systemic failing | Child Protection Resource

Everyone knows it isn’t working – what can we do about it? And what should we STOP doing?

This is the presentation I gave to Families Need Fathers on 18th March 2023

The focus of my talk will be on the private law children system – care proceedings also face significant barriers to effective and efficient resolution but the pressures there are different and much more closely tied to the vulnerabilities of many of the parents and children and the lack of easily identifiable and obtainable resources for those with significant mental health and substance abuse issues.

I have been to some interesting conferences and heard some interesting talks over the years, and I will try now to briefly distil what everyone seems to agree is the problem. Because if we are clear about why family law is difficult, we are better directed to how we can attempt to fix it.

It seems that we have all been talking for a long time about the problems inherent in the family justice system. It’s costing the Government an enormous amount of money, even after removing legal aid from private children work. In 2007/08, there were around 35,000 applications. This rose to around 48,000 in 2012/13 and 2013/14. Numbers then fell significantly after legal aid changes were introduced in 2013. However, the number of applications has now almost recovered to previous levels, with 46,500 applications made in 2019/20. Since 1 April 2022 to February this year Cafcass has received 36,487 new private law children’s cases. These cases involved 55,627 children.

Unsurprisingly, there is clearly significant political will to reduce the number and costs of cases coming into the family justice system. What we haven’t yet agreed is how we do this and how we can best distinguish between cases where there are significant safeguarding issues and cases where there are not. And this would appear to be the crucial distinction.

What makes family law so difficult? Other forms of law are generally designed to correct past wrongs. Family law however is directed to identify the best outcome for children when relationships break down, or the fairest re-allocation of matrimonial assets after divorce. Relationship breakdown is not exclusively or primarily a legal issue – it involves often deeply unsettling emotional distress.

Emma Sutcliffe, a contributor to The Child Protection Resource put it this way in 2019.

People hate family court for the same reasons they hate hospitals; something pathological has happened to you that you cannot resolve alone, and you have to put your life in the hands of people who are deemed to be more expert about your condition than you are. If you’re in family court you’ve likely been through something painful, there’s no guarantee it will stop hurting and the interventions themselves cause bruises. There’s also a hefty bill at the end and the surrounding quality of life direct and indirect costs of loss of earnings and utter exhaustion. Plus … like lots of diseases, it might not go away, it might come back; next time it could be fatal.

Under conditions of extreme stress even usually robust people can experience intense emotions and project negative feelings onto former partners. Family separation is always stressful for children but there is no doubt that children who are exposed to acrimonious conflict, suffer long term negative impacts. Research from the Nuffield Family Justice Observatory has shown that even before starting court proceedings, parents were vulnerable. Parents in private law proceedings had higher rates of mental health distress, including anxiety and depression when compared to the general population. There were higher rates of self-harm and exposure to domestic abuse as either victim or perpetrator.

The Family Justice Council organised a conference in April 2022. The keynote address was given by Helen Adam who is the Chair of the Family Solutions Working Group. This was set up by High Court Judge Sir Stephen Cobb in 2020 as a multi -disciplinary group of professionals who work with parents and children from separated families to consider what can be done to improve the experience of children and families before any application is made to the family court.

The over-arching theme of Helen’s address was that the adversarial system is harmful, and we need to think about how to get cases outside the court arena. The aim is to reduce parental conflict.

This echoes findings of the Family Court Reform Coalition Report in July 2022, which identified three reasons why the problems have developed.

a vicious cycle of ‘perverse incentives’ which drives the process in the opposite direction to the one intended.
a lack of standardised practice, combined with an approach which is unnecessarily adversarial, creates delay, drives up costs and damages children.
a lack of systemic research into the effectiveness of outcomes so the system cannot learn and improve.

The adversarial system is identified repeatedly as a big part of the problem. It is clearly the last place any stressed and anxious parents need to be. What we have currently is a just a hotch potch of efforts at intervention and support. Cases that drag on for years – as many do – are clearly going to cause children lifelong emotional damage. We can all see how easily and quickly situations become polarised and how the children suffer the most when caught in the middle.

