If you’re involved in family law proceedings and you feel it’s appropriate to request a fact-finding (FoF) hearing on your client’s behalf, you should do so.
Many solicitor advocates feel they’re not up to the task of representing their client at a FoF hearing and instruct counsel instead. This has a financial impact and means the client loses continuity of representation.
While it’s true that a FoF hearing requires a style of advocacy similar to a criminal trial, it’s well within the capabilities of solicitor advocates who conduct contested interim and final hearings.
Preparation is the key. Have confidence in yourself and your abilities. No one will know your client’s case – or, indeed, your client – better than you do.
Deciding the best outcome for your client
Decide, realistically, what’s 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 them?
There are often concurrent criminal proceedings in cases of physical or sexual abuse. The police will typically await the outcome of the FoF hearing before deciding whether to bring charges.
This can cause problems for your client, because there is a different standard of proof in a FoF hearing than there is in a criminal trial.
In criminal trials, the defence lawyer simply has to raise a doubt. 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. Bear this in mind as you prepare.
Unlike in a criminal trial, you’ll have a schedule of proposed findings (often referred to as a Scott Schedule). This identifies each finding sought against your client and the evidence that’s being relied on.
If there’s a child witness against your client, you’ll have to view the achieving best evidence interview (if there is one) and decide if you need the child to give evidence. In accordance with W (Children)  UKSC 12, this will usually be dealt with as a preliminary issue. Unless the child actively wants to give evidence, they rarely do.
Looking at the Scott Schedule, identify which witnesses you need to challenge. As always, less is more. Avoid lengthy challenges to expert witnesses whom the court is inclined to trust and rely on.
Preparing your client
In most FoF hearings, the most crucial evidence is your client’s. The judge will assess their credibility, particularly when the parties disagree over the facts. Prepare your client carefully:
- make sure they revisit their statements and refresh their memory
- explain what will happen during your examination-in-chief – for example, “I’ll start by asking you about your relationship with X”. This can help them get into the habit of talking and stop them feeling anxious
- keep your questions short and focused and do not lead
Your client’s words carry more weight than yours. Take a careful note of cross-examination and deal with any ambiguities by re-examination.
Always be thinking about your closing submissions. Flag up any useful evidential points that support your case for your closing submissions. These should be concise and clearly referenced. Most judges appreciate a bullet point skeleton argument.