Fact finding is a process by which the Court determines whether allegations made by one party are found, or not found. The outcome is what is known as a binary one, namely that the Court will determine that an event either happened, or it did not happen.
Fact finding is a process which will establish the factual framework of a case in the context of which the Court will make decisions.
The Law in relation to the framework of fact finding hearings is very clear and includes the following principles:
- The burden of proof falls on the person who is making the allegations – it is for them to produce the evidence that satisfies the Court that the allegations are found.
- The standard of proof on which the Court operates is the balance of probabilities – is it more likely, than not, that the particular event occurred.
- The Court must take into account all of the evidence – and it must be evidence – what the Court cannot do is draw inferences or rely on suspicion and / or speculation. The Court must look to the evidence that it has.
It is, therefore, essential in approaching any fact finding hearing that the evidence that is presented is as clear and focussed upon the issues that the Court is asked to make findings on, as possible.
If, for example, a parent is facing allegations within a fact finding hearing, then they need to ensure that they are fully prepared to address the allegations in a coherent way that is (if possible) supported by relevant evidence. Likewise, if one is acting for the party that is seeking the findings of fact, then they must particularly (given the burden is on them to prove the allegations and not on the other party to disprove them) focus on the allegations that are being sought to be found and what is the relevant evidence in support of those allegations.
It, of course, must be said that the allegations themselves need to be relevant to what the Court, ultimately, has to make decisions about.
Andrew Barton is a partner in the family law team at Stephens Scown in Exeter. To discuss gender bias in divorce or any other divorce issue contact Andrew, please call 01392 210700 or email enquiries@stephens-scown.co.uk
We at Stephens Scown have significant experience of representing those who are both seeking to pursue findings being made against another party and also those who are facing allegations within a fact finding hearing.