Operation of the Family Courts - Justice Committee Contents

Written evidence from the Magistrates' Association submitted by the Family Courts Committee (FC 21)



1. The Magistrates' Association believes that Cafcass is failing to deliver its core services to vulnerable children appearing in court, both in Private and Public law cases. In particular, we comment upon the frequent failure of Cafcass to provide a named Guardian to the courts, and thereby failing to ensure that a Guardian is appointed to safeguard the interests of the child. We also comment on delays in court proceedings caused by the failure of Cafcass to meet the filing dates for reports, resulting in delays and distress to families going through proceedings. We feel the pressure on the services provided by Cafcass is resulting in the needs of children in court are not being served and that this situation requires urgent action and resolution. We also advocate that Cafcass should return to the auspices of the now-named Ministry of Justice from its current home at the Department of Education.

2. The MA expresses its concern at the loss of publicly-funded and experienced family lawyers in the recent past, particularly at a time when workloads in family courts are increasing. We emphasise the importance of separate legal representation for the child, particularly where there is no Guardian provided (see point 1), and usually for both parents, and also point out that difficulties in obtaining adequate legal representation leads to delays in proceedings and added pressure on parties.

3. The MA supports compulsory attendance at a mediation meeting before application to courts are processed for all family cases, including those which are privately funded. We provide evidence that disputes which are resolved through mediation are quicker, cost less and are less acrimonious than those settled in court. We also support the involvement of children in mediation and comment on the advantages to them of being involved in making arrangements that will impact upon their lives. However, we express concern at the low take-up of mediation, often, we believe, due to the failure of the legal advisor or solicitor to make clients aware of these services.

4. We support greater openness in family courts to encourage a wider understanding of the legal and court process and why decisions are made and we suggest ways in which this could be achieved, such as "Family Court Open Days" without compromising confidentiality of individual cases (which we feel is extremely important) or encouraging intrusive media access.

5. We also comment on the value of assessments in family proceedings. We feel that unnecessary and unjustified assessments by experts and others can be a major source of delay and expense in family courts.

6. The MA comments on the situation of persons lacking capacity, and how we feel these cases could better be dealt with by the Family Proceedings Court (FPC) rather than transferring them to the County Court. We ask for improved access to a litigation friend for the person in this case, rather than incurring delays, as at present, by constant referrals to the Official Solicitor.

7. The MA considers that there is a need for the establishment of a single comprehensive family court data recording and reporting system. This should provide urgently-needed and reliable data on: workload, performance of the courts and cost of the family justice system.

8. Finally, we express our concern the correct amount of work should be completed at the FPC level and that adequate resources should be available to enable FPCs to fulfil their appropriate role within the family courts. There has been an increase in applications in the wake of "Baby Peter" at a time when many FPCs are experiencing a lack of legal advisors and other resources.


1.1  The Family Courts Committee (FCC) of the Magistrates' Association (MA) welcomes the opportunity to make this submission to the Justice Select Committee enquiry into the workings of the Family Court.

1.2  The FCC represents Family magistrates sitting in Family Proceedings Courts in England and Wales. There are some 5000 - 6000 family magistrates selected from all backgrounds, age groups and ethic groups. They are unpaid but receive special training and are regularly appraised. They are assisted in court by a qualified legal adviser.

1.3  Sitting as a Bench of three, family magistrates, with their legal adviser, case manage and magistrates make final decisions and orders for both Public and Private Law applications. In the decision-making process, they scrutinize the papers, hear evidence and representations and order reports. The welfare of the child is paramount and they are always mindful of avoiding delay. They are however dependent on the parties and agencies and, where appropriate, experts filing statements and reports as directed.

1.4  The FPC hears matters lasting up to 5 days duration. Longer and more legally complex matters are transferred to the County Court. However, suitable cases that start in the County Court are also transferred to FPCs, based on criteria set out in the Allocation practice direction. Most public law cases start in the FPC while private law applications can commence at either court.


The effect of Cafcass operations on court proceedings and the effect of sponsorship by the Department of Education

2.1 The MA has been concerned for some time about the service that Cafcass provides to the FPCs in both Public and Private Law Cases.

2.2 At its last AGM in November 2009, the MA unanimously passed the following motion:

"This AGM considers that Cafcass is failing to deliver its core services to vulnerable children appearing in our courts and calls upon the Government to conduct an urgent review of how best to meet the needs of such children, reduce delay and improve local accountability".

