How a court makes decisions in a Fact Finding Hearing

It is sadly not at all unusual for both parents involved in a dispute over arrangements for their children to make adverse allegations about the behaviour of the other parent.

And sometimes the allegations may be invented or exaggerated, either to support that party’s case, or to undermine the allegations made by the other party.

Of course, the court will have to determine the truth of the allegations, if they are relevant to the issues. How it does this was illustrated in a recent Family Court case.

The case concerned an application by a father for the court to decide how much time his three children should spend with him. He alleged that the mother had pursued a campaign of parental alienation, to turn the children against him. He therefore asked the court to order the mother to cease the campaign, and to take steps to remedy the effects of the parental alienation, so that his relationship with his children could be healthier and more normal.

In response, the mother alleged that the father had inappropriately chastised the children, that he exercised coercive and controlling behaviour to the mother in and surrounding contact, that he displayed emotionally dysregulated behaviour in the presence of or towards the children, and that he abused or intimidated the children.

In order to determine the truth of these allegations the court fixed a ‘fact-finding’ hearing, to hear the evidence of both parties, and decide where the truth lay (there were in fact two such hearings, the findings made on the first one having been set aside on appeal).

As the judge explained at the hearing, each parent had to prove the allegations they made, on a balance of probabilities.

She said that the evidence might come from a number of sources, but the parents’ evidence was of course of the upmost importance. It is therefore essential that the court forms a clear assessment of their credibility and reliability. Each parent considers that the other parent is not telling the truth about some of the events. However, witnesses can lie for many reasons, and their recollections of events may vary. Further, just because they are found to have lied about one thing does not mean that they have lied about everything.

She found that the mother’s allegations were true and the father’s allegations about parental alienation were not true.

Obviously, these findings would be taken into account at the final hearing, when the court decides how much time the children should spend with the father.

You can read the full judgment here.

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