As of 22nd April 2014 a new practice direction (PD12J) applies in all private law children cases where issues of domestic violence are relevant.
The PD provides a definition of domestic violence which includes controlling behaviour “designed to make a person subordinate and/or dependant by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.”
The court will;
At the First Hearing Dispute Resolution Appointment (FHDRA) the court will;
- Ensure that the parties are not required to mediate if to do so would be inappropriate and is identified by the safeguarding checks,
- Inform the parties of the contents of the safeguarding letter if they do not have it,
- Consider whether the allegations are likely to be relevant to the issues,
- Give the necessary directions including, where appropriate, listing a fact-finding hearing,
A list of criteria are provided for the court to consider whether a fact-finding hearing is necessary, including;
- The views of the parties and CAFCASS,
- Whether any admissions are sufficient,
- Whether the evidence provided to obtain legal aid is sufficient,
- Whether there is any other evidence which is sufficient,
- The relevance of the allegations and the nature of the evidence in support,
- The necessity and proportionality of such a hearing.
If the court considers a fact-finding hearing is unnecessary it shall record that fact, with the reasons, on the face of the order. If a fact-finding hearing is necessary then the could should consider;
- Whether that hearing is to be separate or not,
- Whether a Scott Schedule should be produced,
- What evidence is required, including third party disclosure,
- Any necessary support for the alleged victim (including special measures), and
- Whether a pre-hearing review is necessary.
In all cases where a fact-finding is ordered the court must at the same time fix a Dispute Resolution Appointment (DRA) to follow the hearing before the same judge.
In most cases a s.7 report will not be ordered to be filed until after the fact-finding.
Finding of fact hearings are to be more inquisitorial and each party is now entitled to ask of the other what questions are to be asked and to confirm in sworn evidence their own account of the true facts. It is specifically provided that the court should consider whether questioning of the alleged victim should be by the judge rather than the advocate.
At the conclusion the court should provide its findings to all parties and consider whether any directions need to be made in relation to the filing of expert evidence.
Where findings have been made the court should only make a Child Arrangements Order (CAO) where it is satisfied that the physical and emotional safety of the child and the resident parent can be protected in doing so. A list of criteria to be considered in so deciding is provided.