A fact-finding hearing is a hearing in family proceedings in England and Wales at which the court decides whether disputed allegations of fact, most often allegations of domestic abuse, are true. In private law children cases it is governed by Practice Direction 12J, which requires the court to decide “as soon as possible” whether such a hearing is necessary “to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37”, for any final order, or for consideration of a domestic abuse intervention.[1] The Court of Appeal has held that “not every case requires a fact-finding hearing even where domestic abuse is alleged”: the test is whether findings are necessary, relevant and proportionate to the decision the court has to make about the child.[2][3]
The hearing is decided on the civil standard, the balance of probabilities, “neither more nor less”.[4] The alleged victim and alleged perpetrator each give evidence and may be questioned, but since 21 July 2022 a party may not cross-examine in person a witness who is the victim or alleged victim of their abuse, and the court may appoint a qualified legal representative to put the questions instead.[5][6] At the end the court “must record its findings in writing in a Schedule to the relevant order”, and those findings govern how the case proceeds: they shape any section 7 report, the welfare checklist analysis and the final order.[1] Cafcass reported that almost two thirds of the private law cases in which its work was ordered in 2024-25 required an assessment of harm from domestic abuse.[7]
Definition and purpose
A fact-finding hearing separates the question “what happened?” from the question “what arrangements are best for the child?”. It is held where an allegation is disputed and the answer matters to the second question. Practice Direction 12J explains why: under section 1(3)(e) of the Children Act 1989 the court must have regard to “any harm which he has suffered or is at risk of suffering”, and where abuse is alleged the court cannot assess harm, or ask Cafcass to assess it, without first deciding whether the abuse occurred.[8][1] The hearing is therefore instrumental: findings are made not to punish or vindicate a party but to give the court and Cafcass a factual foundation for the welfare decision.[1]
Practice Direction 12J defines the conduct in issue widely. “Domestic abuse” carries the meaning in the Domestic Abuse Act 2021 and “includes physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse; psychological, emotional or other abuse”. “Coercive behaviour” is “an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim”, and “controlling behaviour” is a pattern of acts “designed to make a person subordinate and/or dependent”.[1] The Court of Appeal in Re H-N [2021] EWCA Civ 448 emphasised that where a pattern of coercive or controlling behaviour is alleged, “that assertion should be the primary issue for determination” rather than a list of isolated incidents.[2]
The term “split hearing” is sometimes used where the fact-finding is held as a separate hearing before the welfare hearing. Practice Direction 12J does not require a separate hearing in every case; the court may decide the facts and the welfare issues at the same hearing where that is proportionate, provided that the findings are made first and the welfare analysis then proceeds from them.[1] Fact-finding hearings also occur in public law cases, in enforcement applications under paragraph 21 of Practice Direction 12B, and in applications for a non-molestation or occupation order, but this article concerns the private law children context. See domestic abuse and family law for the wider framework.
Legal basis
There is no statutory provision creating the fact-finding hearing; it is a case management tool derived from the court’s duty under section 1 of the Children Act 1989 and structured by Practice Direction 12J, made under Part 12 of the Family Procedure Rules 2010. The current version of the practice direction is dated 28 April 2024.[1][8] Paragraph 5 requires the court, “at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment”, to consider whether domestic abuse is raised and, if so, to identify the factual issues, consider their relevance and give directions for them to be tried.[1] Paragraph 20 of Practice Direction 12B provides that “if the court considers that a fact-finding hearing is necessary it shall conduct that hearing in accordance with revised Practice Direction 12J”.[9]
The rules of evidence are in Part 22 of the Family Procedure Rules, which gives the court power to control evidence “by giving directions as to the issues on which it requires evidence”, provides that facts at a final hearing are proved by oral evidence, and provides that a served witness statement stands as the witness’s evidence-in-chief.[10] The prohibition on cross-examination in person is in Part 4B of the Matrimonial and Family Proceedings Act 1984 (section 31Q onwards), inserted by the Domestic Abuse Act 2021 and in force from 21 July 2022.[5][6] Two Court of Appeal decisions, Re H-N [2021] EWCA Civ 448 and K v K [2022] EWCA Civ 468, are the leading authorities on when a hearing should be held and how it should be conducted.[2][3]
When a fact-finding hearing is necessary
Paragraph 16 of Practice Direction 12J requires the court to determine “as soon as possible” whether a fact-finding hearing is necessary, and paragraph 17 lists the matters it must consider in doing so: the views of the parties and of Cafcass; whether there are admissions that provide a sufficient factual basis; whether there is evidence of abuse in other proceedings or in the material supplied for legal aid; whether the allegations, if proved, would be relevant to the orders sought; whether a separate hearing is necessary and proportionate; the nature of the evidence required; and whether the court can make a decision without a separate hearing.[1] If the court decides that a hearing is not necessary, “the order must record the reasons for that decision”.[1]
| PD12J 17 | Factor the court must consider |
|---|---|