2.3 We are concerned that, despite extra funding by Government, a large backlog of cases requiring Cafcass input remains in parts of the country. We hear many cases where children going through the courts have not had the services of a Guardian at an appropriate stage and the court does not have the benefit of a Guardian representing the child to assist in its decision-making. We therefore would like to see s.41 of the Children Act fully implemented, in that s.41 enables the court to appoint a Guardian to safeguard the interests of the child and Cafcass are not providing the court with a named guardian in the majority of cases for children who come before our courts. Despite a large and sustained increase in Public Law applications, we consider it essential that the court has the benefit of a Guardian throughout proceedings to support the child, communicate the views of the child and to advise the court on welfare issues. The court is responsible for the conduct of the case and expects its directions to be carried out in the best interests of the child. It cannot be right that where the court is required to make the child's interests paramount that the child does not have someone reporting to the court representing their interests.

2.4 The level of Private Law applications tends to follow a similar pattern to Public Law and a similar increase is being experienced. Cafcass frequently fails to meet the filing date for reports which can take up to 26 weeks and beyond. Frequently, the non-availability of a report is only communicated to the court late into the adjournment, after a hearing date is fixed. Not only does this cause unnecessary delay, but it is particularly difficult to explain this to parents eg a father who has not had contact with his child for many months and then is denied any hope of contact for a further period due to the failure of Cafcass to comply with the directions of the court. Such parents can feel they are being punished for matters beyond their control. We hope that full implementation of the President's Private Law Programme will ease this.

2.5 The failure of Cafcass to appoint Guardians in public law and file section 7 reports in private law matters according to the directions of the court causes delay, puts pressure on the court and other agencies and is expensive.

2.6 We recognize that Cafcass and the services it provides are under pressure, and are likely to continue to be under severe financial pressure, but we believe that it is more cost effective for resources to be directed in children's interests at an early stage. If that does not happen there are increased risks of inappropriate decisions being made and incurring greater costs and difficulties for the children later.

2.7 When Cafcass was originally set up in 2002, it came under the auspices of the Lord Chancellor's Department. It was later moved to The DCSF, now the Department of Education. As Cafcass provides a service to the Court, we have advocated for some time for a return to the now-named Ministry of Justice. This would emphasise its independence, and allay fears that it is another department of social work. All too frequently we find that the Guardian's role can overlap that of the social worker in the case. In addition we think that MOJ Court statistics should be reliable and independent and not have to rely on Cafcass to supply statistics.

2.8 Cafcass Cymru serving the Welsh region is administered by the Welsh Assembly Government. We are not aware of similar concerns affecting its service delivery. They are however experiencing a similar increase in applications which is adding pressure to resources.


Impact on court proceedings and access to justice of recent and proposed changes to legal aid

3.1 The MA has been concerned at the loss of publicly-funded family lawyers in the recent past and has serious concerns about the latest LSC contracts tendering process. We are dismayed at the prospect of a loss of experienced family lawyers at a time when workloads are increasing. The MA does not understand the logic. At a time when care proceedings have risen by 30%, why is the number of family legal aid firms set to halve from October 2010?

3.2 There is an increase in litigants in person due to difficulties in obtaining adequate legal representation. This delays proceedings and is an added pressure on the court, which ensures that they are not disadvantaged because of this.

3.3 Parents and children in public law proceedings are among the most vulnerable in our society. Some parents have mental health issues and learning disabilities and a substantial minority lack capacity to such an extent that they need the assistance of a litigation friend, usually the Official Solicitor. The child is a separate party in public law proceedings and needs to have an experienced and competent solicitor with sufficient time to deal effectively with their case. This is particularly important when the tandem model envisaged by Section 41, Children Act 1989 of the child having a solicitor and a guardian is under stress due to the inability of Cafcass to provide a children's Guardian promptly in all cases and again with sufficient time when they are appointed to deal with the case and progress it without delay.

3.4 Each parent usually needs a separate solicitor because of the conflict of interest and the allegations being made against them. Geographical access to justice is also very important.

3.5 In Private Law proceedings, an increase in fees coupled with extra costs for contact activities has meant that any applicant who has to engage in the entire process including breach proceedings has to pay a substantial amount of money. In particular, those who just fail to qualify for legal aid are hardest hit.


The role, operation and resourcing of mediation and other methods of resolving matters before they reach court

Compulsory Mediation

4.1 The Magistrates' Association supports compulsory attendance at a mediation, information and assessment meeting in relation to all family cases (with limited exemptions) before a court application is processed. That would increase the take-up of mediation, reduce court waiting lists and encourage co-operation over children.

4.2 Family disputes which are resolved through mediation are cheaper, quicker and, according to academic research, less acrimonious than those disputes which are settled through the courts. Despite these advantages, only some 20% of people who are funded by legal aid for family breakdown cases (excluding those involving domestic violence) currently opt for mediation.

