Fact Finding Hearings in the Family Courts
Fact Find Hearings – Burden and Standard of Proof in the Family Courts
Fact-finding hearings are often necessary in both public children proceedings (care proceedings) and in private children proceedings between family members.
It will be considered necessary for the Court to make a fact-finding determination when one party (or in care proceedings the Local Authority) makes an allegation or allegations against another party. Allegations could be of domestic abuse, child abuse, or radicalisation and when they are denied; the Court will consider whether determining if those allegations are true is necessary before making a final decision in relation to the child’s welfare.
Fact finding hearings in care proceedings often relate to allegations of physical or sexual abuse within the family in the proceedings. Whatever the allegations, the key questions for the Court are usually: (a) What happened e.g. what inflicted the injury, or how was it caused? and (b) If it was inflicted, by whom?
Burden of Proof
The burden of proof lies with the Local Authority. It is the Local Authority that brings the proceedings and identifies the findings they invite the Court to make.
Therefore, the burden of proving the allegations rests with them. As Lord Hoffman stated in Re B (Care Proceedings: Standard of Proof) “..If a legal rule requires a fact to be proven (a ‘fact in issue’), a Judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not…”
There are often cases where there is no explanation as to how an injury occurred. And no memorable or witnessed event which suggests an accidental explanation either.
In those cases where the medical evidence suggests that it is unlikely for an injury to have been caused accidentally; it can be tempting for the Judge to jump to the conclusion that it must have been inflicted by a parent. However, it is in such cases that the Court must keep firmly in mind that the burden of proof always remains on the party who makes and brings the allegation.
The inability of a parent to explain an event cannot be relied upon to find an event proved. The burden of disproving a reasonable explanation put forward by the parents also falls on the Local Authority.
Standard of Proof
The standard of proof in the Family Courts is the balance of probabilities. This test was explained by Denning J in Miller v Ministry of Pensions in 1947 as follows “If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged. But, if the probabilities are equal, it is not.” How this test applies in a non-accidental injury case was considered in 2008 in Re B “If the Local Authority proves on the balance of probabilities that E and/or J have sustained non-accidental injuries inflicted by one of their parents, this Court will treat that fact as established and all future decisions concerning their future will be based on that finding. Equally, if the Local Authority fails to prove that E or J was injured by their parents; the Court will disregard that application completely.”
It is the same test, however serious the allegations and their consequences for the family involved. As Baroness Hale put it in Re B, “ for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies…”
Different standard for criminal proceedings
This is a very crucial difference from how factual determinations are made in the Criminal Court. In the Criminal Court allegations can only be found to be true if the Court is sure ‘beyond reasonable doubt’.
This difference in the standard of proof means that often the Family Court has to make factual determinations. Even where a Criminal Court has already considered the same allegations. For example, the Criminal Court may have acquitted a parent for harming their child because of a technicality, or a problem with the evidence which meant that there was an element of ‘reasonable doubt’ about their guilt.
However, the Family Court could still find that parent to have harmed the child if it considers that, on the evidence, it is more likely than not that the parent harmed the child.