Split decision

When lecturing on children law last year, a family practitioner told me he was afraid to take a holiday because of the changes which greeted him on his return. So I emphasised the importance of distinguishing the protocols from the programmes, the interim guidance from the operating priorities, the practice directions from the best practice guides, the Adoption and Children Act from the Children and Adoption Act, the safeguarding checks from the safeguarding analyses, the contact activities directions and conditions from the risk assessments'¦

If all that was confusing, at least the procedure for domestic violence was now clear. Or so I thought. Apart from Re L, there was the practice direction of 14 January 2009 which appeared to imply the necessity of a separate preliminary finding of fact hearing on disputed relevant allegations of domestic violence before the court could determine residence or contact. The logic was impeccable. Opposing advocates appearing at a first appointment would sing from the same hymn sheet. Serious allegations were made and denied. Cafcass joined in. Any recommendations were impossible until findings were made. A suspicion that in some instances this was a gravy train for the unscrupulous or a way out for Cafcass from providing a report had to be set aside.

Damaging delays

But doubts lingered and grew. Cases were adjourned for long periods to enable these hearings to take place. The delay was terrible for the parties and for the children. Court lists became clogged up. The hearings exacerbated even further bitterness between the parties. Courts began to look more carefully to determine whether or not these separate hearings were necessary. To the relief of many, the Court of Appeal in Re C [2009] EWCA Civ 994 upheld the refusal by Judge Copley of the mother's application for a separate fact-finding hearing. The reasons were that the historic events had been the subject of conviction in the criminal justice system and that contact was underway and moving in a broadly satisfactory direction. Thorpe LJ pointed out that the cost to the taxpayer of funding the family justice system was 'worryingly high' and that 'judges have an obligation to husband the judicial resources of the court'.

Again, in W (Children) [2009] EWCA Civ 644, Wall LJ said: 'We all know that findings of fact hearings are time-consuming and can cause delay. The judge who directs one, and the advocates who seek it, both owe a duty to the children in the case and to the system itself to ensure that such a hearing is strictly necessary, and that, in the terms of the overriding objective such a hearing, where required, addresses appropriate issues and is given an appropriate share of the court's resources.'

Taking control

And so, at the end of May 2010, the new president of the Family Division introduced welcome guidance in relation to split hearings. Without in any way minimising domestic abuse or its effect on children, the guidance clearly states: 'Judges and magistrates should always remember that thedecision to direct a split hearing or to conduct a fact-finding hearing is a judicial decision.

It is not a decision for Cafcass or for the parties'¦ Thus the court should not direct a fact-finding hearing simply because the parties agree that one is necessary or because Cafcass says that it cannot report without one. Such considerations are, of course, to be taken into account, but they are not conclusive. In any event, the focus of any report is a matter for the court.

'Judges and magistrates should always remember that a fact-finding hearing is a working tool designed to assist them to decide the case. Thus a fact-finding hearing should only be ordered if the court takes the view that the case cannot properly be decided without such a hearing.

'Even when the court comes to the conclusion that a fact-finding hearing is necessary, it by no means follows that such a hearing needs to be separate from the substantive hearing. In nearly every case, the court's findings of fact inform its conclusions. In my judgment it will be a rare case in which a separate fact-finding hearing is necessary.'

Avoiding conflict

What a relief! Of course, every judge at first instance regularly makes factual findings in a case where the evidence is contested. But at least the guidance from the president has pulled us back from unnecessary confrontational battles. With our ever-changing society and the increasing speed by which information is disseminated, I believe that future changes will continue unabated '“ although I trust that members of the profession will still feel able to take their holidays.

The recent review body set up to consider the future of family justice has indicated that it is looking at how 'the justice system (can) focus more on helping family members to reach agreement rather than pitting them against each other'. That is welcome. District judges will assist and cooperate with the review. The problem is how to balance that laudable aim with the necessary protective measures to assist the vulnerable and the safety measures to limit risk.