4.3 It is the duty of the solicitor or legal adviser to advise their legally-aided clients of the option of mediation in family law cases, although currently there is a financial disincentive to do so as it will result in the loss of potential fees. In response to the 2007 National Audit Office (NAO) survey of recipients of legal aid, 33% said that they had not been made aware by their adviser that mediation was an option. Of those who were not told about mediation, and so did not try it, 42% said they would have been willing to. This represented, potentially, some 14% more cases overall; and even higher rates of take-up might be possible if the option of mediation were better understood by clients.

4.4 Early results and evaluation of a pilot scheme to make in-court family mediation available to legally-aided parties has shown that 43% of parties are still not told about mediation by their lawyers. 2010 National Family Mediation (NFM) figures show that since the NAO report in 2007 the take up has only increased by 1000 cases a year. Until assessment for mediation is made compulsory many people will still be ignorant of mediation's benefits both to their purses and their emotional well being.

Mediation Saves: Costs and Delay

The NAO found the average cost of legal aid in non-mediated cases is estimated at £1,682 compared with £752 for mediated cases, representing an additional annual cost to the taxpayer of some £74 million. Not all cases are suitable for mediation, for example, where there has been a history of domestic abuse. Nevertheless, if 14% of the cases that proceeded to court had been resolved through mediation, there would have been resulting savings equivalent to some £10 million per year. Making assessment for mediation compulsory would therefore lead to instant savings for the LSC.

The NAO also found that mediated cases are quicker to resolve, taking on average 110 days, compared with 435 days for non-mediated cases.

At the moment such data is only available for legally-aided cases. The Magistrates' Association supports compulsory assessment for suitability for mediation in all family cases including those which are privately funded.

Children in Mediation

4.5 The Magistrates' Association supports the involvement of children (if they so wish) in mediation. Many National Family Mediation (NFM) services now routinely invite children to meet with the mediator in un-officious surroundings so that the children's views can be heard. The advantages for children and young people are that they get the chance to be a part of making arrangements that will have a big impact on their lives: they can ask questions, offer practical suggestions, express their feelings or concerns or simply hear what is being planned. The pity of it all is that without compulsory assessment for mediation being built into routine court procedures, and particularly on application, most children will still never get the opportunity to have their voices heard in the divorce and separation process at all.

It seems odd that there is currently a ground swell for the judiciary to listen to children, with all the connected difficulties of confidentiality, procedure and training for judges, at a stage in the court process when parents' attitudes have been hardened by the anxiety and stress of court appearances. Laudable as current efforts to raise awareness of children's participation might be, how much better if full advantage were to be taken - right now - of services such as those provided by NFM: a service that has benefited many families over the last 30 years.


Confidentiality and openness in family courts, including the impact of recent changes in the Children's, Schools and Families Act

5.1 The MA supports greater openness in the Family Courts in order that the public should better understand the legal process, court procedure and why decisions are made.

5.2 We feel strongly that individual cases should remain confidential due to the highly personal nature of disclosures in court, that participants should have full confidence in the court and to ensure that children, parties and professionals disclose full and frank information to the court.

5.3 We are against intrusive media access to sensitive information, even if anonymised, due to the risk that details alone can identify people locally, cases are at risk of sensationalisation and that children could be inhibited when talking about sensitive information.

5.4 Children have indicated that they are against information about cases concerning them being made public.(i)

5.5 Although sanctions could be imposed, it would be difficult to control interactive blogs, readers /viewers views other IT information and exposure on websites.

5.6 Under the current legislation, the press can attend court and report proceedings anonymously. There are restrictions in what they can report and this is subject to applications to the court. These applications can be lengthy and delay proceedings.

5.7 We do not support the clause in the Children's Schools and Families Act whereby increased media reporting in family courts will be allowed in 18 months time by a vote in Parliament following a review and evaluation of current changes.

5.8 The MA is supporting the pilot on anonymised reasons published on BAILII for now. However, we have reservations regarding its long-term benefit, and the time taken in anonymising reasons.

5.9 The MA would actively support "Family Court Open Days". Greater London Family Panel held a day in October 2009 across London. Members of the public and children were able to observe mock trials, participate in the decision-making process and ask questions.(ii)

  • (i)  Children's Commissioner's research on children's views on press reporting, published Spring 2009.
  • (ii)  Greater London Family Panel Open Day at Richmond, Croydon, Stratford, Brent, October 2009.



6.1 Our survey of FPCs in Autumn 2009 unanimously identified assessments by Experts and others was the single biggest cause of delay. Experts in particular are in short supply and their reports take time and are costly.

6.2 FPCs are being more robust about ordering assessments that are un-necessary and are not in keeping with the timetable for the child. We consider that the culture of almost endless assessments, if we agreed them, needs to change. Sometimes they are justified, such as where parents have learning disabilities; where there are more specific problems; or where none have been done before. But, for example where parents want repeat assessments every time they have another child usually just leads to further delays and is of no benefit to the child.

