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Advocacy Section

Face the facts

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Joy Merriam discusses how solicitor advocates can successfully conduct a fact-finding hearing in family cases

Despite the guidance of the then president of the Family Division, Sir Nicholas Wall, back in 2010 as to the necessity of fact-finding (FoF) hearings in family cases (also stressed in subsequent authorities, one of which, A Local Authority v K and N [2011] EWHC 1156 (Fam), I was fortunate to be involved in as solicitor advocate for the child), there seems to be an increasing number of these hearings listed in child care cases, and private law cases where domestic violence is an issue.

Identify which witnesses you need to challenge. As always, less is more

Rather than have findings made against your client (which can have serious long-term consequences), it is always worth trying to argue, as a preliminary issue, the necessity of a FoF hearing – the test being whether the court is likely to be able to make findings and, more importantly, whether the welfare planning for the child requires it.

Once a FoF hearing is listed, many solicitor advocates feel they are not up to the task and instruct counsel. Apart from the obvious financial consequences of doing so, the client loses continuity of representation. It is true to say a FoF hearing does require a slightly different style of advocacy, more akin to a criminal trial, but it is well within the capabilities of solicitor advocates who conduct contested interim and final hearings.

As is often a theme in my articles, preparation is the key. You need to decide, realistically, what is the best you can achieve for your client. Is it total exoneration, or simply to keep others in the ‘pool of perpetrators’, so the finger does not point at you? Often, there are concurrent criminal proceedings in cases of physical or sexual abuse. Typically, the police will await the outcome of the FoF hearing before making a decision whether to bring charges or not.

This can cause problems for your client, because the different standard of proof is the only balance of probabilities in a FoF hearing. In criminal trials, the defence lawyer simply has to raise a doubt, while in a FoF hearing, the test is whether something is more likely than not - which can be harder to rebut. Your client’s oral evidence may also be disclosed in a subsequent criminal trial. These are issues to bear in mind as you prepare.

Unlike a criminal trial, you will have a schedule of proposed findings (often referred to as a Scott Schedule) to closely identify each finding sought against your client and the evidence relied on. If there is a child witness against your client, you will have to view the achieving best evidence (ABE) (if any) interview and decide if you require the child to give evidence. In accordance with W (Children) [2010] UKSC 12, this will usually be dealt with as a preliminary issue and, unless the child actively wants to give evidence, will be a rare occurrence.

In looking at the Scott Schedule, identify which witnesses you need to challenge. As always, less is more. Be wary of lengthy challenges to expert witnesses who are unlikely to change their views and upon whom the court places reliance. There are fewer experts now in view of Part 25 of the Family Procedure Rules, so it may be necessary to simply put your client’s case if the reports are not helpful.

In most FoF hearings, the most crucial evidence is that of your client, whose credibility will be assessed by the judge, particularly when there is a factual conflict between the parties. Careful preparation of your client is needed. Make sure they refresh their memory of their statements. Explain to them the general structure of your examination-in-chief (for example,’I will start by asking you about your relationship with X’), so they are not over-anxious, and can get into the habit of talking. Keep your questions short and focused and do not lead. While judges are more lax in this regard than in the criminal courts, your client’s words carry more weight than yours. Take a careful note of cross-examination and deal with any ambiguities by re-examination.

Finally, always have your mind concentrated on your closing submissions and flag up any useful evidential points which support your case for your closing submissions. These should be succinct and clearly referenced. Most judges appreciate a ‘bullet-point’, skeleton argument.

Most importantly, have confidence in yourself and your abilities. No one will know your client’s case - or, indeed, your client – better than you do.

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