The Judge orders a ‘Fact Find’ hearing within care proceedings (when the Local Authority is the Applicant) if it believes that the facts of issue in the case cannot resolved at the final hearing.
Fact Find hearings in care proceedings are usually ordered where there are issues disputed by the parties or when a child has sustained a significant injury and no acceptable explanation has been provided as it was caused. The Judge will need to determine how the injury was caused and who if anyone was responsible.
Expert witnesses specialist in their field are usually called to attend a ‘Fact Find’ hearing to give evidence. The Court can attach great weight to clear and persuasive evidence, but they must also weigh this against other evidence provided to them such the Local Authority, the parents and any other parties who had contact with the child within the timescale of the injury. The parties are also called to provide evidence in order to clarify their version of the events which lead up to the injury.
If there is more than one person who cared for the child within the timescale of the injury, each party will be placed within the possible pool of perpetrators. It is important that everyone within the pool seeks independent legal advice and representation in order that their version of events can be presented to the Court. Otherwise, findings would be made against them and this could have a serious impact on their current or future family life. It may be necessary to request that the Local Authority or independent expert carries out a risk assessment of them so that the Court can consider whether it is safe for them to care for children.
If you require some legal advice contact Emery Johnson Astills who can assist you further and will be able to offer appointment at either our Leicester or Loughborough offices.
Example of case where there is pool of possible perpetrators:
• A 6-week-old baby is seen by the health visitor for a routine check-up within the family home. The baby’s clothing is removed for the purpose of a weight review.
• The Health visitor notices a number of bruises on the baby which seem suspicious.
• On advice from the Health Visitor, the parents’ take the baby to hospital where a further examination is undertaken including a full skeletal X-ray. It is discovered that the baby has sustained a fractured arm. Neither parent is able to provide a plausible examination.
• The parents explain that both set of grandparents visited their home daily to support them in caring for the baby. This has included nappy changing and bathing and baby has been alone with each carer.
In this situation, it is likely that the Court will order a Fact find hearing to determine if the injury was accidental or non-accidental, how the injury was caused, who is the likely perpetrator, and can anyone be removed from the pool of perpetrators. For findings made against a perpetrator or perpetrators, the outcome must be based on the overall evidence provided to the Court and not speculation.
In the words of Butler-Sloss P in Re T  2 FLR 838
“Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof’
Within Fact Find hearings, the standard of proof is ‘the balance of probabilities’, which means it is more likely that not an event took place to cause the injury. The standard of proof is different from that in the Criminal Court.
It is important that seek independent legal advice if you find yourself within a pool possible perpetrator. Please contact Emery Johnson Astills Solicitors where a specially trained member of staff within the Care Team can assist you. You may also be eligible for Legal Aid subject to a successful Means and Merits test.