| (a) | The views of the parties and of Cafcass or Cafcass Cymru[1] |
| (b) | Whether there are admissions by a party which provide a sufficient factual basis on which to proceed[1] |
| (c) | Whether there is other evidence available that provides a sufficient factual basis, including evidence from other proceedings or documents supplied to obtain legal aid[1] |
| (d) | Whether the factors in paragraphs 36 and 37 (the welfare factors applied where abuse is established) can be determined without a fact-finding hearing[1] |
| (e) | The nature of the evidence required to resolve the disputed allegations[1] |
| (f) | Whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court[1] |
| (g) | Whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances[1] |
| (h) | Whether the court can make a decision on the application without a separate fact-finding hearing[1] |
The Court of Appeal’s guidance refines these factors. In Re H-N, the President of the Family Division said that “not every case requires a fact-finding hearing even where domestic abuse is alleged”, and that the court must decide whether findings are relevant to the child arrangements order sought, whether they would provide a factual basis for a risk assessment, whether a hearing is proportionate, and whether other evidence would suffice.[2] In K v K, a case in which fact-finding had been ordered at the FHDRA on the basis of allegations raised in the Cafcass safeguarding letter rather than by the mother, the court held that “fact-finding is only needed if the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare”, and set aside findings that had been made after a hearing that should not have been held in the form it took.[3]
The practical consequence is that fact-finding is most likely where the allegations, if true, would bear on whether and how a child should spend time with a parent, for example allegations of violence towards the child or the other parent, of sexual abuse, or of a pattern of coercive control; and least likely where the allegations are historic, admitted, already the subject of a criminal conviction, or would make no difference to the arrangements sought.[1][2] Where a conviction exists, the finding of the criminal court is ordinarily accepted and no further hearing is needed on that allegation.[1]
Before the hearing
Paragraph 19 of Practice Direction 12J lists the directions the court should give once it has decided that a hearing is necessary. They include: identifying the key facts in dispute; deciding whether the hearing should be separate from or combined with the welfare hearing; directing a schedule or table of the allegations, which must include “details and/or examples of specific events and of any pattern of coercive and controlling behaviour”; directing witness statements from the parties and any other witnesses; obtaining documents from the police, health services and support agencies; considering whether oral evidence from third parties is needed; listing a pre-hearing review where appropriate; and considering “what support the alleged victim of domestic abuse is able to give and what support the alleged victim may require”.[1]
The schedule of allegations was for many years prepared as a “Scott Schedule”, a table with a column for each allegation, the response and the court’s finding. Re H-N recorded “effective unanimity” among those who addressed the court that the value of Scott Schedules had declined to the point where “in the view of some, they were now a potential barrier to fairness”, because reducing a pattern of behaviour to a small number of dated incidents “robbed” the court of the vantage point from which to see the behaviour as a whole.[2] The 2024 wording of paragraph 19, requiring the schedule to set out any pattern of coercive and controlling behaviour as well as specific events, reflects that criticism.[1]
Special measures are considered at this stage under Part 3A of the Family Procedure Rules: separate entrances and waiting areas, screens, video links, and the attendance of a supporter. Paragraph 28 of Practice Direction 12J directs the court to consider whether the provisions on the prohibition of cross-examination in person “are of relevance”.[1] The bundle is prepared under Practice Direction 27A, and the preliminary documents for a children hearing include a case summary, statement of issues, position statement, chronology and witness template.[11]
Representation and cross-examination
Since 21 July 2022 the Matrimonial and Family Proceedings Act 1984 has provided that “no party to the proceedings who has been convicted of or given a caution for, or is charged with, a specified offence may cross-examine in person a witness who is the victim, or alleged victim, of that offence”, and the reverse; parallel provisions apply where a protective injunction is in force and where the court is otherwise satisfied that cross-examination in person would diminish the quality of the evidence or cause significant distress.[5] Where the prohibition applies and there is no satisfactory alternative, the court “must invite the party to the proceedings to arrange for a qualified legal representative” and, if none is arranged, “must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the party”, paid from central funds and “not responsible to the party”.[6]
Legal aid for a solicitor in a private law children case requires both a means test and evidence of domestic abuse or child protection concerns; GOV.UK states that an applicant “will usually need to provide evidence to show that you or your children have experienced domestic abuse”, and lists acceptable sources including the courts, the police, a MARAC, social services, health professionals, refuge managers, domestic abuse support services and banks.[12] The means test from 6 April 2026 sets gross income at £2,657 per month, disposable income at £733 per month and capital at £8,000.[12][13] An alleged perpetrator who does not qualify is not entitled to legal aid for the hearing, which is why the qualified legal representative scheme exists. See legal aid and litigant in person.
