
CHAPTER ONE – INTRODUCTION TO FACT FINDS IN CHILDREN ACT PROCEEDINGS
Finding of Fact hearings are essentially a mini trial in the proceedings. The court must consider the relevant allegations that are in dispute, and evidence in support by one or both parties. The relevant allegations are put to the court to decide whether, in its view, the incident did or did not happen.
Finding of Fact hearings are designed to get to the truth of a relevant allegation. In Children Act proceedings, where the child’s welfare is the paramount consideration, allegations (if proven) can be relevant to how the child’s welfare is resolved.
The approach to be taken when determining whether a separate Finding of Fact hearing is required to resolve relevant allegations is different in private law proceedings and public law cases (see Chapter 2).
The two-stage process of facts and welfare is sometimes referred to as a ‘split hearing’.
In May 2010, Sir Nicholas Wall P handed down Guidance on Split Hearings, in which he ascribed the following definition:
‘a “split hearing” is a hearing divided into two parts, during the first of which the court makes findings of fact on issues either identified by the parties or the court, and during the second part of which the court, based on the findings which it has made, decides the case. A “fact finding hearing” is the first limb of a split hearing.
Where did it all start?
When the court is determining whether a Finding of Fact hearing is required, this is a determination that a separate listing is needed to resolve that factual dispute from the welfare stage of the proceedings.
The Children Act Advisory Committee’s Annual Report 1994/1995[1] stated that consideration should be given to whether questions of fact in a particular case, such as an allegation of physical or sexual abuse, might need to be determined at a preliminary stage and, in such a case, the early resolution of those issues would then enable the substantive hearing to proceed more speedily and to focus on the child’s welfare with greater clarity.
From one point of view, this approach makes perfect sense. For example, if a parent is accused of injuring their child and it can be demonstrated that they did not, the sooner that determination happens the better. In addition, when completing assessments to know what happened by clear fact, rather than by speculating through different and competing scenarios, this will ensure the assessments are safe, secure and robust in their evaluation of the issues.
The holding of separate fact-finding hearings emerged from public law cases. Part IV of the Children Act 1989 provides the statutory framework for state intervention in the family where it is demonstrated to the requisite standard that, ‘the child is suffering, or is likely to suffer, significant harm and that harm, or likelihood of harm, is either attributable to the care given to the child, or likely to be given, if a care order or supervision order were not made that care not being what it would be reasonable to expect to give the child or attributable to the child is beyond parental control.’ This is often referred to as the ‘threshold criteria’ under section 31(2) of the Children Act 1989.
So split hearings became the thing to do as a means of expediting what are often described as single-issue cases i.e., there was only one factual issue to be decided. More often than not, this is a scenario seen in public law proceedings where the threshold for jurisdiction in section 31 of the Children Act 1989 would not be satisfied if a finding could not be made, thereby concluding proceedings.[2]
The court has no jurisdiction to make welfare decisions in public law proceedings if the threshold criteria is not satisfied. ‘If the local authority could not prove the threshold criteria, then of course, their application would succeed without more as otherwise I would have no alternative but to dismiss the proceedings.’[3] Threshold establishes whether the court has jurisdiction to determine the application for a public law order. Threshold must be crossed before intervention by the state is lawful. Therefore, it will often be necessary to make Findings of Fact before threshold is crossed.[4]
It then became common – certainly in public law proceedings where there were issues in dispute relevant to welfare for the court to embark on a split-hearing approach.
The Court of Appeal attempted to reign in that culture by stating,
‘Unless the basis for such a decision is reasoned so that the inevitable delay is justified it will be wrong in principle in public law children proceedings. Even where it is asserted that delay will not be occasioned, the use of split hearings must be confined to those cases where there is a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination (i.e., whether a statutory order is necessary) to be made more expeditiously.’[5]
It did caveat its decision by clearly stating that the appropriateness of Finding of Fact hearing in private law children cases were not the subject of this court’s consideration,
‘In private law proceedings it is the court that is defining an aspect of parental responsibility in its determination of the arrangements that are put in place for the child and findings of fact are appropriate, where necessary, to inform that process by reference to the factors in section 1(3) of the 1989 Act and in particular where safety issues have arisen which justify the court’s interference with the article 8 ECHR rights of the family members. In public law children cases where a care order is in issue, the court is being asked to sanction an agency of the state, namely the local authority, being permitted to exercise parental responsibility for a child. The jurisdiction in the court to undertake that task has to be based upon the existence of facts (primary and/or secondary) that satisfy the threshold in section 31 CA 1989. Accordingly, concessions or findings of fact relevant to the threshold question will always be necessary in public law cases alongside such further findings of fact as are necessary to inform the welfare evaluation.’[6]
In private law proceedings, there are no ‘threshold’ findings required as a prerequisite for proceedings to be considered lawful. The jurisdictional basis for private law orders are considerations under s.1 of the Children Act 1989 and the welfare checklist. A party might suggest that disputed allegations are relevant to the welfare enquiry. Quite often the court will identify that issues pertaining to the factual matrix (i.e., the issues in dispute) and welfare are closely bound and, therefore, best considered together. However, where there are allegations of domestic abuse, it is that category of case that creates a catalyst for considering whether a split hearing is required.
