Before the hearing
The court will expect you to provide a list of the matters that are of concern so that the other parent can respond. Courts often ask the parents to limit the matters complained of to six of the most significant incidents. This will be completed on a Scott Schedule (see 19).
You should try to give the date and location of the incident, a summary of what happened, who was present (any witness or the child) and what happened afterwards. You will also be asked to prepare a statement of what happened on each occasion. At the hearing, this statement will count as your evidence.
If an allegation was reported to and investigated by the police, make sure that all relevant reports are given to court. This could include any statements taken at the time, photographs of any injuries and any written recordings made by police officers. If you sought medical assistance, it is important to provide the court with these. The court can also order any relevant records to be released such as police records.
It is important that if a fact finding is ordered, applications under Part 25 have been made so that witnesses can be called. The judge has the right to refuse to allow witnesses, but s/he must have grounds, or this can be used as the basis of an appeal. Professional witnesses rather than family or friends have more credibility as courts tend to give less weight to statements from friends or relatives that are confined to general statements of how good one parent is and how bad the other is.
The fact-finding hearing
Usually, you will give evidence first as you have made the allegations. Then the lawyer for your perpetrator will ask you questions. If your ex-partner has no lawyer the judge will not allow them to question you. This process is then repeated for any witnesses who have filed statements of evidence on your behalf. It will then be your ex partner’s turn to give evidence.
If a Guardian has provided a Section 7 report, s/he may be asked to attend to give evidence.
After all the evidence has been heard, the lawyers will make submissions to the court on points of law or issues of significance. The onus is on you to prove the allegations are true. A single judge rules on who is believed, whether on the “balance of probabilities” the allegations are true or not. The judge’s ruling becomes a “fact” for all future judgements, regardless of whether you disagree, although you will have the chance to appeal.
The court will then consider its decision. The judgement might be given on the same day but if there were a few witnesses the judge might request time to consider the evidence. The judgement is usually read out and will refer to each of the allegations in turn.
If none of the allegations are proved, the court may proceed to make a final order. If some or all the allegations are proved, the court has to decide what happens next. This might include needing further reports from the Guardian for example.
Getting a finding of fact that you were not the victim of rape or DV is very damaging, so it’s always worth appealing if you can. If you don’t appeal, the judge can say that you lied not only about the particular allegations, but about other things as well, or use it as “evidence” that you’re just being vindictive against the father. Some mums who have lost a Finding of Fact hearing have seen residence given to the father, even when the judge knew his history of violence!
Where a finding of domestic violence or abuse has been made
‘The court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that violence or abuse, and any harm which the child and the parent with whom the child is living, is at risk of suffering if a child arrangements order is then made. The court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent.’ Practice Direction 12J
We do know that the courts nearly always agree to some form of contact and at this point you should be discussing supervised contact with your lawyer. The court can also decide whether one or both parents should attend courses or undertake work in relation to domestic abuse and violence prevention measures.