What happens on the day
A fact-finding hearing is a trial of the disputed allegations. It is heard in private by the judge or lay justices who will, wherever possible, hear the rest of the case, since Practice Direction 12J requires hearings to be “conducted by the same judge or, wherever possible, by the same panel of lay justices”.[1] Both parties must attend.[14] After any preliminary matters, the party making the allegations usually gives evidence first: their witness statement stands as their evidence-in-chief, they may be asked supplementary questions with the court’s permission, and they are then cross-examined, either by the other party’s advocate, by a qualified legal representative appointed by the court, or, where no prohibition applies, by the other party in person, in which case the judge will often require questions to be put through the bench.[10][6] The other party then gives evidence in the same way, followed by any other witnesses, such as police officers, family members or professionals. Each side makes closing submissions and the court gives judgment, either at the end of the hearing or in writing later.[1]
Paragraph 28 states that the hearing “can be an inquisitorial (or investigative) process”, meaning that the judge may take an active part in questioning and is not confined to the issues as the parties frame them.[1] The Court of Appeal in Re H-N held that the family court should not approach the evidence through the concepts of the criminal law: the court “should be concerned to determine how the parties behaved” towards each other and the children, rather than whether the behaviour meets the definition of a particular offence, and there is no need to apply criminal definitions of, for example, rape.[2] Special measures, where directed, are in place throughout: the alleged victim may give evidence from behind a screen or by video link and will not be required to wait in the same area as the alleged perpetrator.[1]
The length of the hearing depends on the number of allegations and witnesses; one to three days is common in the Family Court, and the witness template prepared under Practice Direction 27A allocates the time.[11] The child does not give evidence except in rare cases and after separate consideration. Cafcass does not usually attend a fact-finding hearing, because its role is to assess welfare in the light of the findings rather than to give evidence about the disputed events; where a section 7 report has already been filed, its author may however be called on matters within it.[1]
The standard of proof and how facts are decided
The standard of proof is the civil standard. In In re B (Children) [2008] UKHL 35 Baroness Hale held that “the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less”, and that “there is no logical or necessary connection between seriousness and probability”; Lord Hoffmann put it in the same case that a fact “either happened or it did not”.[4] The burden of proving an allegation lies on the party making it. If the court finds an allegation proved it is treated as a fact for the rest of the proceedings; if it is not proved, the court proceeds on the basis that it did not happen. There is no third category of “unproven but suspected”.[4]
The court weighs the whole of the evidence: the parties’ oral evidence and its consistency with contemporaneous documents such as text messages, medical records and police logs; the evidence of third parties; and the inherent probabilities. Where a party has told lies, the court directs itself that people lie for many reasons and that a lie about one matter does not prove the truth of an allegation about another. Practice Direction 12J requires the court, “wherever practicable”, to make findings “as to the nature and degree of any domestic abuse which is established and its effect on the child, the child’s parents and any other relevant person”.[1] Following Re H-N, where a pattern of coercive or controlling behaviour is alleged the court makes a finding about the pattern, not merely about each incident relied on as an example of it.[2]
Possible outcomes
| Finding | Effect on the proceedings |
|---|---|
| Allegation proved | Recorded in the schedule of findings; treated as fact; the court applies the welfare checklist “in the light of” the finding, considers whether risk or safety assessments, treatment or an activity direction are needed, and must explain in any later order how the finding influenced the arrangements[1] |
| Allegation proved in part or in different terms | The court records what it finds happened; the family court is not confined to the labels used by the parties and need not apply criminal definitions[2][1] |
| Allegation not proved | Treated as not having happened for the rest of the case; the court proceeds to the welfare stage on that basis[4] |
| Pattern of coercive or controlling behaviour found | The primary finding where such a pattern is alleged; informs assessment of harm to the child and of the alleged perpetrator’s capacity to meet the child’s needs[2][1] |
| Findings of abuse against the parent seeking contact | Contact may be ordered only where the physical and emotional safety of the child and the resident parent “can, as far as possible, be secured before, during and after contact”; the court considers whether a section 91(14) order is appropriate to prevent further applications being used as abuse[1] |