Helen rightly queried calling this the ‘Family Justice System’ – If that is what is said on the tin, that is what people expect – they want to ‘win’ or to exact retribution. David Norgrove said our system is about ‘least worst outcomes’. If we renamed the FJS as ‘least worst outcome system’ would so many people want to go through it?

If we don’t want families to go to war, we need to offer them something else.

But what exactly is this something else?

Throw psychological distress, worry about financial security or the safety of your children into the mix, the lack of judicial continuity, lack of access to help with legal costs and serious delay, there is little wonder that the ‘Family Justice System’ is dysfunctional and overwhelmed. As Helen noted, the problem seems too huge and difficult to overcome and we end up in state of depressed helplessness. Hopefully discussions like we are having today can help cut through that fog.

She identified some possible solutions.

political support that crosses party lines.
public education programme to correct wrong language and wrong attitudes which are outdated.
authoritative website – a go to place with clear information for parents and children.
Resourcing ‘touchpoints’ – GPs, schools – to provide information and signposting about separation.
direct support for children – voice of child is key component but giving a child a ‘right’ to be heard doesn’t help if it can’t be exercised.
Mediation – but this needs triaging as some cases involving abuse just aren’t suitable.

I certainly wouldn’t say ‘no’ to any of this if by some miracle the money could be found to pay for it, but I do not think the focus on ‘more information’ is what will do the most help, given what we know about the emotional states of many parents in proceedings. Mediation is often touted as the ‘cure all’ but it doesn’t seem that the introduction of compulsory Mediation Information and Assessment Meetings (MIAM) since 2014 has had any impact. Those who don’t want to mediate, won’t. Where there are serious issues of violence or alienation, these will not be resolved by ‘mediation’ or a leaflet.

I estimate that about 10% of cases involving separated parents will be impervious to mediation, support, or ‘re-framing’ – these are cases which involve men and women who are truly damaged and dangerous and who require a robust court structure to minimise the harm they do.

I think it is vital that we recognise this so that all of us ‘in the system’ can best direct our efforts.

The pilot scheme.

So, what about the new pilot scheme? This is now running until February 2024 in some courts in Dorset and Wales. See Practice Direction 36Z para 2.1

The revised process has been designed for all court users, but with a particular focus on improving the experience of the family court and outcomes for survivors of domestic abuse, including children and litigants in person. The pilot seeks to test a more investigative approach, featuring earlier gatekeeping and information gathering to enable earlier triaging decisions and to front-load engagement with parties rather than engaging through multiple hearings. The court will also seek to hear the voice of the child more clearly through each case in this pilot, with the aim that appropriate engagement and communication are considered throughout proceedings. A more holistic, multi-agency approach is planned, with the court engaging and developing positive working relationships with key local partners such as mediators and local authorities. A review stage during the pilot process will aim to ensure that court orders meet the welfare needs of the child and reduce the number of cases which come back to court.

Those involved at the outset hoped to see the development of ‘three tracks’ – safeguarding for cases where domestic abuse is an issue, a co-parenting approach in cases where safeguarding is not an issue and returning cases. This means triaging cases with good early social work intervention and managing the case flexibly in the way best suited to the individual case. Cases where contact has broken down completely should be prioritised as urgent.

The non-urgent cases could have a built in ‘pause’ to consider SPIPS, mediation, parenting programmes. No one should make assumptions about what families need but there should be more listening to and understanding issues, anxieties, stresses, and emotional resilience, what is working and what is not and how they think they could be supported.

And discussion of costs consequences for parties who fail to engage without good reason – now, costs orders in family cases are seen as the exception and not the rule.

Sadly, I do not usually go to the Devon or Welsh courts, so I have no direct experience of how this pilot is working. I did however speak to a barrister who does a lot of work in Bournemouth only a few days ago and she was pessimistic, saying what was needed was more focus on allocating private law cases to judges with experience and allowing judges greater control over the timetabling of cases.

