Fact-finding hearings and Practice Direction 12J
In circumstances where a child’s parents have separated and they are unable to reach an agreement about the arrangements for the child, either party may decide to apply to the Court for a Child Arrangements Order. A Child Arrangements Order regulates who a child will live with and whether that child will spend time or otherwise have ‘contact’ (i.e. phone calls) with the other parent (and sometimes with other relevant people). There may also be occasions when the Court is asked to make protective or prohibitive orders on an urgent basis.
In proceedings relating to a Child Arrangements Order, the Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary. So what should the Court do when one or both parties allege domestic abuse has taken place?
Firstly, it should be understood that in this context domestic abuse is defined as:
“any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment”.
In proceedings when allegations of this nature arise, what is known as ‘Practice Direction 12J’ provides guidance about what the Court is required to do. This includes the Court having to consider at all stages of the proceedings the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a Child Arrangements Order and if so, in what terms.
In circumstances where the allegations are denied, the Court will have to make a decision about whether it is necessary to conduct a specific hearing to determine whether, on ‘the balance of probabilities’, the alleged incidents did or did not happen. This is called a fact-finding hearing (or Finding of Fact Hearing /FOFH).
Often allegations are raised at the start of proceedings and you may therefore find the Court is making directions relating to potential fact-finding hearings very early on. This may include directions about a schedule of allegations with a statement in support, the requirement for the other party’s response, together with any third party witness statements, as well as the potential need for Police disclosure and disclosure of medical evidence, which can all be very daunting for the parties. As this is a complex area of law it is important you get the right legal advice.