Chapter 3: Family justice
103.Part 2 of the Act makes changes to both private and public family law, most of which focus on making the system simpler, faster and less adversarial. The changes apply to England and Wales.
Box 4: Public and private family law
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The Family Court, together with the Family Division of the High Court, seeks to resolve issues concerning families and children, mainly following family breakdown and disputes. The Family Court is a large body with four tiers of judiciary, from High Court Judges to lay Magistrates, with responsibility for adults and children. For adults, the main areas of work concern the making of fair financial arrangements after divorce or dissolution and giving protection from domestic abuse. For children, the work of the court is generally divided between what are termed public law and private law, though some families are involved with both in what are sometimes termed ‘cross-over cases’. In public law cases, the state has an interest in protecting a child at risk of significant harm or neglect, with applications brought by the Children’s Services departments of local authorities; some public law cases go on to consider issues about adoption. Private law cases concern disputes between individuals about aspects of parenting and children’s upbringing. Common issues include how much time a child will spend with each parent, but many cases involve allegations of domestic abuse, drug and alcohol misuse, or other child protection concerns. |
26 week timeframe
104.Section 14 introduced a maximum 26 week limit for completing care and supervision proceedings when the courts are considering whether a child should be taken into care or placed with an alternative carer. This can be extended for up to eight weeks at a time, if necessary to resolve proceedings justly.
105.As Dr Carol Homden, Chief Executive of Coram, noted, “For a six-month-old, 26 weeks is their whole life”.112 The importance of achieving a 26 week timeframe was emphasised by Lisa Harker, Director of the Nuffield Family Justice Observatory, who said that “timely decision-making is crucial for children, as we know from all the research about the impact of delay on children and the need for consistent relationships in their lives, particularly at a young age.”113 Resolution noted that the 26 week limit “helps to focus minds on resolving cases within that time if possible”.114
106.However, some witnesses noted the challenges associated with a target of 26 weeks. Professor Elsbeth Neil raised a concern that the 26 week timeframe was not sufficient to deal with some complex cases, including those of new-borns taken into care and cases of domestic abuse.115 Dr Julie Doughty, Senior Lecturer in Law at Cardiff University, noted that the 26 week timeframe may prove too constraining if a kinship carer makes themselves known very late in the process, leading to a rushed assessment.116 In these cases, a rigid adherence to 26 weeks could lead to detrimental outcomes for the child. Extensions may be needed but are not always granted. Dr Doughty warned that “on the face of it, that flexibility is there, but it is not necessarily being applied in a flexible way.”117 The NSPCC explained: “the current average length of care proceedings suggests children and families are having to endure the anxiety of repeated eight-week extensions until proceedings are resolved.”118
107.Ms Harker urged a more holistic view of the benefits and challenges of 26 weeks, saying: “An unintended consequence of the 26 week rule was that it became the success measure through which everything was judged, and we ought to go back to thinking about the best interests of the child. Yes, focus on timeliness, but also on the impact and outcomes for children, which is ultimately the most important thing.”119 The NSPCC raised concerns that “in certain cases, over-adherence to the 26 week target can prevent the use of innovative interventions, which are more likely to meet the long-term needs of the child”.120
108.The average (mean) length of time for completing care and supervision cases is well above 26 weeks. Between January and March 2022, the average time to complete care proceedings was 49 weeks, and only 17% of cases were completed within the 26 week (6 month) timeframe.121122 The average time fell between 2011 and 2016, to a low of 27 weeks, but has been rising since. Similarly, the percentage of cases completed within the 26 week timeframe steadily rose to a high of 62% in 2016 but has been falling since. Delays have also been seen in private law, with cases taking on average 46 weeks to reach closure.123
Figure 5: The average number of weeks taken to complete proceedings
Source: MoJ, ‘Family Court Statistics Quarterly: October to December 2021’ (8 April 2022): https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2021 [accessed 15 November 2022]
Figure 6: The percentage of cases completed within the 26 week timeframe
Source: MoJ, ‘Family Court Statistics Quarterly: October to December 2021’ (8 April 2022): https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2021 [accessed 15 November 2022]
109.Several reasons for the increase in delays were put forward to us. The Government’s memorandum said: “The impact of the COVID-19 pandemic led to a backlog of cases in the family courts, which significantly impacted the timeliness of proceedings.”124 However, the time taken to complete proceedings had been rising from 2017 onwards, well before the pandemic. Neal Barcoe, Deputy Director of Family Justice Policy at the Ministry of Justice. suggested that delays in obtaining expert evidence and how well local authorities engage with families also contributed to delays.125
110.Professor Judith Masson, Emeritus Professor at the University of Bristol Law School, told us that, previously, 26 weeks had been achieved by “focusing on doing what the legislation said, so a strong focus on the 26 weeks, a reduction in the number of experts, cases being properly prepared at the start and judges having what the judiciary usually call robust case management.” However, she noted that “a lot of those things have gone out the window.”126
