Operations of the Family Courts - Justice Committee Contents

Written evidence from the Ministry of Justice (FC 43)



1.  The Committee's inquiry has been established at a time of great potential change to the way family justice in England and Wales is delivered. Rather than continuing to conduct piecemeal procedural change, the Government believes that it is time for a whole system analysis of the Family Justice System. This will enable us to pursue both radical reform and maximise efficiency savings; improving services for the citizen whilst alleviating pressure on service providers.

2.  To achieve this transformation, the Ministry of Justice (MoJ) and Department for Education (DfE) are jointly sponsoring a review of the Family Justice System, chaired by David Norgrove. This is the first comprehensive review since the introduction of the Children Act 1989 and is expected to deliver wide-ranging recommendations for reform in 2011.

3.  Whilst this memorandum sets out the Government's views on the areas highlighted by the Committee, it should very much be seen in the context that significant system change is to follow once the Family Justice Review has delivered its final recommendations. Depending on the nature of the Review's recommendations, it is likely that any subsequent reform would be supported by Primary Legislation, in which we would of course expect the Committee to take a close interest.


4.  Cafcass was initially established in 2001 as a Non-Departmental Public Body of the then Lord Chancellor's Department. Responsibility for Cafcass and related aspects of family law passed to the then Department for Education and Skills in 2003, where it remains today. Cafcass' role is to provide social work input to cases in the family courts and its funding in the current financial year is £138.2 million (including a one-off allocation of £10 million to increase efficiency and reduce backlogs). The DfE also has responsibility for children's issues in family law, aside from the detailed court processes on which MoJ leads. We anticipate that the Family Justice Review will make recommendations on the sponsorship of these areas.

5.  Cafcass's performance is currently being affected by the fact that demand for both public and private family law proceedings has increased sharply in the last 18 months, and remains at high levels. Figures from Cafcass indicate that the total number of care applications in 2009-10 was 34% higher than the total for 2008-09 and March 2010 data indicates that the average public law case duration is 49 weeks.

6.  Similarly, Cafcass figures show that, in the year to March 2010, they received 44,722 private law case requests—an increase in demand of around 16.2%[110] from the previous year. This increase in demand is putting pressure on all parts of the family justice system and has impacted on Cafcass's capacity to manage its workload effectively and efficiently.

7.  On 28 July 2010, NAO published a report[111] on Cafcass which found that it could have reacted more quickly and cost effectively to the increase in family law proceedings "had management made more and faster progress in resolving the organisational challenges they were aware of prior to November 2008." It also stated that, "Cafcass […] needs to improve the planning and communication of the changes, and overcome continuing difficulties with management information, IT systems, and in engaging all staff".

8.  However, the NAO recognised at the same time that Cafcass' management could not have been expected to recognise earlier than they did that the increase in care demand after November 2008 would be sustained. The report demonstrates that Cafcass is an improving organisation, albeit one which still faces the challenge of a rising workload and acknowledges that Cafcass is now implementing changes that should allow it to manage future demand.

9.  In its conclusions, the report acknowledges that the DfE's monitoring of Cafcass was adequate and recommends that the Government:

(a)  should consider whether it requires additional, formal indicators to oversee Cafcass to add transparency to existing monitoring; and

(b)  request an assessment of Cafcass' data accuracy.

10.  Both of these recommendations are now in hand.

11.  The NAO review drew on the DfE's own review of Cafcass' capability and performance, which was commissioned by the Accounting Officer in summer 2009. That review showed that while Cafcass had in hand plans that would improve the service's effectiveness and its ability to respond, these needed to be stepped up if the service were to respond to the significant increase in demand it faced.

12.  In response to this, DfE made available an additional £10 million to Cafcass in the current financial year to enable it to improve its operational efficiency, as well as tackling practice issues to enable front line staff to deliver safe and effective practice within resource constraints. This funding is intended to support Cafcass in tackling current backlogs through more efficient working practices, to protect the welfare of all children in family proceedings and to ensure that the best interests of these children remain at the heart of proceedings.

13.  In parallel with these internal changes, Cafcass has been working closely with the family judiciary under the umbrella of the President's Interim Guidance issued in July 2009 to develop local agreements to reduce backlogs and build productive ways of working. The President has proposed in his recent letter to the family judiciary that such successful local arrangements should continue under the new arrangements which will come in to place from this September.

