House of Commons - Operation of the Family Courts

Operation of the Family Courts - Justice Committee Contents

2 The current system and the case for change

The family law context

7. The family justice system sees cases ranging from the relatively amicable separation of a couple to physical, sexual and emotional child abuse. In the most serious cases, a child's life may be at risk. In 2009-10, 36 children were killed by their parents. Research carried out for the Home Office in 2003 found that, between 1995 and 1999, in 80% of all homicides where the victim was an infant under the age of one, the killer was a parent, and in "virtually all" the remaining 20% the killer was a family member, friend or someone who had care of the infant.[3]

8. While the assumption may be that a child's life is at risk primarily in cases of severe neglect and abuse, tragically children have been killed by a parent in the aftermath of relationship breakdown. In February 2010, five year old Gabrielle Grady was murdered by her father as he drove his car with her and her six year old brother inside into the River Avon, following a row with their mother over contact with the children. In August 2010, in Scotland, Theresa Riggi killed her three children who had been the subject of an on-going residence dispute with her estranged husband. She was found guilty of culpable homicide[4] on the grounds of diminished responsibility.

9. Abuse within a family, including severe neglect and physical, sexual and emotional violence, remains the reality for many children. In March 2010, there were 46,709 children on the child protection register at risk of abuse or neglect.[5] In 2009-10, the British Crime Survey found that 16,864 sexual offences against children under 16 were recorded in England and Wales, 31% of all sexual crimes and 38% of all rapes.[6] Studies indicate that around 80% of such offences take place in the home of the offender or child, and the vast majority are committed by someone known to the victim, often a family member.[7] In 2009, a study by the NSPCC found that all types of abuse and neglect of children were under-reported.[8]

10. Violence between adults has been found to have a long-term negative effect on the emotional well-being of children, particularly their ability to form healthy relationships in adult life.[9] Quantifying the incidence of domestic violence is notoriously difficult. In 2008-09 the British Crime Survey found that 42% of victims of all violent offences reported the incident to police, compared with only 16% of domestic violence victims. However, the most reliable figures, from the British Crime Survey, found that 1.2 million adults (780,000 women and 463,000 men) had been the victim of domestic violence in 2008-09, around 4.4% of women and 2.7% of men in the UK.[10] A 2004 survey found 45% of women and 26% of men had reported experiencing at least one incident of domestic violence in their lifetimes.[11] In 2009, some 24,865 non-molestation or occupation orders were made in the county court to protect victims of domestic violence.[12] Studies show that intra-familial violence occurs throughout society, in all social classes and across racial, religious and ethnic groups.[13] Many victims experience repeated attacks, including sexual, physical and emotional abuse: a 2004 survey found that no other crime has such a high repeat victimisation rate.[14] In 2001, the British Crime Survey found that 45% of rape victims were assaulted by current husbands or partners and 9% by former partners.[15] Of the 3,249 women and 6,808 men murdered between 1995 and 2009, 47% and 12% respectively were killed by a partner or ex-partner.[16]

Overview of the current system

11. Our primary difficulty throughout this inquiry has been to form a clear picture of trends and changes in the family justice system. The family justice system consists of private law cases, which deal with the consequences of relationship breakdown, and public law cases, which involve child protection. The Ministry of Justice's (MoJ) Judicial and Court Statistics for 2009[17] tell us that there were 163,290 court cases involving children in England and Wales, 137,480 in private law and 25,810 in public law.[18] We have heard from many witnesses that the numbers of cases in both public and private law is rising, and this is corroborated by the Ministry of Justice's figures. However, it is impossible for us to gauge the level of that increase given the flaws in compiling the data. The Ministry of Justice's Judicial and Court Statistics bulletin for 2007 gives a succinct summary of the weaknesses in the figures:

