21. Preparing for fact-finding hearings (procedural support)

What exactly is the court being asked to determine?

Start with the order directing the fact-finding hearing.

That order should identify the issues to be tried and the preparation required before the hearing.

PD12J requires the court, when directing fact-finding, to consider the key facts in dispute and whether those facts can usefully be set out in a schedule or table alongside the response.

A useful allegations table

Avoid making every disagreement an allegation

Fact-finding should remain connected to the welfare decisions the court later needs to make.

Arguments about:

• who was more unpleasant during the relationship;
• minor disagreements with no identified welfare impact;
• peripheral inconsistencies;
• historic disputes that no longer affect risk;
• or conduct which would make no difference to the eventual child-arrangements decision;

may not require separate judicial determination.

Where coercive control is alleged

A pattern may be more than the sum of its individual incidents.

Relevant evidence may concern:

• monitoring or surveillance;
• financial restriction;
• isolation;
• repeated threats;
• sexual coercion;
• humiliation;
• control of parenting decisions;
• use of children or contact arrangements as a means of control;
• post-separation conduct;
• and the cumulative effect on autonomy and parenting.

Burden of proof, standard of proof and what a finding means

A family-court fact-finding hearing is not a criminal trial.

The court is deciding factual propositions for the purposes of the family proceedings, using the civil standard of proof.

“Not proved” does not necessarily mean “proved false”

This distinction is important.

If a party bearing the burden of proof does not establish an allegation on the balance of probabilities, the court does not treat the alleged event as having occurred.

That does not automatically mean the court has made a separate positive finding that the allegation was knowingly fabricated.

Evidence categories

Do not count documents as though each were an independent witness

One allegation may move through several professional records.

Trace the original source.

Witness statements and building an evidence matrix

The witness statement is usually the written foundation of the oral evidence a party will later give.

Read the court's directions before drafting. The order may specify:

• which allegations must be addressed;
• whether statements are sequential or simultaneous;
• page limits;
• the date for filing and service;
• whether exhibits are permitted;
• and whether third-party witnesses must also file statements.

What should a fact-finding statement do?

It should ordinarily help the court understand:

• what happened;
• when and where;
• who was present;
• the relevant context;
• what occurred before and after the event;
• how the event forms part of an alleged wider pattern, where relevant;
• what supporting evidence exists;
• and, where domestic abuse is alleged, the effect on the parent and child where relevant.

Statement of truth

Witness statements must comply with Part 22 and Practice Direction 22A and must be verified by the prescribed statement of truth.

Signing a statement of truth is serious. It confirms an honest belief in the truth of the factual statement being made.

Build an evidence matrix

Before the hearing, map each allegation to the evidence.

Chronology matters

A chronology can expose:

• when the allegation was first made;
• whether a contemporaneous record exists;
• what was happening in the proceedings at the time;
• how professional involvement developed;
• whether the behaviour is said to form a repeated pattern;
• and whether later accounts materially differ from earlier accounts.

The 2026 bundle rules

PD27A requires the bundle to contain only material which is relevant and necessary for the hearing or will actually be referred to.

Messages, social-media material, recordings, photographs and whole professional files should not simply be inserted wholesale without the applicable court direction.

Specific items can be included where they are genuinely required.

Cross-examination, QLRs and participation arrangements

Fact-finding often requires disputed oral evidence to be tested.

But domestic-abuse proceedings are subject to statutory restrictions on direct cross-examination in person.

Prohibition of cross-examination in person

Part 4B of the Matrimonial and Family Proceedings Act 1984, inserted by the Domestic Abuse Act 2021, prevents direct cross-examination in specified circumstances.

Automatic prohibitions can arise, for example, from:

• specified criminal convictions, cautions or charges;
• qualifying protective injunctions;
• or specified evidence of domestic abuse.

Even where the automatic provisions do not apply, the court may prohibit direct cross-examination where the statutory conditions concerning quality of evidence or significant distress are met and the interests of justice support the direction.

What happens if direct cross-examination is prohibited?

The court first considers whether there is a satisfactory alternative means of testing or obtaining the evidence.

If there is no satisfactory alternative, the statutory process allows the party an opportunity to arrange a qualified legal representative for the limited purpose of cross-examination.

If that does not happen, the court considers whether it is necessary in the interests of justice to appoint a Qualified Legal Representative (QLR).

What about questions from a litigant in person?

PD12J recognises that the court may ask each party to identify the questions they wish to have asked.

The judge may also conduct focused questioning where necessary and appropriate as part of the court's investigative approach.

However, where the statutory prohibition on cross-examination in person applies, PD3AB contains the specific process governing alternatives and QLR appointment. The court itself questioning a witness is not treated under PD3AB as the statutory “satisfactory alternative” simply acting as a substitute advocate for a party.

