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The Family Justice Panel's Interim Report proposes a fundamental restructuring of the family court system through the creation of a Family Justice Service. We broadly welcome the Panel's approach, but disagree with its proposal to introduce a statement into legislation to "reinforce" the importance of a child having a meaningful relationship with both parents. The Panel itself admits that such a statement is not intended to change the law but believes it could "guide" parents who are splitting up. In our view it is obvious to the court that a child deserves a loving, caring relationship with both his or her mother and father. A statement which might be taken to qualify the principle that the best interests of the child must prevail could give the impression of a change in the law and could cause confusion. We heard evidence from Australia that the effect of the "shared parenting" approach had not only confused parties about how the "best interests of the child" test should operate, but can encourage a more litigious approach by parents in private law cases. This is in direct opposition to the greater emphasis on mediation and out-of-court agreement between parents which both the Government and the Family Justice Panel are pursuing. For all these reasons, we have concluded that the best interests of the child must remain the primary principle on which the family courts make decisions.
Throughout our inquiry we struggled to find objective, comparable data for the cost of the different parts of the family justice system. The Panel had a similar problem, which meant it was unable to cost its proposals. While we welcome the likely savings from the creation of a Family Justice Service, we are concerned that there was insufficient data to cost the proposals. The Ministry of Justice and the Department for Education must improve data collation.
While we note that Cafcass has made some recent improvements, we remain unconvinced that the organisation is robust enough to deal with future challenges. We have concluded, therefore, that subsuming Cafcass within the Family Justice Service must be the beginning of a series of reforms, not an end in itself. Only in this way will children be guaranteed the protection they deserve.
The family courts will see an increase in litigants in person following reforms to the legal aid system. We are not convinced the Ministry of Justice has fully appreciated the impact on court resources of many more unrepresented parties, but we welcome the Department's undertaking to monitor the outcome of the reforms.
We recognise the need for transparency in the administration of family justice, and the equally important need to protect the interests of children and their privacy. However, having heard the proposed scheme relating to media access to the family courts contained in the Children, Schools and Families Act 2010 condemned by all parties, we recommend the Government scrap the provisions and begin again. In formulating its new proposals we recommend that the views of children on media reporting of the family courts take centre stage. Children themselves must be properly consulted about any such new proposals. To do otherwise would run counter to the ethos that should underpin all proposals relating to the family justice system.
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