Children Act data for the Family Proceedings Courts was provided on electronic summary returns submitted to HMCS Business Information Division on a monthly basis. The figures shown for Family Proceedings Courts pre 2007 are weighted estimates based on data from a subset of courts. There are known data quality problems with these, which are likely to be an undercount. Research undertaken on behalf of Ministry of Justice has identified that some cases that have transferred from the Family Proceedings Court to the county court have been incorrectly recorded as new applications in the county court, thus inflating the number of new applications at the county court (see Masson et al 2008). Work is in train to improve the accuracy of county court records.[19]

12. The Judicial and Court Statistics bulletin for 2007 also noted that the overall figures for applications in public law and private law, the numbers of divorces, and related proceedings, and the figures for applications made for non-molestation and occupation orders for the last five years differed from those published in previous years as "they are sourced from FamilyMan, a live case management system that is continually updated with new information."[20] Other problems with the statistics include the fact that disposals made one year may relate to applications in previous years, the court has the power to make an order of a type different to that applied for if it is in the best interests of the child, courts record the number of children who are the subject of applications in the family courts, rather than the number of applications themselves so the actual workload is unclear[21] and the figures for disposals do not include any interim orders made by the court.[22]

13. Comparing the number of cases between years should be a simple exercise that would allow the Ministry of Justice to at least begin to assess the impact of policy and legislative changes on the family court system. We are therefore surprised that neither the current nor the previous administration has acted to provide a robust evidence base for the formation of policy. We will return to this subject after considering what the data may, despite its flaws, show about trends in the family court system.

PRIVATE LAW

14. The number of children involved in applications in private family law has increased year on year since 2005, the greatest increase being 14% between 2008 and 2009. While the numbers in the High Court have remained reasonably steady since 2005, at an average of around 1,100 a year, the MoJ's figures for the county court, which hears the majority of private law cases, saw an increase of over 7% in both 2008 and 2009. In addition, the Family Proceedings Court (a specialist magistrates' court) saw an increase of 53% in the number of children involved in applications made between 2008 and 2009 (excluding adoptions). While the Ministry of Justice's Judicial and Court statistics must be approached with caution, some of our witnesses were also of the view that the number of children involved in applications in private family law was increasing.

PUBLIC LAW

15. The problems we had with ascertaining trends in the family courts is exemplified by the quality of the data available in public law proceedings. We were told by Cafcass, among others, that the publicity given to the tragic death of 17 month old Baby P at the hands of his mother, her boyfriend and the boyfriend's brother led to a surge[23] in the number of children involved in public law proceedings.[24] In late 2008, the case became the subject of national headlines and caused a public outcry.[25] Peter Connelly had been on Haringey Council's Child Protection Register when he died. He had previously been placed temporarily in the care of a family friend during child protection enquiries. However, as his mother was viewed as co-operating with social workers, child protection services in Haringey were advised by the council's lawyers that the legal threshold for taking Peter permanently into care had not been met, and later injuries, which occurred after he had returned to his mother's care, were either not picked up or not properly investigated when they were identified.[26]

16. Bruce Clark, Cafcass's Director of Policy, told us:

Serious commentators and researchers have explained that maybe in the mid-2000s the threshold at which local authorities were bringing care applications had risen too high…our immediate...post Baby Peter research showed that no footling irrelevant cases were being brought before the court in a panic. The cases that were being brought in the immediate wake of the Baby Peter publicity were long-term chronic neglect cases, and there were strong arguments that these cases should have been being brought before the court sooner [...]These are really serious cases that are still coming before the courts...reflecting serious problems of drug and alcohol misuse, parental mental ill-health and domestic violence.[27]

17. The impact of the increase in public law cases was such that it led the then President of the Family Division, Sir Mark Potter, to introduce guidance on the approach to be taken by Cafcass to reduce the rising number of cases that had not been allocated to a guardian. The Guidance constituted emergency measures allowing Cafcass to supply what was deemed a "safe minimum service".[28]The Guidance was originally put in place for a year but was extended for a further six months in April 2010 as the level of public law cases did not decline.

