Fact find 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 where one party (or in care proceedings the local authority) makes an allegation or allegations against another party, for example of domestic abuse or child abuse which are denied, and the court considers that determining whether or not those allegations are true is necessary before the court can make 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?

Evidence

Findings of fact must be based on evidence. LJ Munby observed in Re A (A child) (Fact Finding Hearing: Speculation) (2011) “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation”.

Each party preparing for a fact finding hearing should consider and analyse what evidence is required. The Local Authority in care proceedings must prove the fact on which it intends to rely. Much of the evidence from the social work files may be second or third hand hearsay. Hearsay evidence can be relied on in family proceedings. However first hand evidence given by a witness in the witness box under oath will be more compelling and is likely to be given more weight.

When considering cases of suspected child abuse, the court must consider all the evidence and furthermore consider each piece of evidence in context of all the other evidence. As Dame Elizabeth Butler-Sloss, President observed in Re U, Re B 9 (Serious Injuries: Standard of Proof) [2004] EWCA Civ. 567, the court “invariably surveys a wide canvas”. In Re T [2004] EWCA Civ. 558, [2004] 2 FLR 838 at paragraph 33 she added: “Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to a conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof….”

The Judge will have to consider lots of evidence which may come from parents, other lay witnesses, medical and other experts. The Judge must weigh each in the balance before reaching a conclusion on the facts.

Evidence from Experts

In proceedings involving allegations of non-accidental injury there will be expert evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. In A County Council v KD & L [2005] EWHC 144 Fam at paragraphs 39 to 44, Mr Justice Charles observed: “It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.”

Expert witnesses often provide vital evidence to the court, but it is important to understand that they are only to provide the court with their opinion, and not to decide the case. In Re B (Care: Expert Witnesses)[1996] 1 FLR 667, Ward LJ stated: “The expert advises but the Judge decides. The Judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the Judge suspends judicial belief simply because the evidence is given by an expert.”

In a case with a number of experts, such as a baby shaking case, the court must be careful to ensure that each expert keeps within the bounds of his or her own expertise and defers where appropriate to the expertise of others.

Evidence from the Parents

The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them

Lies

It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that the witness has lied about some matters does not mean that he or she has lied about everything. Often the court is faced with a witness that it may think has lied. It may be that it is a provable or admitted lie, but not necessarily in relation to the central issue that the court has to determine. In general terms, if a court concludes that a witness has lied about one matter, it does not follow that he or she has lied about everything.

Mr Justice Charles in A Local Authority v K, D, L [2005] EWHC 144 (fam) at para 26 considered the relevance of this in family case. “As appears therefrom, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. Also, I accept there may be many reasons why a person may not tell the truth to a court concerned with the future upbringing of a child. Further, I of course recognise that witnesses can believe that their evidence contains a correct account of relevant events, but be mistaken because, for example, they misrepresented the relevant events at the time or because they have over time convinced themselves of the account they now give.”

Identifying a Perpetrator

When seeking to identify the perpetrators of non-accidental injuries, the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator: see North Yorkshire County Council v SA [2003] 2 FLR 849.

In order to make a finding that a particular person was the perpetrator of a non-accidental injury, the court must be satisfied on the balance of probabilities.

It is always desirable where possible for the perpetrator of a non-accidental injury to be identified, both for the public interest and in the interests of the child, although, where it is impossible for a judge to find on a balance of probabilities, for example, that parent A rather than parent B caused the injury, then neither can be excluded from the pool and the judge should not attempt to do so.