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When is a Fact Finding Hearing Necessary?

Rhiannon Davies and Charmian Gammon, Barristers of St Ives Chambers, consider the President's Guidance and recent caselaw relating to split hearings

Rhiannon Davies, Barrister, St Ive's Chambers   Charmian Gammon, Barrister, St Ive's Chambers

Rhiannon Davies and Charmian Gammon, Barristers, of St Ives Chambers

Finding of fact hearings have been a source of much debate in recent times. At best, they can narrow and determine issues within both public and private law proceedings so as to avoid delay, inform expert assessment and assist effective case management. At worst, they can build in significant delay, unnecessarily "raise the temperature" of private law proceedings and incur disproportionate expense. The President's Guidance of 28th May 2010 firmly acknowledges the potential issues and emphasises the importance of the court considering the merits of such hearings on a case by case basis. The impact of the President's Guidance on the use of split hearings remains to be seen. However the spirit of the Guidance is very clear. The court must very carefully consider the need for a split hearing before embarking on such a course.

Re B (Children) [2008] UKHL 35 provided much needed clarity to the standard of proof to be applied in split hearings, both in public and private law proceedings. Cases such as  Re S-B (Children) [2009] UKSC 17 have equally shed further light on the correct approach to cases in which only a "pool" of potential perpetrators of harm in public law proceedings can be identified. There have however been a number of recent decisions in relation to the practice and procedure of split hearings which are important to note. In particular, split hearings do raise issues for the appellate courts as, by their very nature, the ability to observe and evaluate the oral evidence of witnesses is limited.

This article is therefore intended to consider both the latest President's Guidance and recent developments in the practice and procedure for such hearings.

Judicial attitudes prior to the President's Guidance
The President's Guidance in Relation to Split Hearings [2010] 2 FCR 271 ("the Guidance") arose following a series of cases in which the Court of Appeal expressed growing concern at the delay and complications arising in cases in which split hearings were being held, arguably unnecessarily.

In W (Children) [2009] EWCA Civ 644 a step-father was accused of raping his step-daughter and the child's mother was alleged to have physically assaulted the child.  The substantive appeal concerned the question of whether the step-daughter should have been required to give evidence at the fact finding hearing and whether such should have been adjourned pending the outcome of the concurrent criminal proceedings. However, Wall LJ took the opportunity at paragraphs 27 to 35 to consider whether a fact finding was even needed. The court accepted that a fact finding hearing was 'almost inevitable' where there was a disputed allegation of rape and the mother and step-father were seeking the return of the child to their care. Conversely, the court questioned the need for a fact finding on the disputed allegations against the mother when it was accepted that the child had suffered a number of injuries and the mother had made a number of admissions. In such a situation it was suggested that "[a]dvice as to the outcome could, in my judgment, have been tendered to the judge on the basis that disputed admission had been made".

Wall LJ reminded all professionals that:

"[A] rigorous approach has to be taken to finding of fact hearings. Any hearing must, of course, be fair, but the judge may need to make robust changes to schedules of findings prepared by local authorities, and local authorities in particular need to examine their practices carefully to ensure that a finding of fact hearing is strictly necessary for the proper and expeditious resolution of the proceedings."

In the case of L (A Child) [2009] EWCA Civ 1008 the court was concerned with a young child who suffered serious non-accidental head injuries in the care of his parents. Both parents accepted that the most serious injuries were non-accidental although both denied being responsible for the injuries. The mother accepted that she must be considered in the pool of perpetrators, though suggested the weight of the evidence pointed towards the father. The father was charged with causing the injuries in concurrent criminal proceedings. At the end of a fact finding hearing the judge concluded that the injuries were non-accidental but that she was unable to identify one parent as perpetrator and so concluded that it could have been either or both of them.

The judge refused the mother's application for an independent assessment in light of a finding of a global family failure to protect. That decision was overturned on appeal and the mother was allowed to obtain her independent assessment.

Wall LJ commented, obiter, that "[s]peaking for myself, however, I doubt that a separate finding of fact hearing was necessary." The reasoning behind this comment is unclear, though it seems highly unlikely that this is a suggestion that the fact finding exercise should have taken place at the same time as the welfare determination, given the outcome of the appeal. Instead the comment appears to suggest that no fact finding exercise should have been conducted at all.