18. The problem with the figure of 31% (the 'surge' in public law cases after the death of Baby P according to the Ministry of Justice's court statistics) is that public law cases before the publicity surrounding the death of Baby P were in decline. The introduction of the Public Law Outline in 2008 and the introduction of court fees for local authorities in April and May 2008 had led to a significant downturn in the first half of 2008. Overall, even after demand rose sharply from December onwards, Cafcass saw only 3.7% more care cases in 2008-09 than in the previous year.[29] The initial pressure on Cafcass and the courts came from the concentration of applications and was compounded when the higher number of applications continued.

DELAY

19. The avoidance of delay in family matters involving children is a statutory obligation for the courts under the Children Act 1989.[30] Throughout our inquiry we heard from witnesses that delay in the family justice system was, despite the courts' statutory obligation, endemic and rising. The Family Justice Panel found, from the data on an internal case management system, that an average case in the family courts took 53 weeks in 2010. When the Children Act was passed in 1989, 12 weeks was the optimistic target, although evidence suggests that even in the early 1990s cases took some weeks longer.[31] However, recent years have seen a steady and inexorable rise in the time taken for cases to be concluded.

20. One of the reasons for the recent increase in delay is the increase in applications outlined above. Mr Justice Ryder told us: "We have fixed resources, both of the judiciary and courts available for us to use, and indeed the sitting days to use those courts."[32] Sir Nicholas Wall, President of the Family Division, told us that the pressure on the courts was such that he had concerns for the health of the judiciary.[33] However, we heard that other factors also contributed to the length of time cases took to conclude. The evidence of Barbara Esam, Policy Lawyer, NSPCC, is illustrative: "Delay is a problem in both public and private law. There is not enough judge time. The Cafcass reports are slow. There aren't enough experts around of sufficient quality. That means that the ones that there are are overworked and not available, which also causes delay."[34] We also heard complaints about case management by the judiciary and a lack of trust between social workers, Cafcass, the judiciary and parties which led to repeated adjournments to seek further evidence.[35]

21. The evidence we heard was similar to that found by the Family Justice Panel, which commented in its Interim Report that, although the rising number of children in the family justice system contributed to delays: "increasing delays are not solely a matter of rising caseloads. The number of hearings is increasing, caseloads in Cafcass have increased to the point where it is hard for them to carry out work on all cases, and ever more expert assessments are being ordered."[36] This conclusion tallied with the evidence given to us, as well as studies carried out by the Ministry of Justice and the Department for Education.[37]

THE IMPACT OF DELAY

22. Barnardo's, commenting on public law cases, told us that the impact of delay on children's ability to form relationships was harmful and long-term:

The uncertainty and instability caused by delay can have long term and irreversible consequences for a child's development by damaging their ability to form positive attachments. This often results in multiple problems in adolescence and later life. Two months of delay in making decisions in the best interest of a child equates to one per cent of childhood that cannot be restored.[38]

On a practical level, the longer a child's future is under consideration by the courts the less likely he or she will remain in the care of a single person. Jonathan Ewen, Director, Barnardo's North East, told us that the level of understanding of the impact on child delay, particularly in very young children, was poor throughout the family justice system: "All the paediatricians are telling us that what [young children] need is stability of care, consistency of love and for that care to be consistent over a period of time. If children don't get that, they are being harmed, day by day, week by week."[39] Barnardo's also told us:

Barnardo's emergency foster carers often highlight the negative impact on the children they look after. For example, Helen, an emergency foster carer for Barnardo's, says: 'I can't answer Tom's questions. He wants me to make him promises about what is going to happen but I can't, it's very difficult to know what to tell him. He has such little concept of time it's hard to explain that we have to wait and see because a week feels like a lifetime to him'.[40]

23. Witnesses told us that the prolonging of conflict between parents together with the uncertainty, particularly where there are safety concerns, caused by delays in the court system reduces the well-being of children in private law cases. Fiona Weir of Gingerbread, a charity supporting single parent families, told us "what can harm children is the conflict between their parents, whether they are in intact relationships or whether the parents have separated."[41] Similarly, Craig Pickering, of Families Need Fathers, told us that delays in the court system contributed to an increase in "animosity", making resolution of the issues by other, less adversarial, means such as mediation much less likely.[42] Moreover, substantial delay can preclude the development of potential relationships with children to such an extent that, by the time a decision on residence or contact is made, the interests of the child may lead to a different outcome than would have been the case if the decision had been made earlier.

