The Court has determined a Finding of Fact is needed – What happens now?
PD12J states that where the Court considers that a fact-finding hearing is necessary, it must give directions as to ‘how the proceedings are to be conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties.’
In addition to ensuring that all paper evidence that the Court will need to consider for the Finding of Fact is already available or will be before the hearing, the Court will also consider :-
• what evidence the person who allegedly suffered domestic abuse is able to give and what support they may require at the fact-finding hearing in order to give that evidence (eg a screen so that the other party cannot see them in Court and/or whilst they are giving evidence
• where the person alleging abuse is unable to be present in person at the hearing for reasons beyond their control what measures should be taken to ensure that that person’s best evidence can be put before the Court – eg videolink
• what support the person against whom the allegations are made may need in order to have a reasonable opportunity to challenge the evidence; and
• whether a pre-hearing review would be useful prior to the fact-finding hearing to ensure directions have been complied with and all the required evidence is available.
Where the Court lists a matter for a Finding of Fact, it will also list the matter for the next hearing called the Dispute Resolution Hearing (‘DRA’). It is expected that the same Judge or bench of magistrates (or at least the same chairperson) will hear both the Finding of Fact at the DRA to allow for judicial continuity.
The Court will not usually request a Section 7 Report until after the fact-finding hearing has taken place as Cafcass will need to know whether it is basing any report on the fact that there has been domestic abuse or not. Any transcription of the judgment made at the end of the Finding of Fact will be provided to Cafcass, or if there is no transcription, an agreed list of findings should be provided
In addition, where a Finding of Fact has been directed or where there are still disputed allegations of domestic abuse the Court is unlikely to make an interim Child Arrangements Order unless it is satisfied that it is in the best interests of the child to do so and is satisfied, as far as it can be, that the order would not leave the child or the other parent open to an unmanageable risk of harm (taking into account the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse including controlling or coercive behaviour).
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