111.Our evidence suggests that resource shortages in the courts have played a major part in delays. Coram wrote: “In many areas the 26 week rule is largely irrelevant, as there are inadequate resources, either in court time or in availability of experts to provide evidence within the timeframe”.127 Dr Julie Doughty pointed to a shortage of judges as a reason for the delays, saying: “the less judge time you have and the fewer judges you have, the less management there will be. Things become less efficient and that just builds in more and more delays.”128 Mavis Maclean CBE, Senior Research Associate at the Department of Social Policy and Innovation, University of Oxford, told us that a shortage of administrative support staff had led to judges taking on more bureaucratic tasks, which she deemed an “extraordinarily extravagant use of the time of a judge”.129 During our visit to Oxford Combined Court,, staff from HMCTS told us that the additional administrative work demanded by virtual proceedings had put them under added strain.130 Professor Masson indicated that a shortage of magistrates was also an issue in the system.131
112.We also note that Children and Family Court Advisory and Support Service (Cafcass) is under strain, which is contributing to delays. Mavis Maclean told us that Cafcass’s workload has increased, saying “It simply has more to do.”132 Jacky Tiotto, Chief Executive of Cafcass, told us about the depth of the resourcing issue:
“At Cafcass, we have resourcing problems beyond the 26 weeks. We have a backlog now of about 7,000 children that we did not have before March 2020. We do not have a solution for that. We do not have the social work capacity to manage that backlog. The easy answer for us in allocating work and getting it through is more staffing, I am afraid; it really is that basic. Even if we took out the backlog and pretended COVID had not happened, we still would not have had enough guardians to resource the demand in public law that was there at the time.”133
Professor Judith Masson summarised: “if we are making more demands on resources than we can deliver, we will get delay.”134
113.We heard that the use of expert witnesses can be a further cause of delay. Section 13 introduced a requirement that courts must give permission for expert evidence to be used in care proceedings and do so only when this is necessary to resolve the case justly. Box 5 sets out some of the most commonly used experts in the family court.
Box 5: Types of experts in the family court
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The family court makes significant use of experts in a wide variety of fields. Experts are often, though not always, appointed as ‘single joint experts’, instructed jointly by all the relevant parties. Common examples of experts used in family cases include:
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114.Research commissioned by the Department for Education found that social workers were increasingly being recognised as experts, but there was some variation in perception amongst individual judges.135 A review on the outcomes of care proceedings for children before and after the reforms, conducted by academics and published in 2019, reported that judges were happy with their ability to restrict expert testimony and hear from social workers who knew the family.136
115.The use and availability of expert witnesses was pointed to as a cause of delays in the family court. Professor Masson argued: “The more experts you have, the longer a case will take and the longer it will be before a decision is made for the child. Yet the quality of information in most cases does not really change”137 Hannah Markham KC, Chair of the Family Law Bar Association and Chair of Women in Family Law, described “an extraordinarily difficult time at the moment trying to get expert witnesses”, which is contributing to delays.138 The NSPCC wrote that there should be a focus on using professionals working directly with children, rather than relying on external experts, and that there should be a renewed focus on assessing the necessity of experts.139
116.The quality of expert witnesses was also called into question. Dr Matt Woolgar, Consultant Clinical Psychologist at the National Adoption and Fostering Service South London & Maudsley NHS Trust, told us that expert witness reports can be variable in quality, and that reports used in care and supervision proceedings may not stand up to repeat scrutiny.140 Written submissions to our inquiry pointed to the problem of witnesses who are not properly trained, qualified or experienced being used in family proceedings.141
117.Overall, there is a lack of quantitative evidence about the use of expert witnesses in the courts. Lisa Harker told us:
“ … this is a very good example of an area where there is insufficient data available … We ought to be tracking the use of expert witnesses systematically across the system, and understanding where expert witnesses are being used differently or where there are major gaps.”142
118.The Family Justice Board (FJB) is the primary forum for setting the direction of the family justice system in England and Wales and overseeing performance. Its membership includes Ministers; representatives from Cafcass, ADCS, Ofsted and HMCTS; and officials. Sir Andrew McFarlane, President of the Family Division of the High Court of England and Wales, sits as an observer.143 Officials from the Department of Justice said that the Board is “very focused on the performance of the system” and meets “regularly to discuss how the system is performing and identify where there are delays and where efficiencies could be made”.144
119.The Board is designed to represent and provide leadership to all elements of the family justice system. Our witnesses were sceptical about the extent to which such a ‘system’ truly exists in practice. Sir Andrew McFarlane, President of the Family Division of the High Court of England and Wales and Chair of the Family Justice Council, said:
“There is no system [ … ] What we have is a list of different agencies—the judiciary, the Courts Service, Cafcass, the local authorities and then the police, the health service, the Legal Aid Agency and the professions—and everybody has to co-operate with each other for a case to take place. There is no single system that requires them to work together, but we try to, and we do.”145
Sir James Munby, former President of the Family Division and Head of Family Justice, noted that while the judiciary and Cafcass have a single point of leadership, the same does not exist for local authorities as a whole. This, he said, meant: “We will never have a single, cohesive family justice system unless, somehow, we manage to solve the local authority issue, that there is no single lever there.”146
