Need for more fact-finding hearings an “urban myth”

Speaking at the recent Resolution annual conference, Sir Andrew McFarlane, president of the family division, called for fewer fact-finding hearings in family cases.

McFarlane noted that judges and magistrates had received guidance so as to correct an “urban myth” that arose in Re H-N and Others (Children) last March. He said that the “default position” following allegations of domestic abuse is to have a fact-finding hearing.

“There was an urban myth among some judges that the Court of Appeal in H-N said there needed to be more fact-finding. That needed to be clarified”, said McFarlane.

The new guidance, which McFarlane asked Lady Justice Macur to draft in a “short, pithy” fashion, covers fact-finding hearings and domestic abuse in private law proceedings involving children. The guidance was shared with the Resolution conference during an update on children law.

In deciding whether a fact-finding hearing is necessary, judges are to consider the nature of the allegations and whether their extent is relevant insofar as making a child arrangement order. Judges are to use the hearings to assess future risk to the child and the extent of the impact of the abuse. They must also consider the necessity and proportionality of the hearing, and whether other evidence is sufficient.

The president of the family division went on to add that he was not “diluting” the need for fact-finding hearings in the most serious of cases, though he added that such cases “are not necessarily what went on when the couple were together. The real worry will be if behaviour that is coercive and controlling or in some other way harmful has carried on after separation”.

Rather, when couples are still together, McFarlane said fact-finding hearings can worsen the relationship and clog up the system, therefore stopping the courts addressing cases that “really do need to be heard”.