The President of the Family Division, Sir Andrew McFarlane, more recently invited Lady Justice Macur to form a small group with the task of producing short, clear and practical guidance for judges and magistrates to consider when looking at the issue of whether to hold a fact-finding hearing in private law children proceedings in the Family Court.
That new guidance sought after has now been published online. Some of the headlines from the new guidance to take away are now as follows:
- Every hearing before the Court should be made to count – judges and magistrates are being told not to agree to short hearings or agree to insufficient preparation time for the first or other case management hearings on the basis that things can be ‘sorted out’ next time. Judges and magistrates are being reminded to remain ‘in control’ and to try and then achieve judicial continuity and so take ownership of the case.
- Judges are being reminded that any delay is “inimical to child welfare”.
- Judges and or Magistrates have the relevant expertise and competence to analyse and determine the necessity for a fact-finding hearing to determine issues that might be raised, and if so, the extent of the hearing and the evidence that will be required. The views of the parties, the CAFCASS officer or the advocates may be persuasive, but they are not determinative; judges are being reminded to “interrogate their reasoning”.
- There is a time and a place to determine allegations of domestic abuse, but it may not be in court. Unless it will be relevant to, and necessary for, decision-making regarding the welfare of the child, the court should not allow the court to be used to litigate such allegations.
- At the First Hearing Dispute Resolution Appointment (FHDRA) or first directions appointment or even to be considered at gatekeeping:
- Have the parties attended mediation? Has a MIAM taken place? If not, why not? Should it now be required? The court has a duty to consider non-court dispute resolution: FPR r3.3.
- If a MIAM exemption has been claimed on the ground of domestic abuse, judges are being asked now more so than before to double-check that evidence exists as specified at FPR PD3A and check whether the exemption earlier claimed remains valid: FPR r.3.10.
- If appropriate, the Court is being asked to also now consider whether to invite an authorised family mediator to advise whether mediation is possible with adaptations such as shuttle diplomacy or other protective measures being put in place.
Is a fact-finding hearing required?
When determining whether to order a fact-finding hearing, the Court will be expected to actively consider:
- the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of a child arrangements order;
- that the purpose of a fact-finding is to allow assessment of the future risk to the child and the impact of any abuse on the child;
- whether fact-finding is necessary or whether other evidence suffices; and,
- whether fact-finding is proportionate.
The fundamentals are:
- purpose, and
- proportionality (FPR PD 12J  and )
Throughout the process, the Court is to always consider whether the allegations (even at their highest) go to safeguarding in general or to particular circumstances that could be mitigated by supervision of contact or some other measures being put in place. If the latter and mitigations are available, why is it said that a fact-finding hearing is required?
If the Court considers having heard on the points raised that if the allegations, if proved and however serious, would not be relevant to the decision, then no fact-finding hearing is required, in that case, judges and magistrates are being told to record brief reasons for their decision whether or not a fact-finding hearing is necessary on the face of the order.
Whether a fact-finding hearing to determine any issue raised is likely to remain a significant feature of many private children cases and the new guidance issued to judges and magistrates is more so now than ever before to come up for discussion given the significant number of cases now being issued before the Family Court and the limited Court time and resources available to determine each and every case.
To avoid delays in re-establishing contact and to ensure that if you are genuinely concerned about the safety of any child arrangements that are already in place, then it is always recommended that you seek advice on your case and circumstances at an early stage.
If you require further information or would like to make an appointment on any of the issues that might be raised by this article please contact David Banks, Solicitor on 0191 269 6871 or email [email protected] for immediate legal advice and help.
In certain cases, we are able to offer legal aid help and assistance subject to criteria administered by the Legal Aid Agency. For more information as to eligibility please refer to eligibility guidance on the UK Government website.
This article is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.