| No findings sought or made against either parent | Case continues as an ordinary welfare dispute; the reasons for not holding a hearing, where none was held, must be recorded in the order[1] |
The findings are recorded “in writing in a Schedule to the relevant order”, and a copy of the judgment is provided to Cafcass or Cafcass Cymru so that the section 7 report can address it.[1] A party who disagrees with the findings may seek permission to appeal, but an appeal against findings of fact succeeds only where the judge’s conclusion was one that no reasonable tribunal could have reached on the evidence, or where the process was unfair; K v K is an example of the latter.[3]
After the hearing
Paragraphs 30 to 40 of Practice Direction 12J govern what follows. The court considers whether a section 7 report, or a further report, should be directed and on what issues, and the report should address the factors in paragraphs 36 and 37.[1][15] Subsequent hearings should be before the same judge or presiding justice unless delay would harm the child.[1] Paragraph 33 requires the court, “following any determination of the nature and extent of domestic abuse”, to consider whether expert safety and risk assessment, advice or treatment are needed, and whether to make an activity direction under sections 11A and 11B of the Children Act 1989, for example attendance at a domestic abuse perpetrator programme, which must be Cafcass-commissioned and approved.[1]
At the final welfare stage, paragraphs 36 and 37 require the court to apply the welfare checklist “in the light of any findings of fact, admissions; or domestic abuse having otherwise been established”, with particular regard to the harm suffered and the risk of future harm, and to consider the conduct of both parents towards each other and the child, the effect of the abuse on the child and the resident parent, the motivation of the parent seeking contact, and their capacity to change.[1] Paragraph 40 provides that “in its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision”, and that where abuse is proved but contact is nonetheless ordered the court “must always explain” why the order will not expose the child to risk of harm.[1] The case then proceeds to a Dispute Resolution Appointment or final hearing.
Statistics
The Ministry of Justice does not publish the number of fact-finding hearings held. Two related figures are available. Cafcass reported in its 2024-25 annual report that “almost two thirds of private law proceedings where work is ordered to Cafcass, require the harm children have experienced as victims of domestic abuse to be assessed”.[7] The Family Court Statistics Quarterly for January to March 2026 recorded 15,534 private law cases started, an average time to final order of 35 weeks, and that in 49 per cent of disposals neither party was legally represented, the last figure being relevant because the cross-examination provisions and the qualified legal representative scheme exist largely for unrepresented parties.[16] The 2020 Harm Panel received more than 1,200 submissions on the family courts’ handling of domestic abuse.[17]
Criticism and debate
The fact-finding hearing sits at the centre of a long-running debate about how the family courts deal with domestic abuse. The Ministry of Justice’s 2020 report Assessing Risk of Harm to Children and Parents in Private Law Children Cases, the Harm Panel report, identified four overarching barriers: resource constraints, in that “resources available have been inadequate to keep up with increasing demand”; a “pro-contact culture” in which “courts placed undue priority on ensuring contact with the non-resident parent”; an adversarial system “with parents placed in opposition on what is often not a level playing field”; and silo working between the family courts, the criminal courts and other agencies.[17] Among its recommendations were a bar on direct cross-examination in domestic abuse cases, since enacted, a review of the presumption of parental involvement in section 1(2A) of the Children Act 1989, and a pilot of an investigative approach, which became the Pathfinder courts.[17]
The appellate cases pull in two directions. Re H-N responded to concern that courts were failing to recognise patterns of coercive control by focusing on isolated incidents, and its guidance has led to schedules that describe patterns and to a more investigative approach.[2] K v K, a year later, responded to the opposite concern, that fact-finding was being ordered too readily, including on the strength of a safeguarding letter rather than on issues the parties themselves had identified, at the cost of delay that is itself harmful to children.[3] The Court of Appeal in Re H-N acknowledged the tension, warning that extending fact-finding hearings risks increasing delay in a way “entirely contrary” to the needs of children and parents, while insisting that the pattern of behaviour must be examined where it is alleged.[2] Practitioners continue to disagree about where the balance lies, and the question is decided case by case at the FHDRA.
