A fact-finding hearing is held

The judge will usually decide if a fact-finding hearing (FFH) is necessary when concerns about child sexual abuse and other harms are raised at the first hearing and dispute resolution appointment (FHDRA) in private family law cases, or at the case management hearing (CMH) in public family law cases. 

An FFH addresses only the disputed allegations that are likely to be relevant to deciding who the child should live with and spend time with. 

An FFH is not held in every case; the court determines whether it is necessary (relevant, purposeful and proportionate). 

• If the court considers that an FFH is not necessary, the case goes straight to an issues resolution hearing (IRH) in public family law, or a dispute resolution appointment (DRA) in private family law.  
• If it decides that an FFH is necessary, it makes directions on when and how the hearing should happen, in line with Practice Direction 12J of the Family Procedure Rules.  

All allegations will have been set out in a table, known as a Scott Schedule. 

• The hearing usually begins with brief opening statements. 
• The person who made the allegations gives evidence first. 
• The child’s video recorded interview is usually used as the child’s main evidence to the court (their evidence in chief). 
• All the parties and witnesses are called in turn to give evidence or respond to allegations, and to be cross-examined by the other party's legal representatives. 
• After all the evidence has been heard, both parties' legal representatives make closing arguments to the judge. 
• The judge considers all the evidence and delivers a judgment. 

Facts are found if, after hearing all the evidence, the court is satisfied that the allegation was more likely than not to have happened. 

The findings from the FFH form the factual foundation for the rest of the case: 

• When facts are found, the court will take them into account in its final decision about who the child should live and spend time with.   
• When facts are not found, they are dismissed and not considered in the final decision-making process. This means that practitioners working with the child, including children’s social care, can no longer reference those concerns in their reports and interventions overseen by the court. You should carefully consider how this is communicated with the child, to ensure they still feel believed; they need to understand how the court recognises ‘facts’. 

By virtue of their age, all children are considered to be ‘vulnerable persons’ by the Family Court. The child’s vulnerability should be central to considering how they participate in the FFH. Practitioners involved in the hearing should consider: 

• whether the child needs support from a registered intermediary, who can support them to understand the court process 
• what the child needs to participate in proceedings, whether they attend or give evidence or not. 

The child may benefit from emotional support around the FFH. Take time to listen and understand what they need, and consider who is best placed to help them. In particular: 

• Reflect on the FFH process and how the child may be involved. What is the child’s understanding of the information they share and how it will be used to inform decisions? How might they feel about their abuse being spoken about in court?  
• Think about the decisions that the court will make. What might the impacts on the child be if facts are found or not found? How might the child interpret a decision that facts are not found? How can you support the child to understand what this means? 

As at all times during Family Court proceedings, to support the child and family’s emotional needs you should consider: 

• the child's immediate and long-term care, support and therapeutic needs, including their readiness and willingness to engage with therapy 
• the emotional and support needs of the parent(s) assessed to be safe, including support for them to understand the child’s care and support needs 
• the immediate and long-term care and support needs of other children and vulnerable people in the home, bearing in mind that they too may have been sexually abused 
• the care, support and therapeutic needs of any children in the home who have engaged in harmful sexual behaviour. 

If therapy is not appropriate at this time, consider any barriers that the child faces to accessing therapy, and reasons why there may be opposition to therapy from family or other practitioners. Remember, though, that the Crown Prosecution Service says children can receive emotional support and therapy during a police investigation. 

Any therapeutic support given should have clear ground rules, and should be mindful of any open investigations and the potential to affect or influence any evidence the child may give in criminal law proceedings or family law proceedings.  

Fact-finding hearings are important for establishing the facts of the case, so that safe and just decisions can be made about who the child should live and spend time with – but research shows that FFHs aren’t used consistently in cases where child sexual abuse is a concern.  

