Understanding Fact-Find Hearings in Child Arrangements and Domestic Abuse Cases
When an application is made to the court for child arrangements order and there are issues around domestic abuse (physical and/or emotional/coercive control), the court may have to consider whether there should be a fact find hearing.
When a party applies to the court for a child arrangements order and there are allegations of domestic abuse there are several presumptions:
- Any order for contact must be in the best interests of the child;
- The court has a duty to promote contact with the parents;
- There is no presumption either way as to whether the child should have contact with an abusive parent;
- That it is better for the child to have both parents involved in their lives.
The presumptions do not apply if they would put the children at risk of harm.
When there is a case involving domestic abuse (both emotional and physical) the court has to consider:
- The impact of domestic abuse on living arrangements;
- The effect of domestic abuse on the child and their relationship with that parent;
- Whether the abusive parent is only seeking contact to continue the abuse of the other parent;
- The capacity of the parent to understand the impact on the child;
- How to manage the risk.
The court may be presented with numerous allegations of abuse which may be physical, emotional or coercive control (or a mixture of any of them).
The court if presented with such evidence can make several different findings:
- That the abuse occurred;
- That the abuse did not occur;
- That it is impossible to make a finding anyway.
It was almost always the case that where domestic abuse was alleged the court would list a fact find hearing. The court would have before them a list of allegations (which may have started out very extensive and been reduced at an early stage to a limited number of allegations) and the parties would then give evidence and the court would make findings on each allegation as set out above. This process is by its nature time consuming, expensive and very difficult for the parties emotionally with no guarantee of the outcome.
The courts have in recent years started to focus more on a pattern of behaviour instead of individual incidents. The court will tend to give more emphasis to this than to each allegation.
The courts no longer automatically order fact find hearings. Instead, they consider if a fact find hearing is really necessary and going to help the court and the parties. The courts will now only order a fact find hearing where they feel the alleged abuse is relevant to the child’s welfare and the child arrangements.
Fact find hearings are expensive and delay proceedings and will often not take the case any further.
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