120.Jacky Tiotto told us that the Family Justice Board is “not strong enough” and that stronger leadership and an agreed business plan for the family justice system is needed.147 Sir Andrew McFarlane agreed, saying the Board “really does not work. It meets once every three or four months. This is not at all to be critical of any of the individuals, but the Ministers change; quite often it is never the same two chairs from one meeting to the next.”148 He called for the Board to have an “acknowledged and respected person co-ordinating it to draw everyone together.”149 Lord Bellamy KC, Parliamentary Under-Secretary of State, Ministry of Justice, assured us that the Government remains entirely committed to the 26 week timeframe and that the Family Justice Board is due to develop a “detailed plan, with specific KPIs and comparative dashboards across different regions of the country” to tackle the delays. However, Lord Bellamy would not be drawn on committing to a specific reduction.150
121.The 26 week timeframe imposed by the Act has generally been positive. It has helped to bring cultural change, highlighting that it is essential that children—particularly the very youngest children—receive timely judgements. While flexibility may sometimes be needed in the most complex of cases, the average case duration has been allowed to become too long. Particular causes for concern include resource pressures on local authorities and Cafcass, pressures on judicial time, the use of expert witnesses and a lack of data about the functioning of the family justice system.
122.The Act’s provisions on the use of expert witnesses have been welcome, and the intention to limit the unnecessary use of experts is a correct one. However, we are concerned that there may be variation in both the quality and frequency of expert witness usage across the courts. In cases where expert witnesses are necessary, the lack of ready availability of expert witnesses can pose further challenge to concluding cases in a timely manner. Improved data collection is needed to clarify the scale of the problem.
123.There is no easy solution to the creeping delays in family law cases, but it is clear both that more resources—and more efficient use of resources—are needed. Improved data gathering and sharing are needed to identify and tackle delays as they emerge. We recognise that the Family Justice Board faces a difficult task in trying to give guidance to the various participants within the Family Justice System, but we are concerned that it may nonetheless not be fulfilling its role to the full extent that is possible. We consider that stable, high-level leadership of the Board is essential, and recommend the appointment of an independent Chair at a senior level, with a view to the Board being able to show greater leadership and share insights with Local Family Justice Boards and others. We welcome the Government’s commitment to making a significant dent in reducing delays by 2023 but call on them to quantify the reduction they are seeking, alongside specified timescales. We urge the Government to publish a target for the timeliness of public children cases, along with an associated action plan laying out how it aims to achieve this reduction and how it will measure progress.
Data use in the family justice system
124.The availability of data is critical in order to be able to understand fully the functioning of the family justice system, and to help in identifying problems as they arise.
125.We heard in many cases about an absence of data. Professor Elaine Farmer, Emeritus Professor of Child and Family Studies at the University of Bristol, told us: “We simply do not know how many children known to local authorities are in kinship care.”151 Al Coates, founder of the Adoption and Fostering Podcast and adoptive parent, said “we do not know how many children are being adopted by parents of a different race or ethnicity. That data is not collected, and the response is always, “What do we do with that data? If we are bothered about it, we measure what matters.”152 Jacky Tiotto warned that: “The data we have on the effectiveness of proceedings and what happens to children is pretty poor. We have to be very worried about having a family justice system that does not know how children fare in it.”153
126.Witnesses also highlighted a lack of longitudinal data which allows the tracking of outcomes of cases. Mavis Maclean told us:
“We know so little about mediation. It is one of the big data black holes in the family justice world. We do not even know whether people who have been to mediation and have come to some form of agreement show up in court six months later”154
Professor Rosemary Hunter, Professor of Law and Socio-Legal Studies at the University of Kent, said, on court orders, “…the court has no way of following up on what happens after orders are made, unless there is a return to court or enforcement proceedings. The court does not routinely gather any information on what happens as a result of the orders that it makes”.155
127.Our witnesses called for improved data collection and use in the family justice system. Professor Judith Masson said: “We need more and better data in the system, and it needs to be fed back to the courts in order to get much more similarity in decisions, much more consistency and equal justice across the court network.”156 Lisa Harker told us: “The data that we have on the family justice system is in its infancy but improving, and a huge amount could be achieved by sharing that information and trying to understand why some areas seem to be working better than others.”157 Sir James Munby summarised that “To get uniformity of performance, one needs proper data.”158
128.Improved data collection and data sharing are necessary to track the performance of the family justice system, identify regional inequalities and ensure consistent outcomes for children and their families. The current absence of sufficient data on court outcomes is an evident failure of the system, and without improved data the Government is at risk of making major policy changes which have far reaching impacts on the lives of children and families without a sound evidentiary basis. The Government should improve its collection and sharing of data on the family justice system.
