O (Appeal; Duty to Consider Fact-Find), Re [2024] EWHC 839 (Fam)


[2024] EWHC 839 (Fam)

The Duty to Consider Fact-Finding is the responsibility of the judge where there are allegations of domestic abuse and or coercive or controlling behaviour. This has been reiterated in the recent decision in O (Appeal; Duty to Consider Fact-Find), Re [2024] EWHC 839 (Fam).

What is a Fact Finding?

“A Fact-Finding Hearing is a type of court hearing in which the evidence surrounding allegations is considered, and the court decides whether or not the alleged incidents occurred. Evidence is heard, which usually includes cross-examination of parties. After hearing the evidence, the judge will decide whether or not the alleged incidents occurred.” Child Law Advice

The Facts in this Case:

The appeal was in respect of a Child Arrangements Order which was made for the younger child’s contact with their father. The matter involved allegations of domestic abuse between the parents and contact arrangements for the children to meet their father. The Appeal was made on the following 5 grounds:

  1. Procedural irregularity
  2. Failure to implement participatory proceedings
  3. Failure to consider Part 3 Family Procedure Rules 2010 and Practice Direction 3AA
  4. Failure to determine allegations of Domestic Abuse
  5. The judge was wrong to make the Child Arrangements Order without applying Practice Direction 12J

The Importance of Fact Finding

Fact finding is usually necessary where there are allegations of domestic abuse and other issues that would directly impact a decision on welfare for the children concerned.

The Judge will review evidence and submissions to decide based on the balance of probabilities whether the allegations are true.

The impact of the Judge finding that there has been domestic abuse or coercive control will directly affect the decision about the welfare of the children and the existence and details of any Child Arrangements Order.

In this case, the High Court stated that there should have been consideration about having a Fact-Finding Hearing but stopped short of ordering that this should happen.

The Appeal Outcome

Where there is an allegation of domestic abuse or coercive control, or references to a toxic relationship where the children have been impacted, the Court has a duty to consider the facts and therefore hold a Fact-Finding Hearing. Failure to do so, will likely lead to an appeal on the outcome.

If there is a history of domestic abuse, controlling behaviour or other toxicity in the relationship, and it is alleged that the children have been affected, a Fact-Finding Hearing should be held to determine on the balance of probabilities whether the allegations hold weight. It is paramount that the interests of the children are the Court’s priority, and this includes safeguarding their mental health and wellbeing.

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