14.  The Family Justice Review is currently examining what reforms should be made to the family justice system to ensure that it works for the benefit of all children and families involved in proceedings. The Government will therefore be looking at the role and sponsorship of Cafcass as part of its consideration of the Family Justice Review's final recommendations for the overall reform of the system.


15.  The Committee's inquiry has also come at a time of significant likely change to the delivery of legal aid. The Coalition Government committed in its programme of work for the next five years to consider the operation of legal aid, and proposals for reform are due to be published for consultation in the autumn. In its consideration of the legal aid system, which remains one of the most expensive in the world, where expenditure has grown out of all proportion from its original conception, where many issues that could be better resolved between the parties are litigated, and where as in other areas we have inherited significant financial pressures, the Government is looking at how it can increase efficiency, whilst ensuring that public funding remains available for those who most need support to secure access to justice. To achieve this we are taking a fresh look at existing thinking on legal aid, as well as considering some new ideas, and a range of options are being developed to provide a coherent package of proposals for reform.

16.  With regard to the existing provision of legal aid, the Legal Services Commission (LSC), have recently announced the results of their recent tender and awarded new civil legal aid contracts to solicitors and not for profit agencies, including services offered in family matters.. The intention of the new contract bid round has been to focus on ensuring quality-assured advice where clients need it.

17.  As a result of this refocusing, and as a result of the large volumes of work that bidders tendered for, there has been a reduction in the number of providers awarded family contracts—although there has not been a significant reduction in the amount of work available under contract. Subject to the appeals and verification process currently underway, the total number of providers will be reduced from 2,470 to around 1,400. The criteria used meant that only those providers with the necessary expertise, and who had passed stringent quality assessment criteria, were awarded contracts. This means that work will be redistributed amongst fewer suppliers, but clients will continue to receive a service, often with access to increased expertise. As part of the procurement process, however, the LSC has also ensured that there will be at least five providers of family services in each procurement area to help avoid conflicts of interest and ensure adequate coverage.

18.  The process of the bid round has been challenged by the Law Society in a judicial review, which the LSC are vigorously defending, However, the LSC have agreed a one month delay to the start of the new contracts (now commencing on 15 November 2010) to allow time for this litigation process to be resolved, and are conducting a review of the provisional award process with stakeholders to discuss any concerns they have. The LSC are continuing with their process of verifying the capacity of successful bidders, and are focussing on a small number of areas where, notwithstanding the presence of at least five providers, there might appear to be some initial cause for concern. As a result of this, and the appeal process, the final number of contracts awarded is expected to increase in some areas.

19.  A new harmonised Family Advocacy Scheme, which covers payments for public and private family law advocacy and which will be introduced as part of the new contracts in November 2010. The harmonised scheme will pay the same fees to both solicitor-advocates and barristers for the same work, resulting in a fairer system of remuneration.

20.  We anticipate that, as a result of the proposals to be put forward in the autumn to reform Legal Aid, and subject to the results of consultation on these, there may well be further changes in the provision of legal aid for Family cases.


21.  The government believes that ADR services, including mediation, have a critical part to play in reforming how the Family Justice System operates, and we believe that options to extend the role such services play in helping resolve family disputes will be an important focus of the Family Justice Review.

22.  We know that long, drawn out and acrimonious court cases can adversely impact on the long-term well-being of children and diminish a family's financial assets. In such circumstances, mediation can often represent the simplest, cheapest, fastest and least acrimonious way of resolving problems.

23.  As a result, and as part of its commitment to Transform Justice, the MoJ has already taken forward work to lay the foundations for encouraging an increase in the awareness, and use of, mediation. To achieve this, the MoJ, in partnership with the LSC, is in the process of taking forward reforms to restrict the number of exemptions available to solicitors to exclude clients from family mediation assessment meetings.

24.  Since the requirement to consider mediation was made mandatory for the legally aided sector in 1997, the number of publicly funded mediations has risen year on year from under 500 to almost 14,500 in 2009. This clearly indicates that by improving knowledge about mediation the take up of these services increases.

25.  We also know that mediation, when used, works. The success rate of publicly funded mediations now stands at 70% (with full success at over 60%[112]), which, if replicated for those privately funded individuals currently unaware of this service, could result in a significant fall in the number of private family law cases taken to court. The Family Justice System should treat everyone equally, no matter whether they are privately or publicly funded and the usage of mediation needs to be increased across both privately and publically funded cases. We are currently considering how to encourage more people to become aware of the benefits through mediation information assessments.