In the private law arena, split hearings gained traction in conjoined appeals of Re L, V, M and H (Contact: Domestic Violence)[7] – the ‘go to’ authority on domestic abuse cases before the implementation of PD12J, which confirmed that ‘the history was of considerable importance and should be established before the exercise of judicial discretion as to the future.’[8]
However, it was recognised by the judiciary that this approach was going to put the system (which was already struggling) under a lot of pressure.
‘It is well known that the family justice system, both in the public law and in the private law dimensions, is stretched to breaking point. Judges have an obligation to safeguard and to husband the judicial resources of the court. It is also well known that the cost to the taxpayer of funding in the family justice field is worryingly high and that the government is determined to contain it. The direction of an unnecessary hearing is wasteful both of judicial resources and of public funding in publicly funded cases.’[9]
As a result, it was made clear the obligation to order a fact-finding preliminary hearing would always be a matter of discretion for the judge, provided that the judge, in refusing, sufficiently explained that decision.
While the judicial guidance on split hearings[10] was given some 14 years ago, it remains (in large part) just as relevant now as it was then. Whether it is put into practice as often as it should be is a separate consideration, and one that is unpicked in more detail later on.
The following points from the guidance continue to run through modern-day authoritative case law:
- The decision to direct a split hearing or to conduct a Finding of Fact hearing is a judicial decision. It is not a decision for Cafcass or for the parties; it is a decision to be taken by the court. Thus, the court should not direct a fact-finding hearing simply because the parties agree that one is necessary or because Cafcass says it cannot report without one. Such considerations are, of course, to be taken into account, but they are not conclusive.
- A Finding of Fact hearing is a working tool designed to assist the court to decide the case. Thus, a Finding of Fact hearing should only be ordered if the court takes the view that the case cannot properly be decided without one.
- Even when the court comes to the conclusion that a Finding of Fact hearing is necessary, it by no means follows that such a hearing needs to be separate from the substantive hearing. In nearly every case, the court’s findings of fact inform its conclusions. It will be a rare case in which a separate fact-finding hearing is necessary.
- Where a Finding of Fact hearing is necessary, the court must give directions designed to ensure that the matters in issue are determined expeditiously and fairly.
- When domestic abuse is alleged, it will not automatically lead to a split hearing with a preliminary fact-finding hearing.
Where are we and where are we going – public law?
In public law proceedings, the statutory implementation of the 26-week timetable reinforced that, in practice, a split-hearing approach would not only be rare, it would not be possible on a six-month timetable.
This caused a response which, on occasion, compromised the fair process of the resolution of the proceedings. It was made clear that 26 weeks was not a ‘straightjacket’[11] and that ‘justice must never be sacrificed upon the altar of speed.’[12] It was then confirmed that there would be statutory exceptions to the mandatory deadline for, ‘cases that are clearly not possible to conclude in 26 weeks (e.g. split hearings, international cases, etc).’[13]
In practice, the 26-week timetable is not working as intended. Following the pandemic, there has been an attempt to reset and remove the ‘start-again culture’.[14] However, it remains to be seen whether the repeated reminders to operate within the statutory timetable are being heeded. What is apparent is that those cases that rightly justify a split hearing in order to resolve the factual matrix before embarking on welfare considerations are unlikely to ever be compatible with this piece of legislation. Not least, in my experience, of the requirement for the court to be asked to permit, as it often is, the instruction of a single joint expert – sometimes multiple experts. There is a crisis (I do not consider that to be an over-statement). There are too few experts being recruited and retained within the family justice system. The effect is that those experts that remain available to accept instructions have timescales of c.12-16 weeks.
There is, in tandem with the reset approach to the management of public law proceedings, an appetite to reduce the number of experts being appointed by the court. Practitioners are reminded about the test that needs to be satisfied for an expert to be instructed. The key word is ‘necessary’.[15] The court will only permit the instruction of an expert where it is demonstrated to the court that to do so is ‘necessary to assist the court to resolve the proceedings justly.’[16]
Those cases that justify a separate hearing will often be described as ‘single-issue cases,’ i.e., where the determination of that factual issue will either meet the threshold criteria or not, and if not then the proceedings fall away. This type of factual scenario meets the objective created and maintained as a result of the introduction of the concept of split hearings, i.e., the outcome of facts lends itself to an overall more swift and accurate resolution of the proceedings. Any case that involves a multitude of issues (including non-accidental injury) will likely not meet the justification for a separate hearing.
