Fact-finding hearings should not be default in abuse cases – McFarlane

By Monidipa Fouzder >>

(23 May 2022)

The president of the family division has called for fewer fact-finding hearings – revealing that judges and magistrates have been issued with guidance to correct an ‘urban myth’ regarding a groundbreaking case last year.

Sir Andrew McFarlane told family law group Resolution’s annual conference in Birmingham that the ‘default position’ when domestic abuse allegations are made is to have a fact-finding hearing. ‘There was an urban myth among some judges that the Court of Appeal in HN said there needed to be more fact-finding. That needed to be clarified,’ he said.

McFarlane approached Lady Justice Macur to draft ‘short, pithy guidance’ on fact-finding hearings and domestic abuse in private law children proceedings.

The guidance was shared with the conference during a children law update. To determine whether a fact-finding hearing is required, judges must consider the nature of the allegations and the extent to which those allegations are likely to be relevant to making a child arrangement order. The purpose of a fact-finding hearing is to allow assessment of future risk to the child and the impact of any abuse. Judges must also consider whether fact-finding is necessary or whether other evidence suffices, and whether the fact-finding is proportionate.

McFarlane stressed that he was not ‘diluting’ the need to do fact-finding when serious allegations of domestic abuse are raised. However, he said the most serious allegations ‘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’.

Fact-finding hearings can cause further damage to relationships and clog up the system, preventing the courts with getting on with cases that ‘really do need to be heard’, he added.

(Courtesy: The Law Society Gazette)