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Truth or Lies? Finding of Facts

Written by Victoria. Posted in Blog

When family courts are involved to make decisions as to what arrangements are best for the children between separating parents or sometimes wider family, there are often allegations and counter-allegations made by the parties.  Sometimes these are true and sometimes they are fabricated or exaggerated.  If an agreement cannot be reached, these issues will usually be considered by the judge at a final contested hearing.  In a few cases however, the court will need to decide who is telling the truth on important issues earlier in the proceedings and that is when a fact-finding hearing may be ordered.

These hearings are usually necessary to decide whether something happened or not in order to help CAFCASS (who prepare reports for and advise the court on what they consider to be in the best interests of the children).  There is often tit for tat between the parties which can be disregarded when CAFCASS advise the court but sometimes the issues raised are so important that the court and CAFCASS need to know who is telling the truth before making important decisions about the children.  Examples may be whether one party has been abusive to the other party and/or the children (domestic abuse can be control or intimidation and can fall short of actual violence) or whether allegations by one party that the other party has sexually abused a child are true.  Sadly, some parents chose to make up serious stories about the other parent that have no truth at all for their own ends including but not exclusively, as a means of preventing the other parent seeing the child and using the child as a pawn to hurt the other parent.

The court has to be satisfied that a separate fact-finding hearing is necessary.  Sometimes a party will admit some behaviour or there may be other evidence, such as drug tests or a criminal conviction, which satisfy the court.  The court need to be certain that the allegations are relevant to the application made to the court.  Sometimes the court may feel that the allegations are not serious enough to affect child arrangements or may decide that it is not proportionate in the circumstances of the particular case to hold a separate fact-finding hearing.

If a fact-finding hearing is necessary the person making allegations will need to schedule them with dates and details of what happened and support this with a detailed statement.  The other party will then have the opportunity to respond to both documents.  Witnesses can also give statements. The court may also make orders to obtain information such as police or medical records where relevant.  At the hearing, both parties and any witnesses will need to give evidence to the court and be questioned on their positions to try to establish who is telling the truth, before the Judge makes a decision.

The judge will usually go through each allegation and whether it is proved (believed to be true) or not.  The judge will then decide how the case progresses.  Sometimes if no allegations are proved decisions as to child arrangements can be made there and then.  Usually the judge will allow the parties time to reflect and either order another hearing with or without further involvement from CAFCASS.  If findings are made the court will have to decide whether there are steps that can be taken for it to be safe for a child to see that parent such as providing for a violent parent to attend a Domestic Violence Perpetrator Programme to address their violent behaviour. Sometimes the findings will be so serious that the court will decide that it is not safe for the parent to spend time with the child or may decide that they should not do so face to face and can only send occasional letters or card.

Parents who consider making serious false allegations need to be warned that doing so will usually in itself be considered harmful to the child and could be considered so serious that the court decide that it is not in the child's best interests to live with or in extreme circumstances even spend time with that parent.