Proceedings in the Family Court, especially where the Children Act is concerned, can often involve allegations of behaviour which may also amount to criminal offences, including domestic abuse, sexual assault, physical violence, harassment, and controlling or coercive behaviour. Where allegations are disputed and are relevant to the issues before the Court, the Family Court may determine that a Fact-Finding Hearing is necessary to establish whether the allegations were more likely than not to have occurred. A Finding of Fact, is made, is a formal determination by the Court to consider the allegation as proven for the purpose of their own final decision. The purpose of a finding is not to determine criminal liability, but to establish the relevant facts for the purposes of these proceedings only - including assessing the welfare of children and any potential risks of harm.
The standard of proof in Family proceedings is ‘on the balance of probabilities’. This means that the Court must only be satisfied that something is more likely than not to have occurred, meaning anything proven, in the Court’s view, to above 50% likelihood can transpire as a finding. This is a lower standard than that applied in Criminal proceedings, where the standard of proof is ‘beyond all reasonable doubt’. Consequently, the Family Court can make a finding that an individual engaged in behaviour which would amount to a criminal offence even where that person has never been prosecuted or convicted, or where the criminal burden fell short. A Family Court finding does not itself establish criminal liability and it does not bind a Criminal Court either.
Of course, the Family Court is not required to determine every allegation raised and there may well be allegations that they consider do not fall relevant in the context of the issues they are determining. The Court will generally focus on any allegations which are relevant and necessary to the decisions it has to make (such as safeguarding). This is particularly important in cases involving domestic abuse, where the allegations may concern a pattern of behaviour rather than a single incident.
The fact that there has been no criminal prosecution or conviction, or a matter being NFA’d, does not prevent the Family Court from making a finding. Equally, the absence of a finding in the Family Court (due to relevance or the Judge not being satisfied on balance) does not necessarily mean that the alleged behaviour did not take place. The Court can consider that a Fact-Find Hearing is not proportionate if the allegations can be managed in another way, such as conditions on contact, limiting to certain concessions or through drug/alcohol testing. However, where there has already been a criminal conviction, the Family Court cannot overrule this and they are not designed to ‘re try’ the same allegation. The Court must take the outcome of any criminal proceedings into account (provided they are relevant) and if an individual was found guilty, the Court is very likely to accept this at face value even if it remains disputed.
Although a Family Court finding does not amount to a criminal conviction and does not automatically establish that a criminal offence has been committed, it can have relevance to Criminal proceedings. Evidence considered during Family proceedings could identify material which is relevant to a criminal investigation. Even if the matter has been closed by the police, it may be reopened following a finding being made in the Family Court. The Criminal Court must conduct its own assessment of the facts and evidence of the Judge’s finding is not sufficient for a conviction. The criminal standard of proof remains.
A client facing a a Fact-Finding Hearing while simultaneously under active police investigation faces potential additional risks. In Family Court, a client must give evidence and answer questions. No-comment is not an available option. Any admissions or concessions made can be requested by the police as part of their investigation later. Furthermore, if a client’s Family Court statement differs even slightly from their police interview, the CPS can request the transcript as part of assessing the client's credibility in the Criminal proceedings. Clients should also expect differing advice, as Family practitioners will not advise a ‘no comment’ approach despite this potentially being the advice given by a Criminal practitioner.
It is sometimes worthwhile for a client to consider requesting a delay of any Fact-Find Hearing until the police investigation or Trial concludes. However, this is rarely granted unless a criminal charge is imminent given the extremity of investigative delays (sometimes years) which directly contradicts the Family Court’s overriding objective. Given the introduction of Pathfinder in Children Act proceedings recently, it is becoming more common for the Family Court to provide staged contact approaches and to invite the parents to reconsider future contact once any Trial concludes and there is more clarity.
Seeking early legal advice can help determine the implications of a finding or conviction arising in one set of proceedings.
Chloe Howells
Chloe Howells joined the firm as a Paralegal in 2025 after graduating with First Class Honours in Law. She developed a strong interest in Family Law through hands-on advice work at Nottingham Law School Legal Advice Centre and brings valuable experience from criminal defence practice.
Bilingual in Welsh and English, Chloe supports accessibility across the firm and has a particular interest in cohabitation and TOLATA matters.
