Christopher Naish

Procedure in private law fact finding hearings

All family advocates who undertake any private law children work will increasingly have to deal with the issue of fact finding.

The amended Practice Direction 12J places an increased focus on issues of domestic abuse and harm and widens the definition of domestic abuse to include coercive, controlling and threatening behaviour. In cases where such issues are raised, judges cannot simply ignore them and must determine the extent to which they may be relevant in deciding what child arrangements order to make. Frequently this will require a separate fact-finding hearing.

This is made more complicated in cases where both parties are unrepresented and even in cases where only one party is represented. Unrepresented parties may very well not grasp the evidential and procedural requirements for dealing with the issues.

In the recent case of RE J (Children) [2018] EWCA Civ 115, the Court of Appeal had to consider an appeal from a fact-finding hearing conducted by an experienced Circuit Judge where the father, who faced very serious allegations including an allegation of rape, was unrepresented. At the end of the appeal, the Court concluded that there were procedural errors which required them to allow the appeal.

At an early stage of proceedings, the Court had made a without notice injunction for a period of two years. There had never been a contested hearing to consider whether the injunction should continue. The injunction and Children Act proceedings were simply consolidated and so the injunction application was repeatedly adjourned over an 18 month period.

In the course of case management, the judge decided the following matters :

  1. An application by the father for his McKenzie friend to cross-examine the mother, a prospect which the judge said filled him with “profound disquiet” to put it mildly;
  2. That a fact-finding hearing was not necessary as the children (aged 11 to 18) were so hostile to the prospect of seeing their father, that the application could be determined without the need for a fact-finding exercise.
    The judge subsequently laid emphasis on two factors as justifying this decision :
    1. that this had been decided with the agreement of the parties; and
    2. that there was no prospect that the children would accept a judgment adverse to the mother and vindicating the father .

The father appealed on two main grounds : that there should have been a fact-finding hearing; and that his McKenzie friend should have been allowed to address the Court.

Interestingly the Court of Appeal did allow the McKenzie friend to address them on behalf of the father.

The following points are made in the judgment of McFarlane LJ :

  1. This judgment considers the effect of the latest version of PD12J issued in October 2017.
  2. The Court of Appeal expressly referred to the following paragraphs :
    • Para 5 : the need to identify at the earliest opportunity whether issues of domestic abuse arise; and to ensure that where they do, any contact is safe;
    • Para 7 : the requirement to consider whether the statutory presumption of parental involvement in a child’s life (section 1(2A) Children Act 1989) applies in this case.
      NB it does not apply where “there is some evidence before the court in particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.”
    • Para 16 : the need to consider as early as possible whether there should be a fact-finding hearing.
    • Para 17 : sets out what must be taken into account in making the decision whether to hold a fact-finding hearing.
    • Para 19 : a reminder that matters must be determined as soon as possible and fairly and proportionately.
  3. The Court noted that in this case there were cross-allegations and it was said by father that mother had fabricated the allegations against him.In effect, therefore, the judge’s order left the children in the care of a mother who may have caused them emotional harm, without investigating the issue.
  4. The Court referred to a number of cases emphasising :
    1. The importance of avoiding delay; and
    2. The importance of making every effort to establish contact.
  5. In relation to cross-examination of an alleged victim the Court of Appeal said :
    1. That it would be very rare for a McKenzie friend to be allowed to cross-examine aan alleged victim : cross-examination of alleged victims required a very high degree of skill and sensitivity;
    2. The least worst option will usually be for the judge to question the alleged victim.

Summary

From this case, these principles can be drawn :

  1. Where there is a disputed injunction, it should be listed for a contested hearing as a matter of urgency. The Court referred to the latest guidance, namely Practice Guidance: Family Courts – Duration of Ex Parte (Without Notice) Orders [2017] Fam Law 332.
  2. The Court should not shy away from holding a fact-finding hearing. This is particularly important where there are serious allegations with cross-allegations of fabrication.
  3. Section 7 reports should not usually be ordered before the conclusion of the fact-finding exercise : if they are, the reporter cannot form an informed view on welfare without knowing what the facts are. This is emphasised at para 22 of the Practice Direction.
  4. There is a positive duty upon a family court ‘to grapple with all available alternatives before abandoning hope of achieving some contact’.

There is a sad footnote to this case : having determined that the judge had been wrong to refuse to hold a fact-finding hearing, the Court of Appeal concluded that it was simply too late to hold a rehearing, particularly given the ages of the children. The Court therefore affirmed the decision of the trial judge refusing the father any contact with his children.