Family Solicitors

By Ghazal Jamali

Time and time again the question as to whether a fact finding hearing is necessary is raised in family cases. Where one party has made allegations of domestic violence against the other the first question which usually arises is whether there is need for a fact finding hearing.

The current Guidance on whether a fact finding hearing should be listed makes the following important points:

• It is ultimately up to the Court to decide whether a fact finding hearing is necessary and one should not be directed just because the parties agree that it should be.

• A fact finding hearing should only be directed if in the absence of findings of fact a final decision cannot be made. This can apply to cases where the parties have made serious domestic violence allegations against one another and in order for the Court to make a decision on the case findings of fact need to be made.

• If a fact finding hearing is directed the Judge must consider whether the hearing should form part of the substantive hearing.

• Therefore where a party denies contact due to allegations of harm a fact finding hearing should not be automatically directed. Instead the court should apply the guidance found in the Practice Direction: Residence and Contact order: Domestic Violence and Harm when considering whether the outcome of any fact finding hearing would affect the decision of the court, and to what extent.

In implementing the above Guidance the approach that is seemingly being taken is to determine whether a fact finding hearing is necessary at an early stage and listing the matter for such a hearing as soon as possible. Parties are then directed to file their respective evidence and a review hearing is listed prior to the fact finding hearing. Having received all of the necessary evidence the Judge is then able to determine whether the fact finding hearing should take place or whether the hearing should in fact be a final hearing.

In a recent case for which the firm acted, both parties agreed that a fact finding hearing was not necessary as the mother agreed to the father having contact. This was in spite of the fact that she had raised serious domestic violence allegations against the father. The Judge went against both of the parties and ruled that a fact finding hearing was necessary. The reason behind his decision was that there was nothing preventing the mother from stopping contact in the future and using the allegations of violence as a reason for the father not having contact. The Judge felt that in order to protect the father a fact finding hearing was essential. The impact of the decision was that an interim contact order could not be made despite both parties agreeing to contact taking place.

It is felt by many practitioners that fact finding hearings are unnecessary and that they cause delay, however in cases where allegations of domestic violence are made it is hard to avoid such hearings. The issue with fact finding hearings is not only the delay it may cause to the proceedings but also the fact that it could have a negative impact on the parties' relationship. In such hearings there will inevitably be 'winners' and 'losers' and the issue is that once the parties have gone through the ordeal of producing oral evidence against one another, it is highly unlikely that they will behave in a civilized manner towards one another.
As things stand despite many practitioners' dislike for fact finding hearings, legal issues warrant the need for such hearings.