Consider how to manage biases which may influence whether a FFH happens or not: 

• A police decision of ‘no further action’ should not be seen as proof that abuse did not happen. It means that the criminal burden of proof may not have been reached; it is not proof of ‘innocence’ or proof that the abuse did not happen. Furthermore, a closed police investigation may be reopened in the future. Try to use the term ‘no further police action at this time’, so that the lack of a current criminal investigation or conviction does not prevent safeguarding actions and decision-making for children. 
• Remember that sexual abuse rarely occurs in isolation. It is closely linked to domestic abuse, grooming, and other controlling and abusive behaviours. 
• Consider how domestic abuse and coercive control may have affected or be affecting parenting dynamics, including their capacity and ability to protect the child. 
• Allegations of ‘alienating parental behaviours’ are sometimes used to deflect from the appropriate enquiries into whether child sexual abuse may have happened. They should be evidenced and scrutinised to the same degree as any other allegation. 
• Be mindful that the Family Court is required to apply the appropriate legal standard of proof to decision-making for children – ‘on the balance of probabilities’, not ‘beyond reasonable doubt’. 

Children (and most parents) won’t understand what a fact-finding hearing is, why it is important, what to expect, or how they could be involved. Before the fact-finding hearing, take the time to explain to them: 

• the purpose of the FFH  
• what will happen at the FFH 
• how decisions will be made 
• what will happen afterwards. 

Agree how they will be informed about the FFH’s outcome. 

Always give the child opportunities to provide more information, and let them know who they can tell. Remember that ‘telling’ is a process, not a linear event: it is common for children to provide more information throughout the court process, and this should not be assumed to be the result of coaching or encouragement from one of the parents. 

The court may decide it is necessary for the child to provide evidence. The Family Justice Council’s Guidelines on children giving evidence set out legal considerations, alternatives to the child giving evidence, and practical considerations before, during and after the FFH. 

The child may benefit from being appointed a registered intermediary, who can be with them in court to help them understand and answer questions. 

You can also support the child’s participation by: 

• checking whether they want to meet the judge or visit the court 
• asking the judge to write the child a letter explaining any big decisions that have been made 
• support the child to write a letter to the judge. 

If you are a practitioner involved in the Family Court process, be sure to follow the plan you agreed with the child about how to keep them informed of the fact-finding hearing’s outcomes. 

Practitioners have an ongoing duty to support the child, whether facts are found or not. 

If facts of child sexual abuse have been found: 

• the focus should move from ‘proving’ past events to assessing and managing future risks to the child  
• Cafcass and local authority social workers must now base their final welfare reports on the facts as determined by the court 
• the finding of facts may lead to significant life changes, such as a change in who the child lives with; bear in mind that this can add another layer of uncertainty and stress to an already traumatic situation. 

If, on the balance of probabilities, facts of child sexual abuse have not been found: 

• this does not mean that child sexual abuse or other harms did not occur; in fact, it could increase the risk to the child 
• this can be particularly difficult and confusing for the child, who may feel disbelieved, invalidated and unprotected – it can also be very difficult for the practitioners involved in protecting them 
• the child's immediate emotional wellbeing is the priority –validate their feelings, actively listen to them, explain your continued role, and explain what will happen next 
• carefully explain the judge’s decision – and how ‘facts’ are recognised in the court arena – in a truthful, age-appropriate way which avoids reinforcing their feelings of disbelief. 

Note that, although facts about child sexual abuse may not have been found, facts may have been found relating to other harms. 

When facts in relation to child sexual abuse have not been found, children’s social care cannot rely on them to inform decision-making and care planning. This can have significant implications for planning around who the child should live with and spend time with – and for future safeguarding decisions and resources. (In some cases, other harms may have been found, and children’s social care need to consider welfare decisions based on these facts.)  

Children’s social care should: 

• review and reflect on what happened at the FFH, by arranging a post-judgement learning review which considers the quality of evidence and what could have been done differently 
• consider whether there are grounds for appeal 
• consider how the finding will be reflected in case recording, to avoid the child feeling they were not believed; ensure that explanations around the balance of probabilities, evidential difficulties and the like are clear  
• keep the child’s interests in focus and avoid lapsing into a ‘false allegation’ narrative.