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Disputes about children: What happens following a separation when you are accused of being an unfit parent?

Here we explain the process of clearing your name and re-establishing contact with your children.

There is a common misconception that mothers are favoured as primary carers of children over fathers but, in fact, the Family Court presumes that both parents should be equally involved in their child’s life, as long as each parent does not put the child or the other parent at risk of suffering any harm.

After separation, parents must make important decisions about where their child(ren) will live and how they will spend time with each of them. This can never be easy but, in most cases, this is achieved amicably with no or only some involvement of Solicitors and the Family Court. However, the same cannot be said in a case where one parent makes serious allegations against the other which are suggestive of actual harm or a risk of harm being caused to the child(ren) or the accusing parent.

In children proceedings, the Court must identify if allegations of domestic violence and abuse have been made by one or both parents, against the other, and consider the nature of these allegations. In cases involving serious allegations, it will be often be one parent’s ‘word’ against the other and therefore the Court must determine the veracity of the allegations which, if proven, are likely to affect the Court’s decision about the final arrangements which should be made in relation to the child(ren). This is achieved by conducting a ‘fact-finding hearing’.

A fact-finding hearing is a type of Court hearing where the Judge will consider the evidence surrounding allegations and the Court is required to determine whether the alleged incident did or did not happen. Prior to a fact-finding hearing, each parent will be directed to prepare detailed Witness Statements setting out their positions in relation to each allegation made and provide relevant supporting documentary evidence. This might include police reports, medical reports, reports from Schools, reports from the Local Authority and Witness Statements from third parties.

At the fact-finding hearing, the Court will consider all of the evidence and each parent (and any witnesses) may be required to given oral evidence by way of cross-examination. The burden is on the alleging party to prove that an alleged incident DID happen and not for the accused party to establish that the alleged incident did NOT happen. Once the evidence has been considered, the Judge presiding at the fact-finding hearing must decide, on the balance of probabilities, whether each allegation is a ‘fact’ or not (i.e whether it is more likely than not that each allegation is true). English law operates on a binary system. Either a fact is proven to the required standard of proof, or it is not. There is no grey area. If a fact is not proven, it is to be disregarded.

The fact-finding hearing is considered to be the most stressful stage of children proceedings. For the alleged victim, this will mean reliving past harrowing ordeals and then having their account challenged in cross-examination. For the accused party, there will be feelings of frustration by allegations that may have been purposely fabricated only to prevent them from having a meaningful relationship with their child(ren). Both parties are likely to feel immense pressure knowing that the outcome of the fact-finding hearing will inevitably dictate how the rest of the case proceeds.

At ORJ, we recently represented a client who, after a 10-year long marriage that resulted in the birth of their daughter, separated from his wife. Sadly, only months after their separation, our client’s soon-to-be ex-wife and mother of their daughter, made extremely serious allegations (including serious sexual violence) against our client. Given the nature of the allegations, the Court listed the matter for a fact-finding hearing but, given the severity of the allegations, the Court erred on the side of caution and made no interim arrangements for our client’s daughter (aged 5) to spend time with him. After many intense months of preparing Witness Statements, collating evidence, scrutinising the evidence filed by the other side and preparing our client as to how to best give oral evidence in a bid to clear his name, the fact-finding hearing was soon upon us. Having secured the right Counsel representation and after an intense, emotional and stressful three-day fact-finding hearing, the Judge found none of the allegations made by the mother to be proven. The Judge stated:

“ I am invited by (Counsel for the father) to make a positive finding, not just that the mother’s allegations have not been proven but that they have been fabricated by the Respondent mother to position herself within these proceedings, that in essence she has lied to the Court. I am satisfied on the totality of evidence before this Court and for all the reasons I have set out in length throughout the judgment that on the balance of probabilities these allegations have been fabricated for the purposes of these proceedings.”

Contact was reinitiated between our client and his daughter very soon after and has now progressed to shared-care arrangements. Needless to say, our client was thrilled!

To arrange a free, confidential discussion with our family law team, please call us on: 01785 223440.