Child Care Solicitors

By Laki Begum

The following article addresses fact finding hearings which are frequently used in private law, children disputes where allegations of domestic violence are alleged by one parent against another.

A Practice Direction was implemented on 9 May 2008 entitled: “Residence and Contact Orders: Domestic Violence and Harm”, which was then amended on 14th January 2009.
According to this Practice Direction the courts should determine:

“As soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic violence before it can proceed to consider any final order(s) for residence or contact”.

Fact finding hearings are a useful mechanism by which allegations can be clearly raised and brought to the forefront regardless of whether the court makes any findings. Subsequently the parties are able to focus on the best interests of the children.

However, in practice, delays in the court’s final determination of children and residence cases are often incurred as a result of undertaking fact finding. Clearly by incurring delays the best interests of a child are adversely affected. Furthermore, where the allegations are of an extremely serious nature, the courts will usually state that no contact should take place pending the conclusion of the fact finding hearing, which means cutting of a parent from a child. On the other hand, where the allegations are of a less serious nature, the courts will often take the view that contact should be supervised at a contact centre, which clearly provides for a restrictive environment. This further gives rise to the difficulty of ascertaining the availability of an appropriately located centre which would be affordable as the number of free contact providers in England, is increasingly on the decrease.

In the author’s opinion, in order to achieve a fair conclusion to such disputes it is crucial that a balance is struck between fact finding and the prevention of delay. This can be achieved by raising the allegations to the judge as early as possible in the proceedings, by drafting Scott Schedules focusing only on the allegations whilst clearly setting them out and obtaining disclosure orders, to obtain independent evidence from various authorities, as soon as practicable.