I will be very interested to know how the pilot has been working and whether there is any political will to roll it out nationally and commit to the additional resources that will no doubt be required.

What can we do right now?

But what do we do while we wait? we all know it isn’t working – is there anything we can do to make things better right now?

Speed it up

A quick and obvious fix would be to insist on strict time limits as we have with public law proceedings. Although there is concern that the time limits are often exceeded, I think the statutory requirement for 6 months from start to finish has had a positive impact on cases which otherwise limped on for a year or more when I first started out in 1998.

Triage

I think a key intervention and reform is more effective triage of cases – to better and more quickly distinguish between the ‘vulnerable’ and the ‘vexed’. Time is of the essence! A year in the life of a young child is a very long time. The majority of my ‘intractable cases’ ended only when the child had aged out of the system – we are talking about cases running for five years or more.

Effective triage is something that we don’t necessarily need huge amounts of additional resources to do, but it means we do need time and space to be able to think about the cases before us and what they need. We need to firmly discourage interventions that are based on political campaigning or assumptions. This has done considerable harm and wastes our time.

Examine other jurisdictions

We can investigate what is being done well in other jurisdictions which show that the family court can be at forefront of initial non adversarial triage system which can have encouraging outcomes including less delay. The Family Law Reform Coalition note that the family Courts in Israel appear to be doing well, with a ‘one family one Judge’ policy and mandatory pre-filing information and alternative dispute resolution sessions for litigants, alongside immediate and swift procedures when abuse and maltreatment are alleged. Many jurisdictions have introduced a presumption of shared care and that seems to have positive outcomes.

What do we need to stop?

However, I know that our chances of success at reforming the family justice system are even slimmer while it is left as a plaything for various lobby groups or we are diverted by a disproportionate focus on ‘increased transparency’ as the solution.

The Ministry of Justice Harm Report in 2020 came into being after critical reporting about family cases on the Victoria Derbyshire show. It initially promised a 3-month turn around, appeared to rely uncritically on the approximately 1, 200 reports of ‘lived experiences’ without any assessment of the truth or otherwise of their assertions.

I wrote about my concerns in 2019.

there is a problem what I shall call the ‘DV Sector’, for want of a better title. There are a number of individual women and organisations who garner a lot of media attention, who have books and talks to promote and apparently the ear of credible and influential law and policy makers, including serving MPs. The narrative that some of them promote I think is actively harmful to reasonable debate and the rule of law. Their reaction when challenged is alarming. More people in the sector need to have the courage to speak up about this.

I commented that this observation from the Harm Report was ‘powerfully naïve’.

Nor can we tell how representative the submissions are of all court users and professionals. As with all inquiries, the individual and organisational submissions and engagement in the data gathering process were voluntary. There is therefore likely to be some selection bias. Individuals who are largely satisfied with the process and outcomes in the family courts may have less incentive to provide evidence. Similarly, professionals who work in the system may have more incentive to defend how the system operates.
Nor can we test the accuracy and completeness of the accounts given. It is not possible to have an ‘objective’ account of what occurred in each case. Qualitative evidence presents the perceptions and views of individuals and organisations that respond. These views will be influenced by the attitudes, cultural context, organisational culture, specific role in the proceedings and individual biases of those providing evidence. They can also be subject to recall bias. The panel was well aware that submissions can be based on misunderstandings, misapprehensions or deliberate distortion as well as wishful thinking.
Despite these inherent limitations, we are persuaded that the evidence gathered does identify systemic problems with how family courts deal with domestic abuse cases and cases raising other risks of harm in private law children cases. It is unlikely that the panel has managed to uncover only isolated mistakes or rare events. The evidence does point to issues affecting multiple cases across the system and with potentially serious effects, although we were also able to identify instances of good practice.

Hopefully my arithmetic is accurate. The report claimed ‘over 1,200’ responses. If I generously assume 1,300 negative reports and take the 46,500 applications in 2019/20 as representative of the likely numbers of applications in the year preceeding the Harm Report, then the negative and unverifiable accounts represent about 3% of all applications in one year. It is ludicrous to base policies on such poor data and it is alarming how many in positions of power and influence seem to embrace this.

