Operations of the Family Courts - Justice Committee Contents

Written evidence from Families Need Fathers (FC 54)



1.1  Families Need Fathers (FNF) is the UK's leading shared parenting charity, established in 1974. Our remit is to work to keep both parents in a child's life after divorce or separation, supporting children, parents and increasingly their extended families who seek to retain an active role in children's lives. Mothers, fathers, new partners, grandparents, wider family and their friends can access our services in a number of ways. We have a helpline, 56 branches across England, Scotland, Wales and Northern Ireland, factsheets and guides, an online support forum and other member services. The overwhelming majority of our services are provided by volunteers.

1.2  FNF seeks to obtain the best possible blend of both parents in the lives of children after divorce and separation, enough for them to realise that both parents are fully involved in their upbringing, wherever appropriate. We believe strongly that to achieve our aim the legal framework in the various UK jurisdictions has to change. Currently the law too often has a divisive impact on families, treating one parent as the sole carer and the other as the sole financial provider. The reality is very different and much more varied. Very often both parents want to play a full role in the child's life, and are well able to do so, but the family justice system in effect prevents that. What is needed is a law that encourages "shared parenting", so that both parents are, wherever appropriate, encouraged to play a full role in their child's life following divorce and separation.

1.3  Separation and divorce is distressing in itself. From our experience the family justice system too often makes it much worse. Going through it is far too often a painful, drawn out and exhausting experience. In FNF's view the state should provide a family law system that handles disputes after separation and divorce fairly, efficiently, as speedily as possible and in the best interest of children. The state's intervention should be the minimum required to protect a child's health and their and the parents' right to family life in accordance with the Human Rights Act and the UN Convention on the Rights of the Child.


2.1  FNF has a strongly held view that too often the family justice system fails to meet the needs of its users in the courts in a fair, child-focused, efficient and speedy manner. Going to court encourages conflict. There are long delays. It is expensive for the individuals concerned as well as the state.

2.2  CAFCASS plagues the system with unnecessary delay. This could be avoided in private law cases by focusing on the cases where domestic violence is alleged or the child or parent is already at risk in any way.

2.3  Legal aid is inefficient and can encourage one parent to prolong proceedings so that a child is denied a relationship with the other parent, the grandparents and their wider family. Well funded and appropriate mediation is usually a far better alternative to court.

2.4  We feel that the Children, Schools and Families Act 2010 did not go far enough with regard to the issue of transparency. Although it is crucial that individual children and vulnerable adults should be protected from being publicly identified, there is a wholly legitimate concern about how and why decisions are made. Whether they are the best ones and what the consequences are for the individuals and society.


3.1  One of the most destructive and corrosive problems facing the family justice system is delay. We believe CAFCASS are responsible for a large proportion of current delays in the family courts. Families can wait many months for reports that may not always be necessary. Delay exacerbates conflict between parents and children grow up often without the love and guidance of both parents and their wider family. It often leaves more time for a child to be used a weapon by one parent.

3.2  The pressure on CAFCASS's resources, especially since the Baby P case, could be significantly alleviated by focusing on a minority of private law cases where there are claims of child abuse or domestic violence or known risks of this kind. This would both allow such claims to be investigated more carefully and remove a major source of delay in cases which do not concern such claims. The Interdisciplinary Alliance for Children recently released a joint statement which questioned whether the CAFCASS model is "either the most effective in terms of outcomes for children, or the most cost effective use of available resources, both financial and human". We agree with this. The CAFCASS budget 2009-10 was £131.2 million; the actual expenditure was £131,796,000. In 2008-09 they spent £3.6 million more than their original budget allocation of £114.9 million, consequently the Department for Children Schools and Families re-profiled CAFCASS's funding in December 2009 bringing forward £4.6 million from future years. This is not sustainable financially, nor is it an effective model.

3.4  If CAFCASS focused on the minority of private law cases where domestic violence or child abuse has been alleged then they would have the resources to address the other issues which we frequently are approached with regard to. We often hear complaints with regard to the conduct of individual officers. There are cases where individual officers conduct themselves in a way that is not in the best interests of the child. We believe that this is sometimes a consequence of being under increased pressure. If resources were refocused, we believe that officers would have more resources available to them, meaning they can fulfil their duties to the highest possible standard. Training is also an issue here. If resources were available then officers could benefit from increased training. A complaint we hear is that the CAFCASS officer came to conclusions that were not reflective of reality. Training and sufficient time to make well-founded conclusions which have such lasting effects for families is crucial.