24. While we appreciate the importance of the decisions the courts are making, the impact of delay on children is so harmful that reducing delay cannot wait for the outcome of the Family Justice Review. In this Report we therefore assess what immediate action is necessary, as well as the approach the Government should take to the recommendations of the Family Justice Review.

Data

25. In its report the Family Justice Panel noted that a poor evidence base was a significant problem in producing a robust evaluation of the current system. It summarised the difficulties as follows:

currently almost nothing is confidently known about performance, cost or [efficiencies in the family justice system]. Paper to and within the courts flows in a way that barely reflects even the invention of computers. Individual IT systems in different agencies have different definitions (what constitutes a case for example) and do not talk to each other. [...]Data from HMCS is particularly poor with, for example, no complete figures for family judicial sitting days or unit costs. Moreover the parts of the system tend to measure the same things in different ways. The IT of each area also does not communicate. Information flows around the system largely on paper, as though computers and the internet had not been invented. We have rarely attended a court hearing when all the relevant information was available. Lack of systems is not the only reason for this, but it certainly contributes.[43]

26. In this inquiry we were also faced with a lack of quantitative data. Much of the evidence around the cause of delays in the court process is anecdotal, or qualitative. We were particularly disappointed by the lack of robust quantitative evidence in the areas of: litigants in person; expert witnesses; and the effectiveness of early interventions in private law cases.

27. This Committee and its predecessor committees have repeatedly highlighted the need for robust data gathering to allow the development of evidence-based policy. We were extremely disappointed by the serious gaps in data that we and the Family Justice Review found during our inquiries. It is a concern to us that major changes to the system are being contemplated when there are such gaps in the evidence base. The Ministry of Justice, in particular Her Majesty's Courts and Tribunals Service, and the Department for Education must begin to improve data collation now; without such evidence, reform of the family justice system could be fatally undermined before it has even begun. We think the Ministry of Justice should take the lead on data collation, and we wish to see a report on progress by the end of 2011.

3 Brookman and Maguire (2003), Reducing homicide: a review of the possibilities, Home Office, p.16-17 Back

4 The equivalent offence in England and Wales is manslaughter. Back

5 DfE: Referrals, assessments and children who were the subject of a child protection plan (2009-10 Children in Need census, Provisional). Back

6 British Crime Survey (2010), Home Office Back

7 Grubin, Don (1998) Sex offending against children: understanding the risk. Home Office, pp. v-vi and p.26. http://library.npia.police.uk/docs/hopolicers/fprs99.pdf Back

8 Child maltreatment in the United Kingdom: A study of the prevalence of child abuse and neglect, Cawson, Wattam, Brooker and Kelly, November 2000 https://www.nspcc.org.uk/Inform/publications/Downloads/childmaltreatmentintheUKexecsummary_wdf48006.pdf Back

9 Ev 115 Back

10 British Crime Survey (2009) (Home Office) Back

11 Home Office Research Study 276, Domestic violence, sexual assault and stalking: Findings from the British Crime Survey, Walby and Allen, 2004, http://broken-rainbow.org.uk/research/Dv%20crime%20survey.pdf Back

12 Judicial and Court Statistics 2009, Table 2.9, Ministry of Justice.
http://www.justice.gov.uk/publications/docs/jcs-stats-2009-211010.pdf Back

13 Walby and Allen Back

14 Dodd, Nicholas Povey, and Walker (2004). Crime in England and Wales 2003/2004, Home Office Back