History
| Date | Development |
|---|---|
| 11 June 2008 | In re B: the House of Lords confirmed the balance of probabilities as the single standard of proof for findings of fact in children cases[4] |
| 22 April 2014 | The Child Arrangements Programme (PD12B) came into force, cross-referring to PD12J for fact-finding[9] |
| June 2020 | The Harm Panel report recommended a bar on direct cross-examination and an investigative pilot[17] |
| 30 March 2021 | Re H-N: Court of Appeal guidance on patterns of coercive control, Scott Schedules and the necessity test[2] |
| 8 April 2022 | K v K: the Court of Appeal warned against ordering fact-finding where the allegations are not relevant to the welfare decision[3] |
| 21 July 2022 | Part 4B of the Matrimonial and Family Proceedings Act 1984 came into force, prohibiting cross-examination in person and creating the qualified legal representative scheme[5][6] |
| 28 April 2024 | Current version of PD12J, aligning the definition of domestic abuse with the Domestic Abuse Act 2021 and requiring schedules to set out any pattern of coercive and controlling behaviour[1] |
See also
- First Hearing Dispute Resolution Appointment – where the decision to hold a fact-finding is usually made
- Section 7 report – usually ordered in the light of the findings
- Dispute Resolution Appointment
- Final hearing
- Cafcass
- Litigant in person
- FL401: non-molestation and occupation orders
- Appeals
- Domestic abuse and family law – the wider legal framework
- Legal aid
- Domestic abuse and mediation
References
- Practice Direction 12J: Child arrangements and contact orders: domestic abuse and harm. Ministry of Justice. version of 28 April 2024. Accessed 5 September 2026.
- Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448. Find Case Law, The National Archives. 30 March 2021. Accessed 5 September 2026.
- K v K [2022] EWCA Civ 468. Courts and Tribunals Judiciary. 8 April 2022. Accessed 5 September 2026.
- In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35. House of Lords. 11 June 2008. Accessed 5 September 2026.
- Matrimonial and Family Proceedings Act 1984, section 31R: Prohibition of cross-examination in person: victims of offences. legislation.gov.uk. Accessed 5 September 2026.
- Matrimonial and Family Proceedings Act 1984, section 31W: Alternatives to cross-examination in person. legislation.gov.uk. Accessed 5 September 2026.
- Cafcass Annual Report and Accounts 2024-25. Cafcass. published 11 December 2025. Accessed 5 September 2026.
- Children Act 1989, section 1: Welfare of the child. legislation.gov.uk. Accessed 5 September 2026.
- Practice Direction 12B: Child Arrangements Programme. Ministry of Justice. Accessed 5 September 2026.
- Family Procedure Rules 2010, Part 22: Evidence. Ministry of Justice. Accessed 5 September 2026.
- Practice Direction 27A: Family proceedings: court bundles. Ministry of Justice. version in force 2 March 2026. Accessed 5 September 2026.
- Legal aid: domestic abuse. GOV.UK. Accessed 5 September 2026.
- The legal aid means test, explained. Legal Aid 60 (Family Legal Ltd). figures from 6 April 2026. Accessed 5 September 2026.
- Family Procedure Rules 2010, rule 12.14: Attendance at hearings. legislation.gov.uk. Accessed 5 September 2026.
- Children Act 1989, section 7: Welfare reports. legislation.gov.uk. Accessed 5 September 2026.
- Family Court Statistics Quarterly, January to March 2026. Ministry of Justice. 25 June 2026. Accessed 5 September 2026.
- Assessing Risk of Harm to Children and Parents in Private Law Children Cases: Final Report. Ministry of Justice. June 2020. Accessed 5 September 2026.
- National Domestic Abuse Helpline. Refuge. Accessed 5 September 2026.
External links
This article is part of Family Court Wiki, published by Family Legal Ltd. It is general information about the law of England and Wales, not legal advice. Last reviewed 6 September 2026. About this site and editorial policy · Report an error.