Mediation and early legal advice
129.Section 10 requires anyone wishing to make a relevant family application159 to attend a family mediation, information and assessment meeting (MIAM) to learn about and consider mediation. A MIAM lasts approximately an hour, during which time the situation will be discussed with a mediator who will provide information about mediation and a judgement on whether mediation may be appropriate for the case in question. Only the applicant is required to attend a MIAM, with no similar duty on the respondent. There are exceptions for attendance at a MIAM, including domestic abuse, urgency, and child protection concerns.
130.In its post-legislative memorandum, the Government stated that take-up of MIAMs and mediation had been “lower than anticipated”, but later clarified that it did not publish any specific targets.160 It did note that data collected from HMCTS suggested that only 35% of applicants to the family court attended a MIAM when their application type would have required MIAM attendance unless a valid exemption were claimed.161
131.MIAMs, and by extension mediation, are intended to divert cases which may not need to be heard by the courts. However, our witnesses felt that too much focus had been placed on this group who may theoretically benefit from mediation and be able to avoid court proceedings. Professor Rosemary Hunter said: “It seems that there has been an awful lot of legislative and policy effort focused on trying to reroute that small minority (who do not need to go to court).”162 Sir Andrew McFarlane also felt it was unfortunate that only the applicant is required to attend a MIAM, rather than both parents.163
132.Mavis Maclean was also concerned about efforts to dissuade people from the courts, saying “a court is there to help people”, and noted that very little is known about mediation, calling it “one of the big data black holes in the family justice world”.164
133.Furthermore, witnesses were critical of the focus on mediation over other forms of non-court dispute resolution. Sir James Munby argued:
“ … one of the great disasters and one of the great mistakes by government in 2013 was identifying mediation as the non-court solution [ … ] We need to encourage people to use all of these techniques, recognising that one technique may suit one case and another technique may suit another couple. The idea that one techniques suits everybody and all cases is, I am afraid, simply silly.”165
Sir Andrew McFarlane told us: “we owe it to society to form a whole range of options. It is a mistake to think it is just mediation”.166 The Ministry of Justice is “seriously considering further measures to make reasonable efforts to mediate more or less obligatory in family law cases”.167
Box 6: Non-court-based dispute resolution methods
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Many families enter into private arrangements reached entirely informally, with no formal input from any professionals beyond possible background advice. For those families unable to reach a private agreement on their own, there are a number of established alternatives, other than applying to the family court. The most well-known non-court resolution method is mediation, where a trained independent mediator assists the parties to try to reach an agreement between them. If agreement is reached, it is recorded in a Memorandum of Understanding, and can be used to form the basis of a consent order if the parties want their agreement to be legally enforceable. Arbitration is a process more like a court case, but where the parties appoint an independent arbitrator (who is usually a senior lawyer or retired judge) to resolve the dispute. Arbitrators’ decisions are binding on the parties, and there is a formal process required to enter into arbitration. Other methods may involve lawyers but do so outside the courts. Collaborative law is a lawyer-led method where the parties’ lawyers commit to trying to reach agreement by negotiation, with the lawyer(s) precluded from acting for their client if court proceedings are commenced. Less formally, solicitors usually seek to negotiate informally before and after court proceedings are initiated. A newer process is referred to as ‘one lawyer, two clients’, where a single lawyer meets with both parties, receives relevant background, and gives independent advice about the likely outcome of the dispute, with both parties receiving the same information. A similar process can be undertaken by way of early neutral evaluation, where parties (usually each having their own lawyer) approach a neutral (legal) expert to assess the case and provide an independent assessment. |
134.The impact of the Act, both generally and specifically in relation to MIAMs, cannot be separated from the context of other reforms to the family justice system which were occurring at the same time. The Act came two years after the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which introduced funding cuts to legal aid. Private family law
(i.e. disputes between private individuals, such as divorce and private children proceedings) was removed from the scope of legal aid, other than for limited exceptions mainly requiring an applicant to show that they were subjected to domestic abuse. The financial means test was changed, ending automatic eligibility for those in receipt of means-tested benefits, and reducing the limit on the maximum income and capital an individual can have to qualify for legal aid. Legal aid is generally available in two forms—legal help and legal representation. Legal help entails initial advice and assistance to solve a problem, while legal representation refers to formal representation by a solicitor or barrister in court or at tribunal.