3.5  It is the resourcing and the overambitious functions of CAFCASS that is of most concern. The issues that we see arise from the sponsorship of CAFCASS by the Department of Education centres around joined-up working. The Department of Education and the Ministry of Justice are the possible departments that could sponsor CAFCASS. The Department for Education and its focus on children seems the best departmental fit, although this often presents us with problems. When a parent comes to us they are often in contact with many different agencies. Due to the lack of case management there families are not viewed as a whole. We feel this is a major shortcoming of the current system. If the Department for Education continues to sponsor CAFCASS, then it is crucial that they work more closely with HMCS and the Judiciary, in a way that does not happen at the moment.


4.1  First and foremost everyone should have access to justice. However we feel that the legal aid system is neither efficient nor fair, nor helping children sufficiently. Far too often one parent is able to prolong court proceedings in a way that is, all too often, successful, in order to cut off the children from the other parent. It is often the case that one parent does not quite qualify for legal aid and the other does. We often hear of cases where a parent that qualifies for legal aid and abuses it, by regularly breaking court orders and returning to court time and time again, while the other parent is slowly bankrupted.

4.2  One sad feature about this is that the money spent could be so much better spent on out-of-court options and the children.


5.1  In our Family Justice Review response (annex 1) we recommended a new family law path based on the presumption of shared parenting, a re-focused CAFCASS, targeted legal aid, judicial continuity, compulsory parental education and compulsory mediation.

5.2  Court is often the worst place to decide who will care for children and when. There is general agreement that mediation is a better alternative and it can have more lasting results. Mediation can play a central role, by helping to switch the culture from an adversarial one to an approach that emphasises the need for agreement, for the children's sake primarily. It can also minimise the opportunities for warring parents to use the courts to ensure that a child sees little or nothing of their ex-partner for long periods of time, often damaging the child significantly.

5.3  Mediation is also significantly speedier than court proceedings. In 2007, the National Audit Office published a report looking at mediation in family cases involving legal aid. On average, mediations surveyed took 110 days (from the start of mediation to the end of the month in which the mediator sought reimbursement from the Commission). Over 95% of mediations were completed within nine months and all mediations were complete within 12 months. In comparison, the average elapsed time between applying for other legal help for family-related matters (predominantly cases relating to children, domestic violence or financial provision) and the date of the final bill was 435 days, or over 14 months. Only 70% of these cases were completed within 18 months (Source: National Audit Office, Legal aid and mediation for people involved in family breakdown, 2007).

5.4  There is also the financial case. In 2007, the National Audit Office published a report looking at mediation in family cases involving legal aid. They found that legal-aid costs are substantially lower in mediation than in court proceedings in family cases. The report found that the average legal-aid cost in family court proceedings was £1,682 per case. The average legal-aid cost of a family mediation was £752.

5.5  Mediation is not appropriate for cases where there has been domestic violence or the child is at risk in any way. From our experience mediation has the most success when parents attend quickly. Too often it takes place too far down the line. Parents may refuse to compromise. Mediation also has more success when parents have gone through some kind of parental education course.

5.6  Although we strongly advocate mediation, crucially, we believe that both parents need to understand how important the other is to the child. Therefore, we have the strongly held belief that mediation will work best with a presumption of shared parenting.


6.1  FNF has long supported and promoted "transparency" In the Family Courts. The point of openness is to ensure that decisions are taken in the right way. By opening decisions to public scrutiny we don't want to identify children, vulnerable adults or their family. We do want the information to be available on how the decisions are decided. We feel that the Children, Schools and Families Act 2010 did not go far enough. There should be no citing of names or of details that would result in identities becoming known. The rules that prevent this in criminal cases involving children provide relevant experience on how to do this.

6.2  The interests of the children caught in the system demand that the legal proceedings whose outcome will so affect their lives are carefully made, with all relevant factors scrupulously assessed. The welfare of many children not directly involved will be indirectly affected, by beliefs about what will or may happen should the issue become one to be decided in court. The issues concern some of the most vulnerable children in our society. There is a wholly legitimate concern about how and why decisions are made, whether they are the best ones, and what the consequences are for the individuals and society. We believe that court decisions should be published in full, minus the personal details listed above. This will give the public and the media the information they need to assess the decisions made.

September 2010

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