FACT-FINDING HEARING AND SCOTT SCHEDULE
Updated: Aug 25, 2021
What is fact-finding hearing?
A fact-finding hearing is a type of special hearing which takes place when there is any dispute between the parties in the event the facts presented, or allegations made by one party in the court is denied or disputed by the other. The initiation of fact-finding hearing is at the discretion of the judge who is presiding the case.
Why is fact-finding hearing important?
Fact-finding hearing is important as it unveils the truth and resolves factual issues which are unknown to the court. Fact-finding hearing is conducted by the court to ascertain the genuineness of allegations made by parties and turn such allegations into facts which are crucial for the case and the result of which would impact the decision of the court.
When does court initiate a fact-finding hearing?
A fact-finding hearing is conduct by the court before final judgement of the case. The fact-finding hearing can be initiated by the court at any point during the proceeding when the allegations are made by one party and denied by the other and the court is satisfied that resolution of such allegations is important for the case and where the court "takes the view that the case cannot properly be decided without such a hearing".
What is the outcome of fact-finding hearing?
The court after conducting the fact-finding hearing pronounces its judgement where it takes into consideration each allegation made by the party and whether such alleged incident happened or not.
Is it necessary for the court to give judgement on all allegations mentioned in the list during fact-finding hearing?
The court has to decide whether the allegation made by the party has happened or not. If the court feels that the allegation due to lack of evidence the allegation is not proved by the party making allegations, then in such circumstances the court hold such allegations to be untrue.
Who has to prove the allegations made by the parties?
The burden of proof is on the party making allegations i.e., the party which makes allegations should also prove it in front of the court by presenting evidences and written statement in favour of the allegations. No additional effort by the court or the police is made in order to assist the parties. If, however, the allegation was already reported to the police by the party, the court may ask and enquire with the police regarding the investigation of the allegation.
In which cases are fact-finding hearings conducted?
Fact-finding hearing is usually conducted in matters such as domestic abuse, family matters, child custody, child abuse, divorce, non-molestation order, etc. where the validity of alleged incident becomes difficult for the court to ascertain.
When is fact-finding hearing done in child related matters?
In cases involving children, fact-finding hearing can be done in the following circumstances:
· Care Proceedings –In case of unidentified injury to the child where the parents are unable to justify such injury the local authority may initiate the Care Proceedings for the child and the court may conduct fact-finding hearing. In such circumstances the lifestyle of parents, relationship status, domestic abuse, etc. is taken into consideration and the court may initiate fact-finding hearing to realise the factual issue.
· Child Custody – In case of divorce or separation of parents, the child custody becomes a major question. The court would strive to reach a decision which is amicable and beneficial to all the parties, however, in the event some serious allegations are made by one party which are disagreed by the other, then in such situations the court may hold fact-finding hearing if such allegations are considered relevant for the purpose of custody.
· Cafcass Report – According to Section 7 of Children Act, 1989, Cafcass, an organisation, is required to provide a report consisting of relevant information of the child. Hence, to ascertain correct information, either on the request of Cafcass to the court, or the Court itself may conduct fact-finding hearing only if the court is satisfied a fact finding hearing is needed.
What happens before fact-finding hearing?
Prior to the hearing, the court asks the party making allegations to provide a list of allegations (also known as Scott Schedule) in detail and giving relevant information with it such as date, time, place and the details of the incidences through written statement. The other party is then given an opportunity to respond to such allegations and prepare statement of its own. Along with allegations and statements, evidences can also be submitted by the parties in support of their allegations or defences.
What happens during fact-finding hearing?
During the fact-finding hearing, the party making allegations presents its allegations and evidences first and the counsel of the party making allegation ask questions to the party in the court. The counsel of the opposite party also asks questions to the party (known as Cross Examination). The counsel of the party making allegations can then again ask questions derived from cross examination to the party. The court can also ask questions to the party. This entire process is repeated for the other party and the witnesses which both the parties have included as evidence.
After presenting of evidences by both the parties, the counsel of each party then would argue on the point related to law, issues and evidences essential to the fact-finding hearing and summarise their arguments known as Submissions.
The court will then give judgement based on each allegation made by the party or may directly move to final order in the event the allegations are not proved by the parties.
How long does it take for the court to give its judgement of fact-finding hearing?
The period of judgement given by the court depends from case to case and the longevity and complexity of the allegations made by the parties. Sometimes in child custody matters, the court pronounces the judgement on the same day on which the final submissions of fact-finding hearing were made by the counsel of each party.
How many allegations can a party submit?
There is not set number up to which can a party submit its allegations. However, in child custody matters, the court generally asks for only up to 6 allegations in the Scott Schedule.
Can I submit allegations which are not true?
Allegations shall not be made by the parties which they know are untrue. Such act would not only increase cost and lengthen the proceedings of the case but might also weaken your case if the court is able to ascertain the wrong intention of the party by making false allegations and the attempt of the party to misguide the court.
Can I submit allegations which I have no evidence of?
Parties can submit allegations in the Scott Schedule against which they have no or few or weak evidences. However, the allegations shall be made by the party carefully and should leave no scope of it being used by the other party for their benefit and which could potentially weaken the case of party making allegations.
How to prepare for fact-finding hearing?
The parties shall prepare for fact-finding hearing in the following manner:
1. The party making allegation shall prepare a Scott Schedule and list down incidences in a numbered format and provide details such as date, location, explanation of the incident. The party shall also:
a. Provide details of witnesses, involvement of police and/or medical services.
b. Sign and provide date of signature on the Scott Schedule.
2. Party making allegations shall submit a written statement to the court explaining the alleged events and mentioning the significance of the witnesses.
3. The other party would respond to the allegations within the time period set by the court. It shall explicitly respond to each allegation carefully through its written statement and provide evidences in support.
Can I include my friends and relatives as witnesses for fact-finding hearing?
The parties can include friends and relatives as their witnesses. However, the court might consider them as weak evidence as they can be biased and can be tutored by the party enclosing them as witness.
On which grounds does a judge decide the allegations?
Although the grounds for deciding the allegations by the judge may differ from case to case, however:
· The court primarily relies on the written statement of the parties and evidences provided in favour of them.
· The court may also consider balance of probabilities and can determine based on the probability of ‘it’ i.e. the allegation happening after considering the overall facts of the case and the parties concerned. Balance of probabilities is applied more in cases of non-physical abuse and verbal abuse.
· The court may also consider expert evidence by asking the medical practitioner in case of physical or mental abuse or injury.
Can I appeal against a fact-finding hearing?
An appeal against the judgement of the lower court can be filed and the appealing party can claim for reconsideration of the result of fact-finding hearing. However, if the lower court has correctly applied its mind and conducted the assessment based on sufficient proof and principles involved, then it is unlikely that the appeal would be successful.
Example of a fact-finding hearing
Example: During divorce proceedings, the mother claims child custody of the child and makes an allegation that the father physically abuses the child as well as her. Such allegation is denied by the father and claims it to be untrue. The court conducts fact-finding hearing to ascertain the validity of the allegation made by the mother. Thereafter, the mother is asked to provide the list of allegations along with details and summary of the allegations (and the proceedings are initiated in the manner provided above).
This web page / Article is NOT legal advice and should NOT be treated as legal advice.