Such a suggestion may seem surprising to many practitioners, though the implication appears to be that lengthy and costly fact findings, even for serious injuries, may be unnecessary when all the parties recognise that the court in not going to be able to narrow the pool of perpetrators any further than already identified by the local authority.

Conversely the Court of Appeal had considerable praise for the first instance judge in the case of C (Children) [2009] EWCA Civ 994 in refusing the mother's application for a fact finding hearing on historical allegations of domestic violence when the father already had several convictions for violence against the mother and contact was progressing in a supervised setting.

In the course of his judgment Thorpe LJ considered the impact of the case of Re L, V, M and H (Contact: Domestic Violence) [2000] 2 FLR 334 which had emphasised the need to investigate and establish the truth in allegations of past violence and signalled the widespread introduction of fact findings in domestic violence cases. He commented:

"Those judgments had a wide impact and perhaps the members of this court gave insufficient attention to the burden that they were placing on judges and district judges in the County Court up and down the jurisdiction."

Wall LJ's opinion on this subject was made clear in his keynote speech to the National Resolution Domestic Abuse Conference in October 2010:

"Unfortunately, it has transpired that judges have been holding unnecessary fact finding hearings, sometimes lasting several days, as a result of which they find facts which are not relevant to the ultimate issue."

So against this background the current guidance was issued in an effort to encourage the courts to focus on whether fact finding hearings are really necessary.

The current Guidance
The Guidance makes four main points:

(i) The decision about whether to hold a split hearing rests with the judge, not with the parties or CAFCASS. Such hearings should not be ordered just because the parties agree that there is a need or because CAFCASS say they cannot report without one.

(ii) A fact finding hearing should only be ordered where the court "takes the view that the case cannot properly be decided without such a hearing."

(iii) Even if a fact finding hearing is necessary, consideration must be given as to whether this needs to be a split hearing or should form part of the substantive hearing. "In my judgment it will be a rare case in which a separate fact finding hearing is necessary."

(iv) In domestic violence cases this means that allegations of harm put forward as a reason to deny contact do not automatically require a fact finding hearing. Instead the court should rigorously apply the guidance in the Practice Direction: Residence and Contact order: Domestic Violence and Harm [2009] 2 FLR 1400 in considering whether the outcome of any fact finding hearing would affect the decision of the court, and to what extent.

Where does that leave us?
The Guidance and case law make clear that the courts and professionals have been too willing to embark on fact finding hearings without proper consideration as to what purpose those hearings will serve in the context of the proceedings as a whole. If this Guidance is applied robustly then the courts should see a decrease in the number of fact finding hearings being listed as well as a decrease in the length of such hearings as the issues for determination are narrowed and focused. Certainly this writer and others working in the area have already seen magistrates and district judges taking this approach and refusing fact finding hearings in cases where both parties have submitted that such a hearing is necessary.

Whether this approach will actually lead to decrease in cost and delay remains to be seen. One of the criticisms in the Guidance was that unnecessary fact findings also meant the "ill-focused use of scarce expert resources", presumably referring to numerous medical experts coming to court to give evidence that could not realistically be challenged. However, one concern is that the Guidance, if applied, will inevitably shift the focus on to the welfare stage and the courts will be requesting reports from professionals who are being asked to consider their recommendations in the light of a number of different possible factual scenarios, presumably at a higher cost.

Perhaps the benefits of the Guidance can be more easily appreciated in the private law sphere, where in all but the most serious domestic violence cases a progression of contact from a supervised setting to unsupervised could be managed without the need for a fact finding hearing when the alleged perpetrator is willing to undertake work such as anger management courses and provide undertakings to the court.

However, it remains hard to see how cases involving allegations of sexual abuse or serious physical violence will be able to escape the process of a split hearing where such allegations are denied.  

Recent case law - practice and procedure
Appeals in respect of findings of fact made after oral evidence are notoriously difficult to formulate. The inherent advantage to the first instance tribunal in being able to observe first hand the demeanor of witnesses is well established as noted in Re S (Abduction: Custody Rights) [2002] EWCA Civ 908 at para [25]:

"Although it is possible to appeal against a finding of fact, it is notoriously difficult to succeed in so doing. Where findings of fact are made based on the demeanor of a witness, the appeal court will seldom interfere because the trial judge has the special advantage over the appellate judge." 