135.Neal Barcoe from the Ministry of Justice said that there had been “a significant drop in the number of mediated sessions following the introduction of LASPO”.168 He also suggested that there are misconceptions about what mediation entails, saying: “a common refrain will be, ‘I don’t want to do marriage counselling’ or comments of that nature.” He also noted that while MIAMs are theoretically obligatory, in practice they are not always enforced as parties are reluctant and judges may wish to proceed with the case as quickly as possible to protect the interests of the child.169
136.Sir James Munby argued: “Money properly spent at an early stage usually pays dividends later on. One of the great tragedies of LASPO is that what the elderly amongst us fondly remember as green form legal aid has gone and there is a desperate need to have proper legal advice right at the outset, if only to manage expectations.”170 Under the Green Form scheme, solicitors could provide limited legal advice and assistance on the basis of a simplified income and expenditure test.171 Sir Andrew McFarlane also drew our attention to green form legal aid and said it had “paid dividends”, but suggested that it should be replaced with, “some form of professional who might be able to signpost them to mediation and to some form of educational videos, books and information about dispute resolution or to a lawyer would be helpful.”172 Lord Bellamy was clear about the value of early intervention, telling us “it is probably a good use of public resources to invest further in mediation and early resolution of these very difficult cases.”173
137.Dr Julie Doughty raised concern that the cuts to legal aid had just shifted costs to other parts of the court system, “because it is those working in the Courts Service who are having to deal with these cases where litigants in person, understandably, do not know how to conduct the cases and are therefore taking more time than if they had had some sort of advice.”174 Professor Judith Masson agreed with this, saying that “there are cases going to court that lawyers would have headed off. With legal aid, a lawyer would have said, ‘No, it’s not worth taking this to court’ or ‘Try mediation’. That has been lost.”175
138.Our witnesses recommended better signposting and education about all non-court-based resolution options, not just mediation, as a solution. Professor Hunter recommended a government maintained list of non-court options, early legal advice and preparation prior to attempting mediation, and comprehensive signposting of information at all stages in the family court.176 As noted above, Sir Andrew recommended signposting to mediation, legal professionals, and books and information about dispute resolution.177 Similarly, Resolution recommended replacing MIAMs with a broader Advice and Information Meeting (an AIM) earlier in the separation process, and which focuses on all methods of dispute resolution.178
139.Mediation can help to divert cases from court, helping parties to reach settlement and limiting the burden on court time. However, in many cases mediation is not appropriate. Some couples have genuinely intractable disagreements which require court intervention to settle. The Government’s focus on mediation as a mechanism of reducing the court backlog, to the exclusion of all other forms of dispute resolution, is excessive and we have serious concern about any moves to make mediation functionally compulsory
140.MIAMs have been ineffective and had low engagement rates. Their singular focus on mediation combined with no requirement for the respondent to attend and a perception of MIAMs as a form of relationship counselling have hampered their success. Many couples would instead benefit from a source of clear, impartial information on separation and, if necessary, general legal advice which can direct them to non-court or court-based resolution as appropriate. Some couples, having received this information, will still have reasons to continue towards the court to try to resolve disputes. Legal representation in these cases can help improve the efficiency of these cases, but the absence of legal aid in many private law cases has precluded this.
141.We recommend that the Government produce and maintain a website which provides impartial advice for separating couples, helping them to understand the family justice system and what the courts can resolve, as well as what they cannot. We urge the Government to reconsider its proposals to make mediation effectively obligatory. Instead, we recommend that the MIAMs and mediation voucher schemes be replaced by a universal voucher scheme for a general advice appointment, at which point individuals can be signposted to alternative dispute resolution mechanisms, including mediation. We recommend that the Government urgently evaluate the impact of the removal of legal aid for most private family law cases, considering where reinstating legal aid could help improve the efficiency and quality of the family justice system.
Children and the family court system
142.Under the Children Act 1989, the family court is guided by the principle that “the child’s welfare shall be the court’s paramount consideration” in making decisions about them, often referred to as the ‘paramountcy principle’. This consideration includes the ascertainable wishes and feelings of the child concerned, considered in the light of their age and understanding. While the principle that the child’s welfare should be paramount has since been complicated by the presumption of parental involvement, the interests of the child should still be front and centre in family law proceedings.
