Transparency Project members have attended the annual debates arranged by the Family Justice Council* for a few years now, to report back for those unable to attend. The FJC have shown willing to tackle some of the most challenging topics for family law in the relatively ‘safe’ format of a panel debate, with questions from a (pre-registered) audience of professionals and interested members of the public. Some topics are inevitably more interesting to the public than others. This year, the audience seemed particularly short on families and members of the wider public. Wider dissemination of notice of the event in the first place might help broaden the range of those attending.

Write ups of those we’ve attended in recent years are here:

2014 – Transparency in family proceedings – Is the Family Court open for business?

2015 – Adoption without parental consent is wrong in principle?

2016 – Settlement Conferences: Are they Article 6 compliant?

2017- Parental autonomy and a child’s best interests: Should the courts have the final say?

2018 – Nothing to hide – what’s wrong with covert recordings?

The 2019 debate this week asked: 

Do Separating Parents Need the Family Court?

The context

The context was the direction of travel for private law family court reform, set out most recently in the Child Arrangements Programme (CAP) review report of the Private Law Working Group, chaired by Mr Justice Cobb, containing draft reform proposals (for consultation). Two recent speeches by the President also provide context. Teresa Williams’ blog post at the Nuffield Observatory site, What could a public health approach to family justice look like?  may also shed light on wider systems thinking across family justice agencies currently.(Williams, formerly of the Nuffield Foundation, delivering the Family Justice Observatory, is now the strategic lead for Cafcass).

The Working Group proposals place emphasis on diverting some (of rising numbers of) private law cases away from the family courts where safe and appropriate to do so. Through reinforcing pre-court mediation requirements, and diversion of some cases after careful assessment to information programmes or other appropriate support services for separating families. With a new national dispute resolution service and new alliances of co ordinated, services more generally for separating parents, overseen by local family justice boards.

Some have questioned the underpinning assumptions of an exponential rise in cases, or that significant numbers of them can / should be diverted. See for example Rosemary Hunter (academic member of the Private Law Working Group) here. Kelly Reeve at the Transparency Project blog site asked whether the statistics underpinning statements that the number of separating couples resorting to the family court was more like 38% than the old 10% assumed were as transparently referenced as they needed to be.

The Line Up

Observations on the night

Here are just a few points of interest we took from the speakers on the night (heavily paraphrased) pending the full, verbatim transcript /recording that will follow at the FJC site soon.

The debate format requires panel speakers to organise around ‘for’ or ‘against’ the motion that separating families need the family court. In reality, as the President noted, there were significant areas of commonality and nuance as well as some different views amongst the four speakers.

Mavis Maclean CBE, Oxford University (FOR)

Maclean offered a research perspective, including internationally, on what hasn’t worked and why. Mediation, for example, was not the ‘silver bullet’ hoped for [something that would work and save money too]. It couldn’t, in isolation in the current structure, offer what people really needed – organic movement from information about options, on to advice on those options for their own case, and finally on to support to actually take steps including mediation. Ditto the current obsession with all things ‘digital’ albeit that may have much to offer.

Maclean argued for careful evidence based analysis and learning from other jurisdictions eg:

Australia – Where they too have struggled with rising demand despite best efforts to divert but thought again at that point, switching from a diverting response, to careful study instead of who their persistent users really were. They found that 59% of family court parties had some sort of mental health problems, with vulnerabilities around substance misuse, domestic abuse etc.

Germany – Where they are using a ‘Hub’ model with judges resisting positioning as arbitrator in favour of the role of a temporary supervisor with residual powers offering no more than a binding setting for ADR and some degree of support /’accompaniment’ of users through it.

Denmark – Where they are using a ‘House of Family Law’ model within an administrative rather than judicial process, though they have recently implemented a family court alongside. Users approach the ‘House’ not the Court, via digital channels, and are assigned to tracks from Green to Red (clear risk of violence etc). The ‘House’ has authority for some decisions but not all. Appeal from those decisions it does take lie to the Court.

High conflict parents are distressed parents, said Maclean. We shouldn’t be focusing on diverting them which is rejecting and counter-productive. Nor labelling them as litigious rather than vulnerable, rather than focusing on understanding and responding to their needs. Instead, we should be trying to build on a strong central position for the existing family court and looking outward now for aid from other agencies and budgets. The CAP Review proposals are to be commended for starting the move in this direction.

Jane Robey, National Family Mediation (AGAINST):

Robey argued that the Family Court broadly isn’t the right place for separating parents, though for some it is a necessary place.

She suggested we need a culture change away from assuming the law is the starting place for divorce and separation rather than the backstop. Most of the problems families are facing are human problems not legal problems, although sometimes with legal aspects.