The principles for appealing a finding of fact hearing were recently reviewed in AA v NA and KAB [2010] EWHC 1282. In this case, 89 allegations were heard over a period of 9 months during 17 days of evidence. The judge provided two draft judgments before handing down his final judgment, in which he found in favour of the mother on every allegation. The father appealed.  

In allowing the appeal, Mostyn J helpfully reviewed the court's jurisdiction to consider appeals against findings of fact and concluded that (para 15):

"In my opinion an appellate court would only be able to say that a fact-finder has plainly got the wrong answer if:

i) His conclusion was demonstrably contrary to the weight of the evidence, or

ii) The decision making process can be identified as being plainly defective so that it can be said that the findings in question are unsafe.

I would include in the second category errors of principle as to, say, the burden or standard of proof, or a failure to take into account well-established principles as to the weight to be given to proven lies or litigation misconduct in reaching the factual findings."

Mostyn J concluded that the trial judge had placed too great a weight on allegations of litigation misconduct on the part of the father, insufficient weight on inconsistencies in the mother's account and had not provided clear reasoning to support a finding that the father had hit the children. These issues were sufficient to undermine the entirety of the findings.

Following the finding of fact hearing, the parents had in any event agreed a shared residence order in respect of the children. In view of this, a split hearing was not re-listed. As an aside, if the Practice Direction on Domestic Violence had been properly applied then this fact finding would probably not have taken place as it appears that the outcome was unlikely to affect the ultimate welfare decision.    

M (A Child) [2010] EWCA Civ 1467 is a recent example of the Court of Appeal intervening in findings of credibility made at first instance. Both parents appealed findings that they were perpetrators of injuries to their son. In respect of the father, the Court of Appeal did not intervene in the judge's conclusion that he was solely responsible for non-accidental injuries inflicted in the October: 

"The judge, I deduce, listened to his answers and sensed that they were those of a father who – between the lines – was saying: "Well, whatever else I did, I did not hold E down". I am sure that it would have been dangerous for the judge to attach substantial weight to the point. But her description of it was that it was "significant" and I feel unable, from this vantage-point, to conclude that she was not entitled to attach some weight to it." (Per Wilson LJ para 32)

However, in respect of injuries inflicted in the December, mother's appeal against a finding which placed her in the "pool" of perpetrators was allowed. This finding was against the weight of the evidence when set against mother's otherwise excellent care of the child, and the clear evidence against the father.

An unusual point as to procedure was raised in the matter of Re A (Children) [2010] EWCA 1490. In this case, care proceedings had been initiated in respect of three children. It had been alleged by the mother that both she and the children had been the victims of domestic violence at the hands of the father. This issue had been set down for a split hearing. The guardian at that hearing had instructed her counsel to support the mother's position. Findings were made against the father and it was evident from the recorder's judgment that the position advanced by the guardian's counsel was of significance in the case. Following the judgment, the father became aware that the guardian had instructed the recorder in separate proceedings which had been ongoing and "live" during the split hearing. 

After inviting submissions, the recorder recused herself from hearing the matter again at the "welfare" stage but did not set aside her previous findings. The father appealed against this refusal.  Interestingly, the guardian (being an expert) was not held to be a "litigant" in the same sense as the parents and thus this appeal was outside of the line of authority which prevents judges from hearing cases in which they have live instructions from one of the parties. 

Applying the "informed bystander" test as recently set out in Helow v SSHD [2008] 1 WLR 2416, the appeal was allowed. It was emphasised however that this case was not intended by the Court of Appeal to provide a general rule that a professional relationship between the guardian and a judge is a basis for recusal. This case turned on its facts, the material points being that the guardian took a partisan position and that the relationship between the recorder and the guardian was current.   

The Guidance urges careful consideration as to the need for a finding of fact hearing. Active case management is required and practitioners can expect to set out clear arguments in respect of the need for such hearings. There continues to be a growing body of case law on appealing finding of fact hearings. AA v NA and KAB [2010] EWHC 1282 represents a useful re-statement of the principles.