How the courts deal with abuse allegations in children cases

It is sadly common that allegations of domestic abuse are raised by one or both of the parties in proceedings between parents over arrangements for their children. Perhaps the most common scenario is where the children live with their mother, their father is applying to the Family Court for contact, and the mother alleges that the father has abused her.

In such situations, the court must investigate the allegations of abuse before it decides what order or orders to make, as clearly a finding of abuse could have implications for the safety and wellbeing of the child.

But how exactly does the court go about investigating allegations of abuse?

Fact-finding hearing

The normal way is for the court to fix a hearing to look into the allegations and decide whether they are proven. This is usually referred to as a ‘fact-finding hearing’.

The fact-finding hearing will be fixed as soon as possible after it has become clear that abuse allegations are being made. The hearing will normally take place separately from the final hearing, at which the court will decide what orders to make in respect of the arrangements for the child.

At the fact-finding hearing the court will hear the evidence of both parties, and any other witnesses that they wish to call, such as friends or relatives who were present when incidents of abuse were alleged to have taken place.

Schedules of allegations

Obviously, the court needs to know what allegations are being made by the parties, and each party is entitled to know in advance what allegations they are facing.

This is normally addressed by the court requiring any party alleging abuse to file with the court and serve upon the other party a schedule, setting out their allegations in numbered paragraphs.

Schedules of allegations are obviously important documents, and they, therefore, require proper drafting, to ensure that all relevant matters are before the court. The court will not normally allow a party to ‘spring’ further allegations upon the other party at the last minute.

Burden of proof and lies

It is important to understand what is legally required to prove an allegation of abuse (unless of course it is admitted by the other party).

There are two points to note here:

Firstly, the burden of proving the allegations rests with the person who makes them. This means that the party making the allegation will have to persuade the court, normally in oral evidence, that the allegation is true. It is therefore essential that evidence is presented properly.

The second point relates to what is called the ‘standard of proof’. In cases such as this, the standard of proof required is the ‘balance of probabilities’. In other words, the court must believe that it is more likely than not that the allegation is true.

There is one other point to make here: it is not uncommon for witnesses in cases of this sort to tell lies in the course of the hearing. However, the fact that a witness has lied about some matters does not mean that they have lied about everything – a proven lie does not nullify all of their other evidence.

The court’s decision

Once it has heard and seen all of the evidence, the court will decide which of the allegations of abuse, if any, are true. It will usually give a judgment listing the allegations and stating for each of them whether or not they are proven.

Unless there is a successful appeal against the findings, the court will consider them to be true when it comes to deciding what child arrangements order (e.g. a contact order) to make.

Legal help

As will be seen from the above, investigating allegations of abuse in children proceedings can be a complex matter, requiring a knowledge of the legal principles involved. It is therefore highly recommended that if you are making or responding to allegations of abuse you seek the help of an expert family lawyer.

We can provide the help that you need. To book an appointment with us, click here. (You may be able to get legal aid if you have evidence that you or your children have been victims of domestic abuse or violence, and you cannot afford to pay legal costs.)