Participation directions

Part 3A and PD3AA require the court to consider whether vulnerability affects a party's ability to participate or the quality of evidence they can give.

Measures can include:

• screens or other arrangements preventing parties from seeing one another;
• live-link evidence;
• intermediary assistance where appropriate;
• communication aids;
• adjustments to questioning;
• breaks;
• and other arrangements necessary for effective participation.

Ground rules

In an appropriate case, the court may hold a ground-rules hearing or otherwise settle how questioning will be conducted.

This can address:

• the manner and length of questioning;
• topics that need to be put;
• communication needs;
• breaks;
• intermediary involvement;
• and other adjustments necessary to obtain the best evidence fairly.

What happens at the fact-finding hearing?

The precise order of evidence depends on the case and the judge's directions.

Broadly, the hearing may involve:

1. preliminary procedural issues;
2. confirmation of the allegations or key issues to be tried;
3. oral evidence from the party making allegations;
4. testing of that evidence;
5. oral evidence from the responding party;
6. testing of that evidence;
7. third-party witnesses where directed;
8. consideration of relevant documentary evidence;
9. closing submissions;
10. and the judge's findings and reasons, either immediately or subsequently.

Giving oral evidence

When giving evidence:

• listen to the question;
• answer the question actually asked;
• say if you do not understand it;
• say if you genuinely do not remember;
• distinguish what you personally know from what somebody else told you;
• do not guess;
• do not argue with the person asking the question;
• and ask to see a document if you need to check it before answering.

Cross-examination is evidence testing, not punishment

Proper questioning can:

• put an alternative factual account;
• test inconsistencies;
• explore contemporaneous documents;
• challenge whether an inference is justified;
• clarify chronology;
• or explore the alleged pattern and context.

It should not be used for insults, repetitive accusations or irrelevant arguments.

The judge evaluates the evidence as a whole

Credibility is not determined by one dramatic answer.

The judge may consider matters including:

• the inherent evidence of the event or alleged pattern;
• contemporaneous documents;
• independent observations;
• material consistency or inconsistency;
• admissions;
• corroborative evidence;
• context;
• the reliability of recollection;
• and the evidence as a whole.

Re B-B: evidence can be considered in clusters

Re B-B (Domestic Abuse: Fact-Finding) [2022] EWHC 108 (Fam) provides a useful worked example of analysing different forms of alleged abuse in clusters while still considering the overall relationship and alleged pattern.

This can help avoid both extremes:

• seeing each event in complete isolation; and
• treating a broad allegation of a pattern as established without testing its factual components.

Findings must be recorded

PD12J provides that the court should, wherever practicable, make findings about the nature and degree of domestic abuse established and its effect on the child, parents and other relevant people.

Findings must be recorded in writing in a schedule to the relevant order.

That matters because later professionals and judges should be able to identify exactly what was found — rather than relying on memory or later paraphrase.

What happens after findings are made?

The fact-finding hearing creates the factual platform for the next stage.

It does not normally end the proceedings.

Section 7 work after findings

Where a fact-finding hearing has been directed in a domestic-abuse case, PD12J says the court will not usually request the substantive section 7 welfare report until after the facts have been determined.

After fact-finding, the court must reconsider the preparation and scope of any section 7 work.

The findings or judgment should be provided to the professional carrying out the welfare assessment.

Judicial continuity

PD12J strongly supports the same judge, or appropriate judicial continuity, after a fact-finding hearing.

Where findings have been made, subsequent hearings should ordinarily remain before the same judge or presiding justice unless the recorded exception applies.

D [2026] EWCA Civ 969

Key authorities

25 questions to answer before the hearing

Primary sources and official guidance

1. Practice Direction 12J — Domestic Abuse & Harm — necessity of fact-finding, directions, evidence, hearing procedure, findings and post-findings welfare assessment.
2. Family Procedure Rules — Part 22 — evidence and witness statements.
3. Practice Direction 22A — Written Evidence — witness-statement form, content and statements of truth.
4. Family Procedure Rules — Part 3A — vulnerability and participation directions.
5. Practice Direction 3AA — participation measures, evidence and ground-rules hearings.
6. Practice Direction 3AB — prohibition of cross-examination in person and Qualified Legal Representatives.
7. Practice Direction 27A — Court Bundles — current 2026 bundle content, page limits, format and responsibility.
8. Re H-N and Others [2021] EWCA Civ 448 — domestic abuse, coercive control and the purpose and structure of fact-finding.
9. Re B-B (Domestic Abuse: Fact-Finding) [2022] EWHC 108 (Fam) — contextual and pattern-based analysis of domestic-abuse allegations.
10. Re B (Children) [2008] UKHL 35 — balance of probabilities.
11. D (Change of Circumstances: Domestic Abuse Allegations) [2026] EWCA Civ 969 — current authority on disputed allegations, professional risk assessment and judicial fact-finding.