Fact-Finding Hearings: What Litigants in Person Should Understand

Fact-finding hearings are among the most stressful stages of a child arrangements case. Many litigants in person assume that if they describe events clearly and sincerely, the court will accept them. The law is more demanding than that, and outcomes are often mixed.

The burden sits with the person making the allegation. The person who says something happened must prove it on the balance of probabilities. The other party does not have to prove that it did not happen.

Each allegation is decided separately, then considered together. Courts examine each allegation on its own so that each is fairly tested. They then look at the whole picture, because patterns of behaviour can lose their meaning if incidents are viewed in isolation.

A sincere account is not the same as a proved one. A person can genuinely feel fear or hurt without that proving the specific words, acts or intentions they attribute to the other party. A conclusion drawn from someone else's behaviour may be understandable and still not be established.

Partial findings are common. A court may accept that some underlying events happened while rejecting the abusive meaning or pattern alleged. Being partly right does not mean the whole allegation succeeds.

Delay, imperfect memory and changing detail do not, on their own, make an account untrue. Abuse often happens in private, and a complainant's evidence can prove it without corroboration. However, courts look closely at material omissions. If a party leaves out central facts they knew about, that can seriously damage credibility.

Not proving something is not the same as finding it false. A finding of dishonesty requires more than insufficient evidence or honest mistake. It requires a finding, on the balance of probabilities, that the person knowingly said something untrue.

Records have limits. Medical notes, police reports and local authority referrals show that a report was made, when, and how the person appeared at the time. They are usually based on what the person said, because the professionals did not witness the events. They do not, by themselves, establish what happened.

Practical points for litigants in person

• Focus on what you saw, heard or did yourself, and give dates and specifics where you can.
• Disclose relevant material early. Late disclosure can damage credibility.
• Be cautious about describing what the other person intended. Describe what they said and did, and let the court draw the inference.
• Remember that the welfare stage comes after fact-finding, and that is where decisions about contact are made.

If you are preparing for a fact-finding hearing or supporting someone who is, seek advice from a qualified source. A McKenzie Friend can help you organise your evidence and understand the process, but the decisions and the presentation of your case remain yours. To find an independent McKenzie Friend, visit familycourtbridge.org.