The President of the Family Division, Sir Andrew McFarlane P, has issued guidance to the judiciary on the approach to fact-finding hearings. In it, he reiterates the importance of making "every hearing count". He notes that "There is a time and a place to determine allegations of domestic abuse, but it may not be in your court. Unless it will be relevant to, and necessary for, your decision regarding the welfare of the child, do not allow the court to be used to litigate such allegations."
He urges the judiciary to identify the real issues in the case, and to consider what exactly is alleged in terms of domestic abuse and by whom. The court must consider the questions pertaining to the child's welfare. Whilst the Court of Appeal in Re H-N [2021] EWCA Civ 448 cautioned against allowing the use of a Scott Schedule (listing only "significant" allegations) to distort the fact finding process, their use was not ruled out as a structure to assist in analysing specific allegations.
Crucially, when considering whether a fact-finding is required, the court should consider:
- the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of a child arrangements order;
- that the purpose of a fact finding is to allow assessment of the future risk to the child and the impact of any abuse on the child;
- whether fact-finding is necessary or whether other evidence suffices; and,
- whether fact-finding is proportionate.
He notes that the fundamentals are relevance, purpose and proportionality. If the allegations, if proved, would not be relevant to the court's welfare decision, then no fact-finding hearing is required. Where a fact-finding hearing is to take place, robust case management is required and the court should only order third party disclosure where it is necessary and proportionate to do so.
Sheena Cassidy Hope says: The President's Guidance is a useful tool for parties and courts where allegations of abusive behaviour have been made in the context of private law children cases. Whilst there has been increasing scrutiny of the treatment of allegations of abuse by the Family Court, the guidance is a reminder that the child's welfare must be at the heart of the decision-making process. Allegations of abuse must be treated appropriately, but not every case will require a fact-finding hearing.
Where a fact-finding hearing does take place, the President notes the importance of case management – although Scott Schedules are not appropriate in certain cases (e.g. where the allegations are of a pattern of coercive and controlling behaviour), they may in some circumstances still be useful. The court must also consider what evidence is actually necessary to determine the relevant allegations (i.e. those that ultimately inform the welfare decision). Unnecessarily protracted hearings are likely to result in further delay for the child.