The problem is not so much lack of alternative services to courts (such as mediation) but failure to use them effectively in a joined-up manner at a system-wide level. Under-resourced, over-stretched services stuck in established practices lacking capacity to see different ways of working and perceiving courts as the safer option is part of the problem.

Olive Craig, Rights of Women (FOR):

Craig questioned the assumption of a crisis by way of a rising numbers of private law applications as opposed to a crisis of under funding of the family justice system. Figures looked at in isolation since the Child Arrangement Programme (CAP) was introduced to reduce case numbers might indicate a significant rise but when numbers are examined over a longer period, they show a particularly low level in 2014 followed by a peak and then a fall with LASPO. Comparing with 2014 misleads since this was a moment when figures hit a low. Going back further shows fluctuations from 2011 around the current level in terms of actual numbers. The crisis is a crisis of funding for the family justice system with 40% cuts to the family justice budget in the period from 2014.

Craig questioned the justice and efficacy of a ‘divert away’ approach, labelling vulnerable families that require the family court as ‘irresponsible’, problem litigants. We know that around 60% of applications in the family court involve domestic abuse allegations. We know too that roughly another 20% have other safeguarding concerns or allegations raised in them. Like Maclean, Craig argued that effective reform of the family court requires us to engage with who its users really are, not who we would like them to be.

DDJ Heather MacGregor, PRFD (AGAINST):

Judge MacGregor agreed no system will work unless adequately funded. The family court can and does exacerbate some problems. Research tells us that families find the experience of the family court problematic but also that they make little attempt to resolve things outside the family court. She likened this to going to A&E for your minor toe injury, knowing you will wait for hours just to see a pressurised junior doctor. In a system where all the funding is stacked away from prevention, without adequate joined-up thinking between inpatient and outpatient services or generally in terms of outpatient services, similar unrealistic expectations may be fuelling the rise in applications.

In her experience as a deputy district judge, the majority of applications were child arrangements order applications, often involving parental vulnerabilities such as mental health, but rarely involving true legal issues.

Like others, MacGregor saw the legislative framework of the Children Act 1989 as essentially sound. She questioned the absence of a threshold for court intervention in private law cases (alongside the no order principle) as is to be found in public law cases. The impact of dwindling support services made the Act less meaningful. The very act of judicial decision making in private law cases is of itself an antithesis to the concept of parent’s exercising their parental responsibility that underpins the Act.

Making orders does nothing of itself to tackle the underlying problems that lead families to the court door. MacGregor quoted the President in quoting Lucy Reed, Chair of the Transparency Project on the messy, human complexity of family breakdown and the judicial task in response. She cited several examples of one-stop shop models of intervention that enable access to support, including Australian Family Relationship Centres that aim to help families make the more enduring changes they require.

MacGregor saw Cafcass as uniquely placed to co-ordinate and to some extent deliver the sort of joined-up services alongside the family court envisaged for this jurisdiction. Private law applications might not even be issued until they’d passed through Cafcass Triage and the parent’s attended Cafcass recommended services. She added the observation that even domestic abuse is on a spectrum of harm with some issues amenable to services to both parents without judicial fact finding.

Statistics

There was a brief discussion in the Q&A about the figures for the percentage of separating families now applying to the family courts. DDJ MacGregor flagged the importance of accurate statistics if they are to be used to drive reform. We flagged Kelly Reeve’s post for the Transparency Project as a useful starting point with links. The President rightly pointed out that the real question is whether the figures provide sufficient basis or otherwise to support a new public health approach to private law applications in the family courts.

The majority of the audience voted in favour of a revised realistic motion that separated families need both the family courts AND safe diversion to resourced, joined-up alternatives for more families.

The full recording / transcript will be published by the FJC on its site here. We’ll endeavour to update this blog post with the link once we see it. 

*The Family Justice Council explain their function as follows:

The primary role of the Family Justice Council is to promote an interdisciplinary
approach to family justice and to monitor the system.

The Council, a non-statutory, advisory non-departmental public body, monitors how
effectively the system, both as a whole, and through its component parts, delivers the
service that the public need. It advises on reforms necessary for continuous improvement.
The Council was established following a consultation published in March 2002 by the then
Lord Chancellor’s Department: “Promoting Inter-Agency Working in the Family Justice
System”. This proposed the establishment of a committee to promote interdisciplinary co-
operation and best practice, and to advise Government on issues affecting the family justice
system. The response to the consultation was overwhelmingly in support of the proposal and
the establishment of the Council was approved by the Lord Chancellor in May 2003. It
became operational in July 2004.
Following the final report of the Family Justice Review panel in November 2011, the Council
responded to the recommendations by changing its structure and way of working, reflecting
its enhanced role of providing expert interdisciplinary advice direct to the Family Justice
Board. The Council produces guidance and best practice documents and responds to
government consultation papers and calls for evidence from Parliamentary committees.
For information about the work of the Council please visit the website:
http://www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/fjc

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