Marilyn Stowe Blog

Split hearings: what will happen now? By guest blogger James Thornton

A split hearing can be summarised as a hearing divided into two parts. During the first part the court makes findings of fact on issues identified by the parties or the court. During the second part the court, drawing upon the findings it has made, decides the case.

When a split hearing takes place, it is usually in the context of a contact or residence dispute between parents, with one party alleging domestic violence as a reason for refusing to allow contact with a child from the relationship.

Generally it has been the practice that the allegation must be dealt with, separately from the children matter, before the court can resume consideration of the contact or residence dispute. A split hearing can thus cause delay and expense for both parties – but change is in the air.

In one of his first announcements since becoming President of the Family Division in April 2010, Lord Justice Wall recently gave new practice guidance to judges and magistrates on the occasions when it is appropriate to direct a split hearing or conduct a finding of fact hearing in private and public law family proceedings.

(Sir Nicholas Wall’s appointment was shrouded in some controversy, as the then Justice Secretary, Jack Straw, had asked the appointments panel to review its nomination of the judge as Sir Mark Potter’s successor. Sir Nicholas had been outspoken in support of the family justice system in a talk he gave in November last year, when he warned that without proper funding, the family justice system “would implode and it is the children who will suffer most”. The panel did reconsider, but did not change their preferred candidate.)

In the introduction to his guidance, Sir Nicholas asserts that split hearings are:

1. Taking place when they need not do so.

2. Taking up a disproportionate amount of the court’s time and resources.

The guidance reminds the judiciary that the decision to direct a split hearing or to conduct a fact finding hearing is a judicial decision, not one for Cafcass or the parties.

Sir Nicholas goes on to say that a finding of fact hearing is a working tool designed to assist the judiciary to decide the case, and that it should only be ordered if the court takes the view that the case cannot properly be decided without such a hearing. He says that even when the court comes to the conclusion that a finding of fact hearing is necessary, it by no means follows that such a hearing needs to be conducted separately from the substantive (main) hearing.

He notes: “It is a rare case in which a separate fact finding hearing is necessary”.

Specific examples are given, such as cases in which domestic abuse is put forward by the residential parent of a child as a reason for denying the non-residential parent contact with the child. Sir Nicholas says that is not a reason for automatically conducting a split hearing.

Such situations are frequently encountered by family practitioners, so it is interesting to note that the guidance specifically highlights these cases for further consideration by the judiciary. The guidance refers to a 2009 practice direction: Residence and contact order: Domestic Violence and Harm [2009] 2 FLR 1400. It recalls that the court must consider the nature of any allegations, if admitted or proved, that “would be relevant in deciding whether to make an order about residence or contact and, if so, in what terms”. The court is instructed to “consider the likely impact of that issue (domestic abuse) on the outcome of the proceedings”. If the allegations are unlikely to have any effect on the court’s order, there is no need for a separate fact finding hearing.

Sir Nicholas Wall’s guidance is not binding on the judiciary, but it amounts to a clear recommendation as to what practice judges and magistrates should adopt in such cases.

Of course, the guidance should also be viewed in the context of the Chancellor’s plans to cut £325 million from the Ministry of Justice’s budget as part of the Government’s planned £6.2 billion spending cuts, to help reduce the budget deficit. It certainly seems designed to discourage split hearings that may have been taking place unnecessarily.

It remains to be seen how the judiciary interprets this guidance, but judges and magistrates may be less willing to direct a split hearing.

Practitioners will now need to show not only that allegations of domestic violence are relevant to the court’s decision about residence or contact, but also explain why they are relevant and how the court’s decision is likely to be affected as a result.

As for clients: Sir Nicholas’ guidance is likely to result in fewer costs being incurred. After all, having one hearing is going to be more cost-effective than having two. What is more, if the court does not need to make time for two hearings, proceedings may conclude at an earlier stage.

James Thornton is a partner at Stowe Family Law’s Harrogate office. With 14 years’ experience, James’ specialisms include dealing with the financial issues arising from divorce, particularly when substantial personal, business or pension assets are involved. His expertise also extends to cases involving children. A former member of the Law Society’s Family Panel, James is an Accredited Specialist member of lawyers’ organisation Resolution, sits on the North and West Yorkshire Resolution committee and is a member of the West Yorkshire Family Justice Council.

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1. Divorce and children: how “conciliation hearings” can heal disagreements – by guest blogger Stephen Hopwood
2. Family litigation & death: what happens next? By guest blogger Jonathan James
3. International divorce and child abduction – by guest blogger Andrea Essen
4. Rights for cohabiting couples: how far will the government dare to go? By guest blogger Isabel Thornton
5. Why Baroness Deech is wrong – by guest blogger Jonathan James