What happens at the Finding of Fact Hearing?
If both parties are legally represented, or if just one of the parties is legally represented, then discussions will take place between the representatives or representative and the other party, to establish if any further admissions will be made or allegations not pursued before the hearing takes place. In some cases the outcome of these discussions is a request that the Finding of Fact is abandoned as it is no longer required. In others, the issues in dispute can be significantly reduced.
The legal representative will take their client through the evidence and will anticipate what questions their client may be asked in cross-examination and will discuss them with their client in advance.
If both parties are represented, the hearing will run as follows :-
1. Case is opened by the legal representative for the Applicant in the main case
2. The person who is making the allegations will give their evidence-in-chief – ie be questioned by their own representative. Before any evidence is heard that person will have to swear on oath to tell the truth to the Court.
3. This person is then cross-examined by the representative for the other party
4. The Judge will then allow the representative of the person giving evidence to ask further questions if needed, usually if a matter has come up in cross-examination that needs clarifying
5. Any witnesses for the person alleging abuse will give evidence on oath and be cross-examined
6. The other party will then give evidence after taking the oath and will be cross-examined
7. That party’s witnesses will give evidence and will be cross-examined
8. Both representatives will present their closing submissions
9. Matter is then likely to be stood down for the Judge to consider his/her judgment
10. Judgment is delivered. The Judge will go through and comment on the evidence of both parties and will then go through each allegation and give a determination as to whether the Court believes each allegation to be true – in whole or in part – or finds any of the allegations unproven.
If one or both of the parties are unrepresented then the Judge will have asked any unrepresented party to write down and hand into Court a list of the questions that they want to ask the other. Due to the nature of the hearing the Judge should be prepared to ask the questions of both the parties and any witnesses (if appropriate) rather than let the parties cross-examine each other which can be very intimidating and distressing.
One point to note is that if the Court breaks for lunch or has any other break mid-way through one person giving evidence or being cross-examined, including ending the proceedings for that day, then that person’s representative cannot discuss the case with them during that time.
As well as considering the incident itself, the Court will also comment on the effect of any proven abuse on the child, the child’s parents and any other relevant person. Any findings will be recorded in writing and will be provided to each of the parties and to Cafcass if Cafcass is asked to then undertake a Section 7 Report, which is what will happen in the majority of cases.
The Judge may also ask that both parties file position statements commenting on the outcome of the fact-finding hearing and setting out their proposals (if any) for the future. It must be stressed at this point that if the person being accused of domestic abuse still denies it and does not accept the effect that their behaviour has had on the children or the other parent then their application to spend time with the children is unlikely to proceed much further.