There has been increasing research into and awareness of domestic abuse and the harm it causes children.
When the court considers applications for child arrangements orders and the arrangements for where children live, and the time they spend with the other parent, the court must consider whether domestic abuse is raised as an issue.
The court will have to consider the need for children to have a relationship with both parents and ensure that children are not exposed to harm where domestic abuse is raised as an issue.
This is a separate hearing where the court will consider any disputed allegations of domestic abuse. The court will determine if it is more likely than not that the event occurred. The test that the court applies is the balance of probabilities test and the burden of proof lies on the party making the allegations.
A fact finding hearing can assist with the following:
In a fact-finding hearing, the focus of the hearing is to ensure the allegations are put and responded to. Both parties are given an opportunity to give oral evidence and to cross-examine.
The court should consider at the earliest opportunity whether a fact finding hearing is necessary to consider any disputed allegations of domestic abuse.
When determining whether a fact-finding hearing is necessary, the court will consider the following:
If domestic abuse is alleged, a fact-finding hearing is only needed if the abuse is likely to be relevant to deciding whether to make a child arrangements order.
If the court concludes that the allegations, if proved, would not be relevant to the decision that the court will make in respect of an application for a child arrangements order, then a fact-finding hearing may not be required.
It is for the court to determine if a fact-finding hearing is necessary, but the court will take into consideration the views of the parties and of the Children Family Court Advisory and Support Service.
Once the hearing has taken place, the court will look at the issue of child arrangements in light of the findings made. If no findings are made, the court must proceed on the basis that the allegations did not happen.
If findings are made on some or all the allegations, the court must consider the child's arrangements and the risk posed to the child or the parent with whom the child lives.
If you have any more questions or would like more information regarding fact finding hearings, you can contact our Family Law Team below.