143.The current guidance for judges about when they should meet children directly, and the purpose of such meetings, is set out in the ‘2010 Guidelines for Judges Meeting Children Who Are Subject to Family Proceedings’. The Guidelines are intended to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives. The Guidelines give judges discretion about whether to meet children and what the purpose of the meeting should be, but stress that the child’s meeting with the judge is “not for the purpose of gathering evidence”. Instead, the purpose of the meeting is to “enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her”. 179 These are guidelines for judges and practice may vary between individual judges.
144.During our session with members of the Family Justice Young People’s Board, they made repeated pleas for their voice to be listened to and respected by those working in the family justice system. One member told us that their parents’ divorce proceedings lasted 10 years and were only resolved when they were able to speak directly to a judge and express their wishes. Another went through multiple foster placements, and although they were always asked for their views, they felt nothing was ever done about it - their views disregarded because of their age. One member was deliberately not told information about proceedings, with the justification being that they were too young to understand, something they strongly disputed. Another was forced to have regular contact with an abusive parent despite telling the courts they did not want this to happen.180
145.This experience of the voice of the child being marginalised was echoed in a private evidence submission we held. An independent social worker told us: “The ‘Voice of the Child’ is not only not heard but is often suppressed or dismissed and children have no one external to the proceedings that they can speak to.”181
146.Witnesses have generally told us that the experiences of children and young people is variable, and that their voice is not always welcomed or enabled. Hannah Markham KC told us that there is room for improvement and pointed to a crisis in Cafcass resourcing leading to a diminishing in the voice of the child: “we are a long way away from where we were 10 or 15 years ago, when Cafcass would have the time and the luxury—it is now a luxury—to pop in and see children more often at school, and to make them feel more included in the process”.182
147.Cafcass is responsible for representing children in family court cases in England and plays a crucial role in ensuring the voice of the child is heard. However, Jacky Tiotto told us that “…the voices of children are still quite quiet in the system. It is still a very adult-dominated system, certainly in private law.”183 She stressed the importance of listening to children and young people: “The proceedings are about them, their lives now and their future lives. There is nothing more important to them than whether they live with their parents and whether they spend time with them and/or how they see them.”184
148.Lisa Harker discussed the work the Nuffield Family Justice Observatory did on children’s experience of private law proceedings:
“ … children often feel very left in the dark about what is happening in their parents’ separation. Children often seem to know more than their parents think about what is going on … children feel unheard in court proceedings, and this can cause them distress… we know that children want to be involved in decision-making”.185
149.Our evidence points to a need to make sure the child’s voice is heard as standard. Resolution recommended the establishment of a more formal framework to explicitly set out how the court and Cafcass will account for the voice of the child. They suggested “a statutory requirement that the issue of how the voice of the child will be heard specifically in the particular case should be addressed at the first hearing”.186 Representatives of the Family Justice Young People’s Board recommended training for judges on how to speak to children.187 We note that current policy instructs that judges should not see children for the purpose of gathering evidence, and that care must be taken to distinguish between meetings which are for the purpose of gathering evidence and those which are not.188
150.The voice of the child is not always heard and respected in the family justice system. The welfare of children should be the courts’ paramount consideration, and children themselves can be best placed to speak about what is in their best interest and should be involved in decisions about their futures. We have heard that children and young people don’t feel that their voices were heard properly heard in court proceedings, and that they felt that decisions might have been made more quickly and more in line with their wishes if they had been able to speak to the judge directly. We are concerned that Cafcass do not have the resources to devote to soliciting and following up on children views.
151.We recommend that, in order to formalise the voice of the child in proceedings, initial hearings should address the issue of how the voice of the child will be heard during the case. We also recommend that the Family Justice Council reviews the guidance setting out the approach taken to judges meeting with children. In so far as there may be a basis for a change of approach, the Committee further recommends that the Family Justice Council and the Judicial College give thought to the training needs of judges in this area and the sharing of best practice.
The presumption of parental involvement
152.The Children Act 1989 set the framework for how courts should decide whether and how much children spend time with separated parents. The Act states that “the child’s welfare shall be the court’s paramount consideration” in making decisions about them. Box 7 lists the more specific considerations set out in the Act.
Box 7: Considerations of the court when making decisions about children
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Source: Children Act 1989, section 1
153.Some raised concern that judges’ interpretation of the Act was biased against non-resident parents, particularly fathers.189 This concern was based on anecdotal evidence rather than systematic analysis. Indeed, an academic study of 174 cases across five county courts in 2011 found no indication of bias. It found, conversely, that courts “actively promoted as much contact as possible even in cases of proven domestic violence, often combined with welfare concerns or strong opposition from older children.”190
154.Section 11 of the Children and Families Act 2014 amended the Children Act 1989 in a way which was intended to make clearer to separated parents that courts will take account of the principle that both parents should continue to be actively involved in their children’s lives, and encourage more parents to resolve their disputes out of court by making that principle explicit in the legislation. It introduced a presumption that, unless the contrary is shown, the involvement of a given parent in the life of the child concerned will further the child’s welfare. ‘Involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time. The Court can disapply the presumption if it has some evidence before it which suggests “that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.”
