Making Every Hearing Count: Finding Facts And Managing Court Resources 

Published on 17 June, 2022 | Louise Butcher

Those involved in Family Court cases involving children are under no illusion from the very start as to what their sole focus should be.

After all, the opening lines of the legislation which governs such proceedings – the Children Act 1989 – states that: “the child’s welfare shall be the court’s paramount consideration” (https://www.legislation.gov.uk/ukpga/1989/41/section/1).

That should always be the case even despite the workload handled by the family courts reaching what the President of the Family Division of the High Court described in March as an “all-time high” (https://www.judiciary.uk/wp-content/uploads/2022/03/A-View-March-2022.pdf).

Just weeks after Sir Andrew McFarlane delivered that stark assessment, further illustration came in the shape of figures published by the Ministry of Justice (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2021/family-court-statistics-quarterly-october-to-december-2021).

They revealed that 54,638 cases were dealt with in the family courts alone during 2021.

Even though that marked a two per cent drop on the year before, the MoJ data showed that cases were taking longer than ever to resolve. On average, private children’s law cases took 44 weeks to reach a final order – nine weeks more than in 2020.

With an overall aim “tightening up good practice” in order to make family courts more efficient, Sir Andrew issued advice about how improvements might be made.

One aspect of court business which attracted his attention were what are known as finding of fact hearings.

They allow for examination of domestic abuse allegations which might impact on childcare arrangements.

My colleague Katie Welton-Dillon wrote about their significance last December following a fact-finding hearing involving the former Government minister Andrew Griffiths (https://hallbrown.co.uk/finding-of-fact-domestic-violence-and-public-interest/).

By their very nature, finding of fact hearings are very detailed and, therefore, take time and effort. As a result, they can slow the process of trying to arrive at a resolution on matters affecting a child’s well-being.

After a relatively brief review – led by the Court of Appeal judge Lady Justice Macur – of how fact-finding hearings currently operate, Sir Andrew McFarlane has now issued guidance as to how they might function even more expediently – and, in fact, whether they are needed at all in some circumstances (https://www.judiciary.uk/announcements/fact-finding-hearings-and-domestic-abuse-in-private-law-children-proceedings-guidance-for-judges-and-magistrates/.

As he makes clear, management of court time is very much of the essence (“Make every hearing count”).

Perhaps most eye-catching of all is his observation to the judiciary that “there is a time and a place to determine allegations of domestic abuse, but it may not be in your court”.

His guidance, though, should not in any way be interpreted as diminishing the seriousness with which the courts or family lawyers regard such claims.

Sir Andrew simply reinforces the central issue that “unless it will be relevant to…the welfare of the child, do not allow the court to be used to litigate such allegations”.

The guidance document is immensely detailed, containing 28 points which should be borne in mind by Family Court judges and magistrates.

Fact-finding hearings can actually make the process of establishing a resolution much more difficult because they risk generating more stress or tension between parents – something which in itself can affect the relationship they have with a child.

By setting out what should be taken into account in weighing up whether a fact-finding hearing is necessary or “proportionate”, the guidance is in my opinion, very helpful for parents and family lawyers as well as for the judiciary.

The rigour which Sir Andrew insists should be applied to the decision-making process is such that some fact-finding hearings which took place in the past might not have done had the new guidance been in place.

He underlines how the question of whether holding such a hearing should be based on the individual merits of each case.

Above all, the advice stresses that the interests of the child should remain at the heart of these deliberations.

That is the critical point. If we can resolve disputes between parents about childcare and deal with important issues which may arise in a timely and appropriate manner, that will be to everybody’s benefit and may help reduce the strain on the Family Court.