Behind the scenes of a fact finding hearing in the Family Court

In the beginning of March, I represented the Applicant Father in a private children law case concerning the welfare of his three young children aged 1, 3 and 4 years. The Father lived apart and wished to spend time with his children who were residing with the Respondent Mother.

The matter came before the court for a Fact-Finding Hearing in order to determine the Mother’s 14+ allegations of domestic abuse against the Father. He was accused of exerting controlling and coercive behaviour on her and the family, and sexually abusing her, including ejaculating during sexual intercourse without her consent leading to the conception of their youngest child. The court was most concerned by the allegation that the Father had sexually assaulted his own daughter who was 2 years’ old at the time.

As a result of the allegations, the Father was prevented from seeing his children and his new-born baby for the better part of the year.

The medical professionals were unable to find any evidence of foul-play, the police took no further action and closed all their investigations; and Children’s Services did the same. As proceedings commenced, at a case management hearing the court granted an order for the Father to spend time with the children weekly in a supervised setting until the Fact-Finding Hearing.

At the trial, both parties were represented by “very experienced” legal teams (as described by the presiding judge) who dealt with the case with “care, skill and sensitivity”.

Ultimately, all 14+ allegations against the Father were dismissed. The Father was vindicated.

In the judgment, the court held that the Mother and the Maternal Grandmother had, “at the very best, exaggerated, at the very worst, told the court entire untruths” about the alleged sexual assault of the parties" 2 year old daughter. The judge found that on many occasions the Mother was in fact the controlling one within the parties’ relationship.

The judge recognised that the allegations massively impacted the Father’s wellbeing; they would have “shook him to his core…it was a humiliating experience, which risked everything he held dear”. He was complimented for behaving “impeccably throughout the process” and he was described as a father with “a huge amount” to offer his children.

This case offers three stark reminders in respect of fact finding hearings:

1. He who asserts must prove – with increasingly more cases in the Family Court involving allegations of domestic abuse, particularly of controlling and coercive behaviour, it is important to remember that the burden lies on the party making the allegation. There is no pseudo burden on the respondent of an allegation, even to offer an alternative explanation. This, coupled with the case of Re B (Children) [2008] UKHL 35 which says the law operates on a binary system - the fact either happened or it did not, should remind clients and their representatives to carefully assess whether there is sufficient evidence to prove their case. 

2. The court needs evidence, not suspicion or speculation - it is elementary that ‘findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation’ (Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ. 12). In relation to the allegations of sexual abuse on the Mother and sexual assault of the child, all other agencies involved concluded their investigations with ‘no further action’ due to the absence of objective evidence. More interestingly, during cross-examination of the Mother and the Maternal Grandmother (who was her supporting witness), it quickly became apparent that there were significant inconsistencies between their accounts. The judge found that the credibility of these witnesses was undermined by the “level of exaggeration” and “lack of accuracy” in their cases. The Mother had also failed to produce important documentary evidence, despite repeatedly claiming to have access to it. There was very little supporting evidence to the Mother’s claims.

3. The court should only deal with what is necessary – a key thread that ran through the heart of this case was the Court of Appeal’s decision in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448. The court repeated that it should only make findings where it is strictly necessary to do so; the test is whether a finding is likely to be relevant to the decision of making a child arrangements order. Many of the Mother’s allegations were dismissed, simply because they had no bearing on the issue of child arrangements.

I am grateful to Ashley Le-Core and Stowe Family Law LLP for the instruction and assistance in this case.  

To instruct Taehyun, please contact Jay Dorton.