155.In 2011, the then Government’s Family Justice Review, chaired by Sir David Norgrove, had argued: “The law cannot state a presumption of any kind without incurring unacceptable risk of damage to children.”191 The Ministry of Justice’s expert panel report on the presumption in June 2020 suggested that this concern had become a reality. Drawing on 1200 evidence submissions, as well as focus groups and roundtables, it concluded: “the presumption is implemented inconsistently and is rarely disapplied. To the extent that the courts’ pro-contact culture operates as a barrier to addressing domestic abuse, it serves to reinforce that culture.”192
156.Professor Rosemary Hunter told us:
“The presumption might well be true for the average child, but children in the family court are not the average child. There are significant safeguarding risks so they need an individual welfare determination. You want the court to be thinking carefully about the specific welfare needs of the individual child in the case, rather than applying the presumption.”193
157.We heard stories consistent with the expert panel’s finding that the presumption is rarely disapplied. Mothers Against Coercive Control and Violence spoke of a policy of “contact at all costs”, telling us: “We find commonly that under section 11, men who have been convicted of serious offences against the mother or even against the children themselves are still given unsupervised contact with their children.”194 The organisation provided accounts of several stories of dangerous fathers being granted contact with their children, including two of fathers who had previously been convicted of sexual offences against other children. We also heard similar harrowing stories in private written evidence and in response to our survey.195
158.Dr Sonja Ayeb-Karlsson and Dr Adrienne Barnett argued that the presumption has “caused tremendous harm to vulnerable children and women in our society”, referring us to two reports showing that the presumption has shifted the balance in favour of domestically abusive parents.196
159.A common complaint was that the presumption not only undermines the paramountcy of children’s welfare—in the words of one member of the Family Justice Young People’s Board, “putting parents’ rights above children”—but, more specifically, that it puts parents’ wishes before those of children, undermining the principle in the Children Act 1989 that “the ascertainable wishes and feelings of the child concerned” should be taken into account”.197 For example, an independent social worker responding to our survey described what they said was a typical case, of two daughters who “have both been adamant throughout that they want to live with their mother and they continue to state this, but this is ignored or dismissed.”198
160.Professor Hunter concluded that repealing the presumption is the only option: “You can keep tinkering with the legislative wording, but ultimately we need to return to individualised welfare consideration, and so back to Section 1(1) [of the Children Act 1989], which was there all along, that the individual welfare of the child is the court’s paramount consideration.”199
161.By contrast, some witnesses told us that—while a stronger presumption would put children at risk—section 11, though having little or no effect, had not harmed children and therefore should not be repealed.
162.Mavis Maclean said that the amendment had support from a range of parties and had represented a compromise. She concluded that: “I think it is just about okay and any alteration now would just be stirring up trouble.”200 Sir James Munby agreed that although, in principle, “it is something that you should not find in a statute”, it should remain as diluting or removing it would “raise a storm of protest.”201
163.Sarah Blackmore, Joint Head of Chambers at Spire Barristers, was also broadly of this view. She told us: “I am not sure that it has had a major impact on the family court and the way the court has always approached private law cases.”202 Judges in Oxford shared this view that the presumption had not changed anything.203
164.Although agreeing that the presumption had had little effect, other contributors—largely those representing fathers—felt that it should be strengthened. Bob Greig, co-director and co-founder of Only Mums and Dads, said: “I do not understand what power the presumption has, because the daily emails I get from dads suggest that it is not working at all.” He rejected the idea that there is a ‘pro-contact culture’ and argued: “no one is accounting for the harm done to those children who suddenly have a father or grandparents removed from their daily life.”204
165.Families Need Fathers agreed: “This section has made no practical difference to the barriers facing ‘non-resident parents’ who have been excluded by the other parent from the child’s life.” Viewing the definition of ‘involvement’ as too weak, the organisation recommended: “a presumption that the child’s welfare will be furthered by both parents playing a full and active part in the child’s care and upbringing.”205 Peter Wight and Gender Parity UK went further, recommending a presumption of equal parenting time.206
166.Gender Parity UK suggested that there is a culture of what they deemed ‘safetyism’, which limits contact: “Rather than seeing safety as one concern among many, it becomes a ‘sacred value’ under a psychological framework similar to religiosity, and overrules other considerations to the extent that children’s overall welfare interests are harmed.”207
167.Following the report of the Ministry of Justice’s expert panel, the Government is reviewing the presumption.208
168.We have heard a range of views on the presumption of parental involvement and recognise that it is highly contentious. We take the view that in the majority of cases it is beneficial for both parents to be involved in a child’s life. However, every case is different. Each child’s welfare—including, to the appropriate extent, their wishes—must be paramount and judged according to their individual situation. Nothing should be allowed to undermine this. We are concerned by evidence that in at least some cases the rights of parents may be being put ahead of the rights and welfare of children. Nevertheless, there is a clear lack of adequate data on the effect of the presumption, both on court judgements and on how it sends a signal which affects how cases are settled out of court. We welcome the Government’s review of the presumption.
