial judge vehemently and ordered a retrial emphasising that the Fact Finding process cannot be “short circuited” and all the evidence must he heard before an order for contact is made.

The purpose of this article is not to provide a detailed explanation of the law, but to point you towards some of the issues that the Court
considers when dealing with allegations of domestic violence are raised in contact applications.

If you are facing a similar issue then we would advise that you contact our specialist team to assist you.