This page explains the different types of hearing that you might have in private family law cases, including the First Hearing Dispute Resolution Appointment, fact finding hearings and final hearings.
Following a series of changes introduced on 22nd April 2014, the way in which family cases are dealt with by the courts has changed dramatically.
The County Courts and Magistrate Courts are now combined and are called the Family Court. You will be asked to attend your local Family Court which may be at your Local or Magistrate courts.
You should have attended a Mediation Information Meeting (MIAM) – please see our page on Mediation for more information.
What do the Family Courts do?
The Family Courts in England make decisions primarily about children and finances. When a relationship breaks down and individuals are not able to agree how finances should be divided or children should be brought up very often they will ask the courts to make a decision.
In the recent years it has become much more common to use alternative forms of dispute resolution instead of going to court. The method you will hear most commonly talked about is Mediation. There are other methods and these are commonly used in cases involving financial disputes following a divorce.
First Hearing Dispute Resolution Appointment
A First Hearing and Dispute Resolution Appointment (FHDRA) is the first court hearing after an application has been made to court in private family law. It is held to assist the court in identifying issues between the parties at an early stage and to see if it is possible for the parties to reach an agreement. A Cafcass Officer should also be present.
You can set out your case in a Position Statement. This is a useful document which is not
obligatory (unless ordered by the court) but can give the court a brief outline of your position in advance of the hearing. A position statement may help bring a case to an early conclusion if the other party accepts your position. It can also be used to give you a brief plan of what you want to achieve at the hearing. You should provide a copy of this statement to the other side in order to help progress the situation.
The judge (or magistrates) and the Cafcass Officer will attempt to assist the parties to reach agreement. Sometimes, there will be a mediator in the court building who might also assist the parties, and if the parties have not yet attempted mediation, the court may order that they do so before court proceedings commence.
Prior to the hearing starting, Cafcass should have prepared a ‘Schedule 2 Letter’ which should be shared with both parties (unless doing so would put either party or the children at risk and/or the document contains information which is sensitive of which the other party is unaware). The Schedule 2 Letter will include background checks on the parties, who the parents are and who the children live with.
If the parties can reach agreement at the FHDRA, a final order may be made setting out the details of the agreement, if the court deems it to be in the children’s best interests.
If the parties cannot reach agreement, the court will seek to determine the areas where they disagree and the reasons why.
If the case concerns contact and/or residence, and serious allegations are made, the judge may decide not to permit contact while matters are investigated. This does not mean that the court has made a final decision. The judge/magistrates and Cafcass may propose that contact be supervised and/or at a contact centre while matters are investigated. You too might suggest this in these circumstances. If there are no serious concerns, the court may order that there be contact immediately pending a final order at a future hearing (after any investigations are carried out, and evidence is submitted and heard).
Case management decisions which should be considered at the FHDRA include:
- What, if any, issues are agreed and what are the key issues to be determined?
- Should the matter be listed for a fact-finding hearing?
- Are there any interim orders which can usefully be made (e.g. indirect, supported or supervised contact) pending Dispute Resolution Appointment or final hearing?
- What directions are required to ensure the application is ready for a Dispute Resolution Appointment or final hearing – statements, reports etc?
- Should the application be listed for a Dispute Resolution Appointment (it is envisaged that most cases will be so listed)?
- Should the application be listed straightaway for a final hearing?
- Judicial continuity should be actively considered (especially if there has been or is to be a fact finding hearing or a contested interim hearing).
Dispute Resolution Appointment
The Court shall list the application for a Dispute Resolution Appointment (‘DRA’) to follow the preparation of section 7 or other expert report if this is considered likely to be helpful in the interests of the child.
At the DRA the Court will –
- Identify the key issue(s) (if any) to be determined and the extent to which those issues can be resolved or narrowed at the DRA;
- Consider whether the DRA can be used as a final hearing;
- Resolve or narrow the issues by hearing evidence;
- Identify the evidence to be heard on the issues which remain to be resolved at the final hearing;
- Give final case management directions including:
- Filing of further evidence;
- Filing of a statement of facts/issues remaining to be determined;
- Filing of a witness template and / or skeleton arguments;
- Ensuring Compliance with Practice Direction 27A (the Bundles Practice Direction);
- Listing the Final Hearing.
Fact Finding Hearing
A Fact Finding Hearing is a type of court hearing that considers the evidence surrounding allegations, and the court will make a decision as to whether alleged incidents did or did not happen. Evidence is heard, which will normally include parties being cross-examined. After having heard the evidence, the judge will decide whether the alleged incidents happened or not.
Most commonly, these allegations concern domestic abuse. Domestic abuse includes neglect, emotional and physical harm and violence.
When making a decision the judge has to consider the allegations made by each side. It is for the person making the allegations to prove that they are true. The Judge will consider on the balance of probabilities whether the allegations are true or not. This means that the judge will consider whether it is more likely than not that the allegations are true.
In preparation for a Fact Finding Hearing the person making the allegations will be asked to send a list of the allegations to the court. The list should be:
- signed and dated
- each incident should be numbered and set out in date order stating the date of the incident and details of what happened and where
- details of any witnesses to the incident and involvement of the police and/or medical services
- the list should contain a statement that it is true.
The person against whom the allegations are made will then be asked to respond to the allegations within a set timeframe. You should respond to each allegation in turn, setting out your account of the incident or stating that the allegation is denied.
You will both be asked to make written statements based on your evidence setting out what you wish to say to the court. You can also have witnesses give evidence with the court’s permission.
At a Final Hearing the Judge will consider all of the available evidence, this will include evidence provided by the parties, any relevant Cafcass reports and information that has been provided by the Local Authority. If there has been a Fact Finding hearing the Judge will also take into account any findings made in the course of those proceedings.
Using all of this information the Judge will assess and come to a decision guided by the welfare of the child involved. Judges will then use the evidence before them in conjunction with the ‘welfare checklist’ in order to come to a decision which is in the best interests of the child.
The Judge may decide to make no order, or may consider that a Child Arrangements Order detailing residence and/or contact arrangements is necessary. There is an example of a Child Arrangements Order here.
Attendance of parties at court
Attendance at court hearings is not compulsory but it is strongly encouraged so that each party has a chance to put forward their argument.
The Family courts can proceed with a court hearing even if you are not in attendance at the court.
What if I am unable to attend court and I want to adjourn?
Firstly, we would advise that you seek the consent of other parties to the case in relation to the proposed adjournment. If the consent of other parties is obtained, this will support the application to adjourn the hearing.
Next, we would advise to contact the court at which the proceedings are held and informally request that the adjournment be made.
However, generally it is the case that the court require that a C2 form be submitted to formally request an adjournment. This C2 form would need to be submitted in conjunction with documentation from the other parties which establish consent (where given).
The decision to postpone a court hearing is solely at the discretion of the Judge. The courts are encouraged to deal with cases swiftly and efficiently as delay can have a detrimental impact on all parties and, in particular, any children that may be involved in the proceedings.
If the other parties have not given consent to the adjournment, the court will ascertain their views so as to ensure that no one is disadvantaged by the courts decision.
Factors which will be considered by the Judge in deciding whether to postpone will include:
- What are the reasons given for adjourning the hearing.
- The stage of proceedings – Is the first or final hearing.
- The impact that the adjournment will have on all other parties, professionals, children, witnesses.
- How far in the future is the next available date should the adjournment be granted.