Finding Of Fact: Domestic Violence And Public Interest 

Published on 23 December, 2021 | Katie Welton-Dillon

Fairness has always been one of the fundamental principles of family court proceedings.

Regardless of whether those involved agree entirely with the outcomes, having matters adjudicated in an even-handed manner is an important element in ensuring that they are at least accepted.

Of course, every judicial decision depends on weighing up the facts in each case.

Sometimes, differences of opinion can make it difficult to arrive at a definitive outcome.

In matters relating to childcare arrangements which lack clarity – and, in particular, those cases which involve allegations of domestic violence – certain rules or practice directions apply.

Practice direction 12J is relied on to “to set out what the Family Court or the High Court is required to do” in such circumstances (https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12j).

When there are allegations of domestic violence, it may be necessary to have a ‘finding of fact’ hearing.

This process involves the individual making such allegations detailing their claims – supported by whatever evidence they have at their disposal – with the person accused of misconduct given the opportunity to respond.

Their respective positions are then considered with a decision being made on the balance of probability as to whether the behaviour complained about occurred or not.

It goes without saying that it is not an easy process for anyone to go through. A finding of fact is not the end of the matter either.

If, for instance, it is decided that someone’s conduct poses a risk to their children, it can potentially mean their being prevented from spending time with their child or children.

At the heart of these deliberations is the well-being of the children concerned. In fact, according to the legislation used to determine childcare arrangements (the 1989 Children Act – https://www.legislation.gov.uk/ukpga/1989/41/section/1), “the child’s welfare shall be the court’s paramount consideration”.

However, they also carry significant implications for parents too, a point which has been driven home by a very recent case involving the former Government minister Andrew Griffiths.

In the course of proceedings last year which he had launched in an effort to secure more time with his child following a divorce, his ex-wife Kate alleged that he had subjected her to repeated domestic violence, including rape, over a number of years.

A fact-finding hearing into the claims was held and decided that the abuse had indeed taken place.

Mr Griffiths subsequently sought to prevent the judgement being reported on by journalists, arguing that it would damage his relationship with his child.

Various media, including the Press Association, countered that the outcome was in the public interest given his political profile.

They were supported by Ms Griffiths, who expressed her confidence that “her ability to care for the child would not be adversely affected by publication”.

Furthermore, she suggested that the “interests of transparency, her right to freedom of expression, and her right to share her private experience as a survivor of rape and domestic abuse” were best served by allowing the ruling into the public domain.

The Court of Appeal has now agreed. Its judgement (https://www.judiciary.uk/judgments/griffiths-v-tickle/) was quickly followed by news stories setting out the domestic violence which Mr Griffiths had tried for a year to keep under wraps (https://www.thetimes.co.uk/article/d4f49504-59e1-11ec-81f2-17f963b74220?shareToken=3806cb031c6ef2c857475600b5533d96).

In my experience, finding of fact hearings are becoming more common, in part as a result of another Court of Appeal ruling in March about how family courts should deal with allegations of coercive and controlling behaviour (https://www.judiciary.uk/wp-content/uploads/2021/03/H-N-and-Others-children-judgment-1.pdf).

An allegation of domestic abuse does not necessarily mean that there will be a fact-finding hearing. Courts can call upon other powers, such as non-molestation orders, if there is no sense of concern about the well-being of a child being put at risk.

These hearings do, though, prolong the task of determining what arrangements divorced or separated parents may have with their children. That, in turn, can have critical consequences for children’s development.

Delays in any proceedings are far from ideal. Nevertheless, the courts have repeatedly outlined their obligation to families to take action based on facts, no matter if those facts make uncomfortable reading for one or other of the parties involved.