169.The Government should carefully consider the findings of the review of the presumption of parental involvement and make any legislative or other changes necessary to ensure that children’s welfare is always put first.
117 Ibid.
121 MoJ, ‘Family Court Statistics Quarterly: October to December 2021’ (8 April 2022): https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2022/family-court-statistics-quarterly-april-to-june-2022#children-act---private-law [accessed 28 October 2022]
122 MoJ, ‘Family Court Statistics Quarterly: January to March 2022’ (30 June 2022): https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2022/family-court-statistics-quarterly-january-to-march-2022#children-act---public-law [accessed 28 October 2022]
123 MoJ, ‘Family Court Statistics Quarterly: April to June 2022’ (12 October 2022): https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2022/family-court-statistics-quarterly-april-to-june-2022#children-act---private-law [accessed 15 November 2022]
130 See Appendix 9.
135 DfE, Impact of the Family Justice Reforms on Front-line Practice Phase One: The Public Law Outline (August 2015): https://www.familylaw.co.uk/docs/pdf-files/Family_justice_review_the_effect_on_local_authorities.pdf [accessed 28 October 2022]
136 School of Law, University of Bristol, Child Protection in Court: Outcomes for Children, Establishing outcomes of care proceedings for children before and after care proceedings reform (2019): https://research-information.bris.ac.uk/ws/portalfiles/portal/214931511/FINAL_REPORT.pdf [accessed 28 October 2022]
143 HM Government, ‘Family Justice Board’: https://www.gov.uk/government/groups/family-justice-board [accessed 28 October 2022]
148 Ibid.
159 These include child arrangements orders, parental responsibility orders, special guardianship orders, orders appointing a child’s guardian and orders giving permission to change a child’s surname or remove a child from the United Kingdom.
171 Sir Henry Brooke, The History of Legal Aid 1945–2010 (September 2017), p 8: https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf [accessed 28 November 2022]
175 Ibid.
179 Family Justice Council, Guidelines for Judges Meeting Children who are subject to Family Proceedings (April 2010): https://www.judiciary.uk/wp-content/uploads/JCO/Documents/FJC/voc/Guidelines_+Judges_seeing_+Children.pdf [accessed 28 November 2022]
180 See Appendix 12.
181 See Appendix 5.
187 See Appendix 12.
189 ResearchGate, ‘Reading the Runes: Conflict, Culture and “Evidence” in Law-making in the UK’ (April 2017), p 39: https://www.researchgate.net/publication/318703714_Reading_the_Runes_Conflict_Culture_and_Evidence_in_Law-making_in_the_UK [accessed 7 November 2022]
190 Dr Maebh Harding and Dr Annika Newnham, How do County Court share the care of children between parents? (May 2015), p 9: https://www.nuffieldfoundation.org/wp-content/uploads/2019/11/Full20report.pdf [accessed 31 October 2022]
191 MoJ, Family Justice Review (November 2011), p 4: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217343/family-justice-review-final-report.pdf [accessed 28 October 2022]
192 MoJ, Assessing Risk of Harm to Children and Parents in Private Law Children Cases (June 2020), p 88: https://consult.justice.gov.uk/digital-communications/assessing-harm-private-family-law-proceedings/results/assessing-risk-harm-children-parents-pl-childrens-cases-report.pdf [accessed 28 October 2022]
195 See Appendix 5 and Appendix 6.
197 MoJ, Assessing Risk of Harm to Children and Parents in Private Law Children (June 2020), p 77: https://consult.justice.gov.uk/digital-communications/assessing-harm-private-family-law-proceedings/results/assessing-risk-harm-children-parents-pl-childrens-cases-report.pdf [accessed 28 October 2022]
198 See Appendix 6.
201 Ibid.
203 See Appendix 9.
206 Written evidence from Peter Wight (CFA0037) and written evidence from Gender Parity UK (CFA0039)
208 MoJ, ‘Child protection at heart of courts review’: https://www.gov.uk/government/news/child-protection-at-heart-of-courts-review [accessed 4 November 2022]