6.3 We consider the Practice Direction on the Appointment of Experts is satisfactory but enforcement can be difficult.


Family Proceedings Courts deal with many disadvantaged people. However, when a parent lacks capacity, the case presently has to be transferred to the County Court, although in every other respect the case is suitable for the FPC. Draft rules allow for FPCs to deal with such cases and we would suggest that this is implemented without delay. However, the Official Solicitor is overwhelmed by requests to act as litigation friend and there is presently a backlog. In any event, when he does act, the case is effectively run by the local solicitor but delay is built into the system by the constant need to refer back and receive instructions from the Official Solicitor. We would suggest that there is a review of the present arrangements into arranging for a person lacking capacity to have the benefit of a litigation friend when they are legally represented.


8.1 The MA considers there is an urgent need for reliable court statistics to provide data on the following:

  • (i)  Workload within the Family Justice systems - there is a need for a single comprehensive and complete Family Court data recording and reporting system. This would make reference to the generally accepted situation that current reporting by HMCS, Legal Service Commission and Local Authorities is inconsistent and there is a lack of agreement on the number of cases, number of children involved, number of cases in the FPCs and County Courts etc.
  • (ii)  Performance of the courts - this would set out the need for appropriate recording and reporting of court direction and actions and refer to the lack of appropriate reporting on the performance of all Family Courts in dealing with cases on a timely or agreed basis ie in agreement with the "timetable for the child". Current systems are crude and the only measures are "number of weeks" which do take into account need for experts reports, the agreed "timetable for the child", assessment periods.
  • (iii)  Cost of the family justice system - the new reporting system must enable the proper cost of the family justice system to be known. This would include:
    • HMCS Family Court costs.
    • Legal Service Commission costs.
    • Local authority costs.
    • Cafcass cost.
    • Cost of expert assessments.


9.1 The MA has been concerned for some time that the correct amount of work should be completed at the FPC level. Implementation of the Allocation Order has indeed increased the number of cases retained at and transferred to the FPC.

9.2 The increase in applications in both Public and Private Law in the wake of Baby Peter has put additional pressure on some FPCs. In some areas. However, FPCs are experiencing a lack of legal advisers and other resources due to HMCS cutbacks, which is preventing them from fulfilling their appropriate role within the family courts. In addition, we are dismayed that Family work has been completely omitted from proposals regarding court closures.

9.3 When workload settles down, we would expect to be able to work to a 50/50 completion rate with other courts.



1. The MA considers that Cafcass is failing to deliver its core services to vulnerable children appearing in court and urges the Government to conduct an urgent review of how best to meet the needs of such children, reduce delay and improve local accountabililty. (AGM Motion November 2009) (para 2.2).

2. We also advocate that Cafcass should return to the auspices of the now-named Ministry of Justice from its current home at the Department of Education, which we feel would emphasise its independence and allay fears that it is another department of social work (para 2.7).

Legal Aid

3. The MA calls for a halt to the diminishing numbers of law firms carrying out legally-aided family work.


4. The MA recommends making compulsory the attendance at a mediation, information and assessment meeting in relation to all family cases (with limited exceptions) before a court application is processed (including those which are privately funded). This would increase the take-up of mediation, reduce court waiting lists, encourage co-operation over children and help children to be routinely involved in the mediation process (para 4.1, 4.4 & 4.5).

5. We recommend all efforts are made to encourage legal advisors and solicitors to make their clients more aware of the availability of mediation services and what they involve (para 4.3)

Confidentiality and Openness

6. We do not support the clause in the Children's Schools and Families Act, whereby increased reporting will be allowed in 18 months by a vote in Parliament following a review and evaluation - and recommend that this clause is not enacted (para 5.7).

7. The MA encourages more support for panels to organise "family court open days" (para 5.9).

Persons Lacking Capacity

8. The MA suggests that Government carries out a review of the present arrangements into helping a person lacking capacity to have the benefit of a litigation friend when they are legally represented.

9. The MA recommends that the draft rules enabling FPCs to deal with cases dealing with persons lacking capacity are implemented without delay.

Court Statistics

10. The MA recommends the establishment of a single, comprehensive and complete Family Court data recording and reporting system, including data on workload, performance of courts and the cost of the family justice system. This would help to resolve the situation of inconsistency and lack of agreement on important issues such as the number of cases dealt with, numbers of children involved, outcome of cases and the true cost of the family justice system.

Family Court Resources

11. The MA urges that adequate funding is allocated to FPCs to enable them to fulfil their appropriate role within the family court system.

12. The MA is dismayed that family work has not been taken account of in proposals regarding court closures and recommends that, henceforth, this is taken into consideration.


The Family Courts Committee of the Magistrates' Association would welcome the opportunity to give oral evidence to the Select committee from the perspective of the Family Proceedings Courts.

September 2010

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