It seemed to me clear where all this was supposed to be leading – to a landmark Court of Appeal case that would finally declare the Family Justice System as unable to even identify, let alone tackle, issues of abuse and violence.

That decision of re HN and others in 2021 https://childprotectionresource.online/guidance-from-the-court-of-appeal-about-domestic-abuse-cases/ appears ironically to have had rather the opposite impact to that hoped for by those who predicted it would be the final expose of the failures of the FJS to deal with domestic violence. My experience on the ground is that it has has re-iterated the need for courts to look very closely at PD12J. The courts have risen to that challenge and in many cases following Re HN rejected the need for any finding of fact about alleged violence (a very useful case for further consideration of all the relevant principles is A & Anor v B & Ors [2022] EWHC 3089 (Fam) (02 December 2022).

The consequences of being led by campaigners who assert that the biggest problem in the FJS is violent men and a court system that props them up, is shown by the prohibition of direct cross examination of an allegedvictim of abuse by an alleged perpetrator, introduced by section 65 of the Domestic Abuse Act 2021.

Rather than have a judge attempt cross examination on behalf of a litigant in person, which would clearly be inappropriate, the gap is supposed to be plugged by the ‘Qualified Legal Representative’ scheme. However, recent feedback has been concerning – It seems as if only a few 100 barristers have signed up for the scheme which isn’t anything like enough, and this is going to lead to more cases being adjourned and delayed. Lucy Reed crunched some numbers in her recent blog – very few lawyers are likely to be willing to work at a loss.

We have all noted the constant back and forth regarding parental alienation and domestic violence. The family justice system is denigrated by various campaigners and lobbyists as either a tool of misogynistic oppression or deliberately designed to freeze out fathers. Of course, both cannot be true at the same time. There are certainly violent men in the family courts, alongside emotionally abusive women. Adherence to one or the other of these extremes and calling for the FJS to ‘respond’ guarantees that cases cannot be properly assessed and triaged. All the energy wasted on arguing about whether parents do actively attempt to alienate their children from the other parent – they do – and what label we should put on this behaviour, is energy diverted from finding solutions.

Will increased transparency about what goes on in the courts help any of this? Sadly, I don’t think so. There are some notable exceptions, but many journalists do not wish to report about the family courts, but act rather to promote lobbyists. Investigative journalism is expensive and we can no longer rely on journalists as a profession to be willing and able to report – rather they offer us opinion pieces, reflecting their own bias about what is driving the family court system. Despite the fanfare of the recent transparency pilot, I will eat my wig and gown without condiments if I ever see a journalist at any of my cases. The work I do is simply not ‘sexy’ enough to warrant their attention – but it is of vital importance of course to the individuals involved.

Conclusions

I gave up my work as activist in the FJS as it was based on the dangerous naïve premise that all we must do is talk honestly and openly and we can sort everything out. This ignores the reality that many are simply unable to see beyond their own fixed narratives; research has apparently shown that the more ‘facts’ you give a conspiracy theorist, the harder in fact they dig down.

The barriers to a more humane and effective system remain high. There is often very little on offer by way of intervention or support or it requires significant financial resources to obtain. The money wasted on an adversarial court system could be redirected to provide more focused and effective interventions – but it’s going to require a political will and co-ordination that I frankly do not think I will see in my lifetime. The Children Act 1989 was the last great piece of legislation to reform a fragmented system that crossed political lines and united everyone.

One thing that really stuck in my mind following the FJC conference last year was the mother who said that the FJS had saved her and her children. Child protection is all our business. I think there is a continuing role and a societal need for a family justice system – but it must be committed to identifying which families need state intervention, and which families are harmed, and it must resist the interference and unevidenced demands of single-issue lobbyists.

Our current system does not triage effectively – or at all – and this causes great misery and wastes huge amounts of money. I hope we are going to see some changes in my lifetime, and I hope I have been able to plant some further seeds of thought and discussion here today.

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Systemic Failings in the Family Justice System