It is a sad fact that domestic abuse features in many cases being dealt with in the Family Courts. This can be the main issue in cases such as applications for non-molestation orders and occupation orders, often referred to as injunctions.
Domestic abuse is also a significant issue if it is raised in cases in which the Court is being asked to make decisions about children. It is recognised by the Court that “Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour)”
If arrangements for children cannot be agreed following separation, an application can be made for a Child Arrangements Order. When such an application is made many issues are raised in deciding whether and how children should spend time with a parent with whom they do not live. If one of those is allegations of domestic abuse the case can go in a completely different direction.
As I have set out in an earlier blog, when allegations of domestic abuse are made in cases involving children the Court is under a duty to identify factual and welfare issues. This means that the court needs to find out exactly what has happened and then consider how that should impact on future arrangements for the children.
To make those decisions, the Court must undertake a process of fact finding which usually involves a hearing taking place at which the court hears evidence and makes a decision about what has or hasn’t happened. This is referred to as a finding of fact hearing.
In practice this usually means that the decisions about arrangements for children are effectively put on hold while the finding of fact process takes place. Clearly the Court needs to find out exactly what has happened before being able to make decisions about what is in the children’s best interests. However the Court is also under a duty to avoid delay when making decisions about children. It would not be right for there to be a long period of no contact between a child and their parent if ultimately the decision is that the child should be able to spend time with that parent.
Practice Direction 12 J of the Family Procedure Rules 2010 states that the court should “give directions to enable contested relevant factual and welfare issues to be tried as soon as possible. . . “
Whenever a finding of fact hearing is necessary therefore it should take place as quickly as possible. The Court should firstly determine the nature of the allegations being made to ensure that the fact finding process is necessary. Directions should be given to obtain evidence however again only that which is necessary should be obtained.
Too often the fact finding process can become protracted which can then have a detrimental impact on the case generally and more importantly the children who are the Court’s paramount consideration.
Farleys Solicitors have a team of family law specialists who can assist you with any aspect of family law including divorce, domestic abuse and child law. Please call us on 0845 287 0939 or contact us online for confidential advice on your situation.
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