FHDRA, DRA and Fact-Finding Hearings

+ What happens at an FHDRA?

The First Hearing Dispute Resolution Appointment is usually the first opportunity for the family court to consider the issues in a private children case after an application has been issued.

Before the hearing, Cafcass (Children and Family Court Advisory and Support Service) will commonly carry out safeguarding enquiries and provide information to the court. Depending on the circumstances, this may include checks with the police and local authority and discussions with each parent. The court can then consider whether there are safeguarding matters that need to be addressed before longer-term child arrangements can be considered.

The FHDRA is not usually a hearing at which the court hears substantial evidence and decides every disputed fact. Its purpose is generally to identify the issues, consider whether any part of the case can be agreed and decide what needs to happen next.

Where agreement is possible and the court considers the arrangements appropriate for the child, some or all of the case may be resolved. Where issues remain, the court can give directions about the evidence or information it needs. Depending on the case, this could include a report from Cafcass or another appropriate professional, written evidence from the parties or consideration of whether disputed allegations require a fact-finding hearing.

The court may also need to consider interim arrangements for a child while the proceedings continue. Any decision about an interim order depends on the circumstances and the child's welfare.

+ When is a fact-finding hearing needed?

A fact-finding hearing is not required simply because one parent makes an allegation and the other denies it. The court must consider whether deciding the disputed facts is necessary in order to deal properly with the welfare and safeguarding issues in the case.

This commonly arises where allegations of domestic abuse, controlling or coercive behaviour, violence or other conduct are said to affect the safety of a child or parent, or the arrangements the court is being asked to make.

In cases involving allegations of domestic abuse, the court considers the approach set out in Practice Direction 12J. The central question is whether findings about the disputed behaviour are necessary and proportionate before the court can decide what arrangements are consistent with the child's welfare.

That means the court may decide that some allegations require findings while others do not. It can also narrow the factual issues so that the hearing concentrates on matters that could materially affect the decisions still to be made.

Understanding that distinction is important when preparing your case. A fact-finding hearing should focus on relevant disputed facts, rather than becoming a general examination of every disagreement that arose during the relationship.

+ What happens at a fact-finding hearing?

Before the hearing, the court will normally have given directions setting out what evidence is required. Depending on the case, this may include written statements, a list or schedule identifying disputed allegations and responses, messages, photographs or other documents, together with relevant information obtained from organisations such as the police, medical services or local authority.

The precise evidence required varies from case to case. Part of preparing effectively is identifying what actually supports or answers the allegations the court has decided it needs to determine.

At the hearing, the court considers the evidence relating to each disputed issue. The parties may give evidence and be questioned about their accounts. The judge or magistrates then decide whether the relevant allegations have been proved on the civil standard of proof, which is the balance of probabilities.

A finding by the family court is not the same as a criminal conviction. Its purpose is to establish the factual basis on which the family court can make later decisions concerning the child.

Where domestic abuse or vulnerability affects someone's ability to participate fairly in the hearing, the court can consider appropriate participation arrangements and protections. There are also statutory restrictions on personal cross-examination in certain family proceedings, so the way questioning is conducted may need to be addressed before the hearing.

+ What happens after fact-finding?

Once findings have been made, the court considers what they mean for the remaining child arrangements issues.

A finding does not, by itself, determine the final arrangements for a child. The court must consider the child's welfare and the relevance of the findings to matters such as risk, the child's needs and the arrangements that can safely be made.

Further work may therefore be required. For example, the court may seek additional information or direct a report addressing the child's welfare in light of the findings. It may then list the case for a DRA or another hearing at which the remaining arrangements can be considered.

If allegations are not proved, the case can move forward on that factual basis. The court may still need to determine other disagreements between the parents before final arrangements can be made.

+ What is a DRA?

A Dispute Resolution Appointment normally takes place at a later stage of proceedings, once the court has more of the information it previously directed should be obtained.

By this point there may, for example, be a Cafcass report, completed evidence or findings from an earlier hearing. The DRA gives the court and the parties an opportunity to consider that material and see whether the remaining issues can be narrowed or resolved without a contested final hearing.

Where agreement can be reached, the court can consider whether the proposed arrangements are consistent with the child's welfare and whether an order should be made.

Where important issues remain disputed, the court can identify exactly what is left to decide and make directions for the next stage. This may include listing a final hearing at which evidence is heard and the court makes the decisions the parents have been unable to agree.

The DRA therefore differs from a fact-finding hearing. A fact-finding hearing decides disputed facts. A DRA looks at whether the case can be resolved once the relevant information and findings are available.

+ Preparing for your family court hearing

Good preparation starts with knowing what the particular hearing is intended to achieve. The order from the previous hearing or the notice listing the case should help identify what the court expects to deal with next.

For an FHDRA, the focus may be on the principal areas of disagreement, safeguarding information and what directions are needed. For a fact-finding hearing, preparation centres on the specific allegations the court has decided must be determined and the evidence relevant to them. At a DRA, the emphasis is more likely to be on the reports, findings and other information now available and whether any remaining issues can be resolved.

Your solicitor can also help you distinguish between information that is legally significant and material that may feel important personally but is unlikely to assist the court with the issue it has to decide.

Court orders should be read carefully. They may contain deadlines for statements, disclosure or other documents, and directions about how evidence is to be presented. If complying with a direction presents a difficulty, it is better to identify that issue early and consider the available procedural options.

+ Can the court make an order at an FHDRA?

Yes, it can. If appropriate arrangements are agreed, the court may consider making an order reflecting that agreement. It can also consider whether an interim order is needed while the case continues. Where significant factual or welfare issues remain unresolved, the court may instead give further directions before deciding the final arrangements.

+ Does every allegation of domestic abuse lead to a fact-finding hearing?

No. The court considers whether the disputed allegation is relevant to the welfare or safeguarding decisions it must make and whether determining it at a separate hearing is necessary and proportionate. Some cases therefore require a fact-finding hearing, while in others the court may decide that it can deal with the child arrangements without one.

+ What does the balance of probabilities mean at a fact-finding hearing?

The family court applies the civil standard of proof. In broad terms, the court decides whether it is more likely than not that the alleged event occurred. This is different from the criminal standard of proof and a family court finding is not the same as a criminal conviction.

+ What happens if allegations are proved at a fact-finding hearing?

The court considers the findings when deciding what should happen next in the child arrangements proceedings. Depending on their relevance and seriousness, further assessment or evidence may be required before final arrangements are determined. The findings form part of the factual background to the welfare decision. They do not automatically dictate a particular child arrangements order.

+ What is the difference between a DRA and a final hearing?

A DRA is primarily an opportunity to consider the information and evidence gathered during the case and determine whether the outstanding issues can now be agreed or narrowed. If important matters remain contested, the case may proceed to a final hearing. At a final hearing, the court can hear the relevant evidence and make a decision about the issues the parties have been unable to resolve.

+ How does the court approach child arrangements?

Whatever stage the case has reached, the child's welfare is the court's paramount consideration when deciding questions about their upbringing under the Children Act 1989.

The court is therefore not deciding which parent has presented the stronger personal argument against the other. It is considering what arrangements meet the child's welfare needs, using the evidence available and the legal framework that applies.

That is also why allegations of harm are dealt with differently from ordinary disagreements between parents. Where an allegation could affect the court's assessment of risk or the arrangements that can safely take place, the court may need a clear factual basis before moving on to the final welfare decision.

In other cases, the court may be able to make progress without determining every disputed event. Keeping the focus on the decisions the court actually needs to make can help keep proceedings proportionate. To find out more about child arrangements visit our page.