As a practitioner, you should try to always have front and centre of your planning the following question. ‘Why is it necessary to have a Finding of Fact hearing, and how will this impact on care planning?’ Be able to answer those questions by reference to the facts/issues that concern your case.
Where are we and where are we going – private law?
Where there is an application for a Child Arrangements Order (or other section 8 order), the court will only determine that a separate Finding of Fact hearing is required if it considers there is a necessity to establish the factual matrix in advance of a welfare inquiry.
In Re HDH,[17] Lord Justice Peter Jackson said, ‘every fact-finding hearing must produce something of importance for the welfare decision… the question is whether on the individual facts of each case, it is right and necessary to conduct a fact-finding exercise.’
In order to evaluate whether the disputed issues require a determination in advance of welfare analysis, the court will need to know the nature of allegations being made and the response to the same. Mrs Justice Lieven DBE, in TRC v NS [2024] EWHC 80 (Fam), reminded practitioners of the distinction between the relevance of allegations and the need for a separate hearing (my emphasis underlined),
- ‘However, in private law there are no “threshold” findings and it may well be that issues of the factual matrix and welfare interests are closely bound up, and best considered together. The jurisdictional basis for private law orders are the considerations under s.1 of the Children Act 1989, and the welfare checklist. This encompasses matters of fact, but also welfare issues. It is both difficult, and often unhelpful to try to compartmentalise these matters.
- In many private law cases with allegations of domestic abuse, where the court is focusing on the relevance of such allegations to the best interests of the children, it is much less clear that separating fact-finding from welfare is a helpful way to proceed. The welfare checklist focuses the court in considering the case in a holistic manner. The neat categorisation of truth and untruth and hard binary facts often sits uneasily with the reality of failed relationships. It may be much more useful for a court to consider the evidence, including that of the FCA, in a holistic way rather than trying to separate facts from welfare.’
The application of Practice Direction 12J[18] ensures a constant engagement with the issue of whether a separate hearing is required in private law proceedings.
Delay is an important consideration when determining the necessity of a separate Finding of Fact hearing. Section 1(2) of the Children Act 1989 states, ‘in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.’
The Family Court Statistics Quarterly: April to June 2024 showed there were 13,030 private law cases issued. It identified that it was taking, on average, 43 weeks for private law cases to reach a final order.
In July 2024, Sir Andrew McFarlane, The President of the Family Division, called for global support for the Pathfinder model, which is described as a ‘problem-solving court’ that is more child-led. In addition, he reminded all key stakeholders within the family justice system of the importance of Mediation Information and Assessment Meeting (MIAM) and that, ‘the revised MIAM regime is much more than a tweaking of some of the provisions; it should be seen as a radical tightening up of the whole process. There are now fewer, more narrowly defined, exemptions, for which evidence must be provided… In addition, every party must file a short statement setting out their approach to options for non-court dispute resolution.’[19]
In March 2024, the Family Justice Board[20] set out three priorities for private law disputes, namely:
- No open private law case longer than 100 weeks;
- Reduce the number of open private law cases by 10%; and
- Improve the experience of children and survivors of domestic abuse involved in private law proceedings.
It is apparent that there are a number of initiatives in play designed to reduce the need for litigation within the private law arena and, by extension, Finding of Fact hearings.
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[1] Lord Chancellor’s Department, Family Policy Division
[2] Re S (A Child) [1996] 2 FLR 773 §775B, Bracewell J
[3] Redbridge London Borough Council v B C & A [2011] 2 FLR 117, Hedley J at §9
[4] Re H (Minors) (Sexual Abuse) 1996 AC 563
[5] Re S (A Child) 2014 EWCA Civ 25
[6] Re S (ibid) §28 Ryder LJ
[7] 2000 2 FLR 332
[8] Re C [2009] EWCA Civ 994 §13 per Thorpe LJ
[9] Re C (ibid)
[10] Ibid
[11] A View from The President’s Chambers (7): ‘The process of reform: changing cultures’
[12] Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) §40 Pauffley J
[13] Re S (A Child) [2014] EWCC B44, Sir James Munby P
[14] A View from The President’s Chambers: November 2022
[15] Part 25.4(3) Family Procedure Rules 2010
[16] Section 13(6) Children and Families Act 2014
[17] [2021] EWCA Civ 448 paragraph 21
[18] Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm
[19] A View from The President’s Chambers: July 2024
[20] Family Justice Board, minutes from 19 March 2024