26.  The LSC currently have 187 family mediation contracts across England and Wales and these organisations offer mediation services across over 750 locations. In addition, the indication is that the number of family mediation contracts will increase later this year as a result of the forthcoming results from the LSC tender for this work. The MoJ is also facilitating greater collaborative working across the family mediation provider community and is working closely with the Family Mediation Council in particular to identify proportionate ways to ensure consistency across the present system of accreditation. Working collectively, we are also looking to ensure that there is the capacity to meet the potential increase in demand that people receive a consistently high quality service.

27.  Looking to the future we also know that citizens can often find more directive conciliation services helpful in resolving their problems, where binding judgements are utilised to set out a final agreement.

28.  Overall, we believe that couples who are privately funded and currently come to court regarding either disputes concerning money or issues related to children following separation, could take a greater role in resolving their disagreement themselves. Such an approach would help ensure that the limited resources available in the Family Justice System are focused on the most vulnerable and those cases that genuinely require the intervention of the court. Given this, there could be considerable benefit in establishing a more coherent and accessible service for mediation or conciliation. We anticipate the Family Justice Review will make recommendations on this area.


29.  The Government is committed to extending transparency to every area of public life. It is important that the Family Justice System, which makes major decisions about the lives of children and their families, is properly understood and commands public confidence. At the same time, there is a clear need to protect the privacy of vulnerable children and adults involved in cases in the family courts.

30.  The predecessor to the Justice Committee, the Constitutional Affairs Select Committee (CASC), conducted an inquiry into the operation of the family courts system in 2005. As part of the inquiry, the Committee suggested that lack of transparency had contributed to dissatisfaction with the Family Justice System. It recommended that to increase transparency:

—  the press and public should be allowed into the family courts, albeit under appropriate reporting restrictions and subject to the judge's discretion to exclude the public;

—  anonymised judgments should normally be delivered in public, unless the judge in question specifically chooses to make an order to the contrary; and

—  restrictions on parents discussing their cases should be removed, again, unless a specific order is made to the contrary.

31.  Following the 2005 CASC report and two subsequent public consultations, a number of steps were taken with the aim of achieving a more open family justice system.

32.  On 27 April 2009, new court rules were introduced that gave accredited members of the media the right to attend most family proceedings, subject to court discretion to exclude them in certain circumstances, with existing reporting restrictions remaining in place. Separate court rules also came into force on the same day, which allowed parties and legal representatives to disclose information relating to proceedings for specified purposes without the permission of the court. These new rules focused on the purpose of disclosure rather than the type of information and to whom it would be disclosed.

33.  The provisions in the Children, Schools and Families Act 2010, to which the Committee refers in its call for evidence, have not yet been commenced.

34.  In recognition of the significance of these reforms, and the range of strongly held views on this sensitive area, the Government wants to look closely at the changes the Act would introduce, as well as examine in detail the financial implications of this new legislation, before any final decision on implementation is taken.


35.  The Family Justice System in England and Wales is undergoing a period of radical reform, which the Government is committed to driving forward in a manner that ensures efficiency and value for money for the taxpayer, whilst delivering proportionate and effective justice for citizens. At the same time, we believe that the needs of children should be central to any reform programme and are working hard to ensure that this is the case by listening carefully to the experiences of those that have been through the system.

36.  The Government welcomes the Committee's consideration of this area during what is a significant time of change and looks forward to considering its final report alongside the recommendations of the Family Justice Review next year.

September 2010

110   For Cafcass figures see their annual report and accounts for 2009/10 at-http://www.cafcass.gov.uk/PDF/Cafcass%20Annual%20Report%20and%20Accounts%202009-10%20web%20pdf.pdf Back

111   See "Cafcass's response to increased demand for its services- available on the NAO website at" http://www.nao.org.uk/publications/1011/cafcass.aspx Back

112   Figures are from LSC data based on Mediation Provider monthly submissions on publicly funded mediation undertaken during 2009-10, full success involves those cases where no further court involvement is required. Partial success relates to where mediation resolves a significant aspect (or aspects) of a case before it returns to the Court process. Back

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Prepared 14 July 2011