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The role of Fact Finding hearings in family proceedings

This week we examine the role of fact finding hearings in family proceedings.

Fact finding hearings are sometimes required in family proceedings when it is necessary to get to the bottom of allegations between parties, when the truthfulness of these allegations might have a bearing on the outcome of the case. Frequently, the “facts” underlying the narrative are difficult to determine as the contrasting narratives of two former partners with subjective views of their former relationship, often contradict one another. In these hearings, judges must give a detailed judgment, setting out reasons for the findings of fact and the conclusions reached based on those findings.  It falls to them, the difficult task of giving reasons for their human assessments of such issues as who is lying, why they are lying and whether those lies should have an impact on the ultimate decision the judge must make.

The role of fact-finding hearings was discussed in the recent, tragic case of R (Children) [2018] EWCA Civ 198, following a criminal trial. The mother of two young children died in the kitchen of their family home in June 2016 of a single fatal knife wound to her neck. There were only two people in the kitchen at the time of the assault – the mother and her husband. Six months prior to this, the mother had left the family home and had moved in with her new partner but would often return home to see the children. On the fatal day, the mother and father began to argue with each other, and the mother picked up a knife and slashed out with it. One of the children received a cut on her arm. The father was cut on his head. The father was able to usher the child out of the kitchen. He then struggled with the mother and at some stage gained possession of the knife.

The jury in the father’s criminal trial had to consider expert evidence to come to their verdict, and had to compare the experts’ conclusions with the account of the incident given by the father. The knife wounds, in the view of the experts, did not support the account by the father. Nevertheless, the criminal jury could not be sure that the father was guilty, and after being instructed by the Crown Court Judge regarding the law of self-defence and related principles, they returned a verdict of not guilty on 30 May 2017. The trial generated some 1,000 pages of written statements and other documents, and there were hundreds of pages of transcripts of oral evidence given by witnesses in the criminal trial.

The local authority brought care proceedings the day after the incident. The care proceedings began on 17 July and asked the judge to apply elements of criminal law to reach conclusions regarding the threshold allegations under s.31 of the Children Act 1989. In that judgment, the court found that the father ‘more likely than not did not act in self-defence’.

The father appealed. The judge, McFarlane LJ, immediately flagged up his concern that the case was applying criminal concepts of “self-defence” and “loss of control” to family proceedings. He noted that a court, hearing an application for a care order under Part IV of the Children Act 1989, is not concerned with establishing civil or criminal liability for acts that were committed. The court is instead seeking to make findings in relation to child protection matters. He said, “Given the wider range of evidence that is admissible in family proceedings, and, importantly, the lower standard of proof, it is at best meaningless for the Family Court to make a finding of ‘murder’ or ‘manslaughter’ or ‘unlawful killing’”. He also noted that the issue of whether a fact-finding hearing should be held in the family court, after an acquittal in a criminal trial, had not been addressed before, in case law.

McFarlane LJ set out four points of guidance:

  1. a) The focus and purpose of a fact finding investigation in the context of a case involving the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court;

    b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes open to such risks as the factual determination may have established;

    c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court;

    d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.

The Judge then reaffirmed principles set out in Practice Direction 12J of the Family Procedure Rules, that the Family Court should only embark upon a fact-finding process “..when it is necessary and proportionate to do so”. Courts should consider carefully whether there is already available sufficient evidence for the court to make decisions regarding whether a parent can care for a child.

Another of the trial judges, Gloster LJ, pointed to case law (S-B (Children) [2009] UKSC 17) to indicate that there is no obligation on a trial judge in care proceedings to identify the perpetrator in a case where there are several possible perpetrators; it is therefore not necessary to look for liability as would be necessary in a criminal trial. She then set out her five other issues to consider when deciding whether to embark on a fact-finding hearing, in these particular circumstances:

  1. Whether there is sufficient specific psychiatric or other evidence to support any contention by the local authority or the guardian that the children “need to know” the view reached by a family judge on the killing issues, notwithstanding the passage of time and the prior acquittal of their father in the criminal courts;
  2. Whether the concern to protect the children from any possible future violent conduct or emotional harm that might be perpetrated by the father requires the determination of the killing issues, notwithstanding the fact that the children had been in his care for some considerable time prior to the death of their mother apparently without mishap;
  3. Whether any subsequent determination of the killing issues in the context of family welfare proceedings could afford him or his children a fair trial under Article 6 of their rights to family life;
  4. Whether it is proportionate in all the circumstances effectively to retry or try the alleged perpetrator in relation to the killing issues;
  5. Whether such proceedings would, in context, be an abuse of process or achieve little other than a second judicial, as opposed to a jury, view of the evidence.

These principles, will continue to be discussed as this tragic case moves towards the Court of Appeal or the Supreme Court. What is certainly clear is that a fact-finding hearing is not the same as a trial by jury and litigants and professionals alike, in the Family Court, need to understand the very specific role of fact-finding hearings. Many litigants might genuinely seek to establish facts after the fallout of a difficult relationship, but a fact-finding hearing is not necessarily the forum for this. The future welfare of the child or children, and any need to establish facts purely to ascertain a correct assessment of this, is the singular focus of these hearings.

If you have a question about fact-finding hearings, or any other family law issue, you can call us on 01223 443333 and make an appointment to speak to Adam, Simon, Tricia, Sue or Gail.