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 Appendix 2).
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 andany 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. Judge have the right to refuse to allow witnesses, but they must have grounds for refusing, otherwise their refusal can be used as the basis of an appeal. Professional witnesses are given more credibility than family or friends. If you don’t have any professional to back your evidence but you have relatives or friends, make sure their statements are not just general about how good one parent is and how bad the other is, but give details of incidents they have witnessed or things they have noticed firsthand.
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, they 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, and whether on the “balance of probabilities” they consider the allegations to be true or not.
The judge’s ruling becomes a “fact” for all future judgements, regardless of whether you disagree. So you must do all you can to prepare your evidence really well. If you lose you have the right to appeal.
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 accepted as proved, the court may proceed to make a final order. If some or all the allegations are accepted as proved, the court has to decide what to do next. This might include ordering further reports from the guardian, for example.
A finding of fact that you are NOT the victim of rape or domestic abuse is very damaging to your case – so it’s always worth appealing if you can. If you don’t appeal, the judge can infer 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 mothers 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 rule in favour of some form of contact even when the father has been proven to be violent. If you cannot get the court to rule out contact, you should insist that such contact must be supervised. Make sure to discuss this 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.