Finding of fact in family law cases
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In a bid to clarify any prior misunderstandings, the Court of Appeal has provided guidance as to when fact-finding hearings in private family law proceedings are required when allegations of domestic abuse are raised. The case of K and K  EWCA Civ 468, which was handed down on the 8th of April 2022, highlights that the court is not obliged to hold a fact-finding hearing in every case where domestic abuse is alleged. The decision, which follows on from the seminal case of Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings)  EWCA Civ 448, instead makes it clear that the court ought only to embark on a fact-finding hearing if “the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare”[para 8]. Moreover, the court has also sought to emphasise in its judgment “the importance of the requirement in rule 3.3(1) for the court to consider, at every stage in proceedings, whether non-court dispute resolution is appropriate”[para 34].
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.
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)  EWCA Civ 908 at para :
"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 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.
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