Since the legal aid cuts of 2013, private children cases in England and Wales have become the site of numerous, interrelated, access to justice problems. The proliferation of litigants in person has not only introduced new challenges, such as the proper advice, support and case management of so many unrepresented litigants, but also exacerbated pre-existing issues, such as the treatment of domestic abuse by the court and the child’s voice being heard within proceedings.
When barriers prevent effective access to justice in these cases, there can be detrimental consequences: not only to the litigants, usually parents, but also to the child in the middle of proceedings. Furthermore, and most importantly of all, it can undermine the court’s ability to make a decision in the best interests of the child.
This Working Party convenes at a time of appetite for significant change. Responses to the Private Law Working Group, set up by the President of the Family Division in 2019, called for radical structural reform. The Ministry of Justice’s June 2020 report concluded that several systemic barriers prevent the Family Court from dealing effectively with domestic abuse in private law cases. And in December 2020, the Family Justice Board confirmed “lon[g]-term reforms are needed to ensure the most vulnerable children and families are prioritised and the future system is designed around their needs and runs smoothly.” The task of innovating, piloting and evaluating that long-term reform coincides with the digitisation of private children processes by HMCTS in 2021, whilst the Family Court tries to recover from the Covid-19 pandemic and learn lessons from its impact on access to justice.
The aim of our Working Party is to consider how access to justice can be improved for separating families in private family proceedings. This is with particular regard to the effective participation of parents and children; the effect that underlying or co-existing problems may have on what each family member needs from the court; and the principle that the court experience should not cause or exacerbate harm.
In pursuing this aim, and in light of the opportunity for fundamental reform, the Working Party will ask what a future private family court should look like and how the court’s processes should adapt to the families within it.
Chair: Professor Gillian Douglas (Emeritus Professor, King’s College London)
Nicholas Allen KC (Recorder, arbitrator, barrister, 29 Bedford Row)
Rebecca Anderson (Model Office Programme Manager, Cafcass)
DJ Stephen Arnold (Deputy District Judge, retired District Judge)
Victoria Butler-Cole KC (Recorder, barrister, 39 Essex Chambers, JUSTICE Council)
Professor Shazia Choudhry (Queen Mary University of London, non-practising solicitor)
Jude Eyre (Associate Director for Strategy and Delivery, Nuffield Family Justice Observatory) Antonia Felix (solicitor, Mishcon de Reya LLP)
Professor Jane Fortin (Emeritus Professor, University of Sussex)
Jessica Lee (barrister, 1GC Family Law)
Sara McIlroy (PhD Candidate, Exeter University, barrister, Harcourt Chambers)
HHJ Lesley Newton (Circuit Judge, retired Designated Family Judge for Greater Manchester) Christine Nwaokolo (solicitor, Owen White & Catlin LLP)
Lucy Reed (Deputy District Judge, barrister, St John’s Chambers, The Transparency Project)
James Sandiford (solicitor, Russell-Cooke LLP) Natalia Schiffrin (magistrate, attorney (New York))
Natasha Shotunde (barrister, Garden Court Chambers)
Somia Siddiq (solicitor, ITN Solicitors, executive committee, Association of Lawyers for Children)
Juliet Thomas (solicitor, Shanahans Solicitors (Wales))
HH Sally Williams (Deputy Circuit Judge, retired Circuit Judge)
Naomi Wiseman (barrister, Garden Court Chambers)
Rapporteur: Ellen Lefley (JUSTICE)
Sub group members are:
Samuel Coe (barrister, KCH Chambers)
Victoria Richardson (solicitor, Ben Hoare Bell LLP)
Olivia Stiles (solicitor, Kingsley Napley LLP)
The report proposes 43 recommendations for a safe and problem-solving approach to families’ child arrangements problems. Recommendations include:
Beyond court: the wider family justice system
Information and early legal advice: a single authoritative information website for separating families and piloting of publicly funded early legal advice for child arrangements problems.
Coordination of legal and non-legal services: the creation of hubs, alliances and networks to coordinate services for separating families in the community, including the use of DfE-funded family hubs. We recommend legal and non-legal services work in partnership to support families with their child arrangements problems.
Consistent risk screening: the systematic use of a common, structured, overall risk screening tool by professionals throughout the family justice system including mediators, legal professionals, and Cafcass in court, to ensure a consistent and proportionate response to risk, wherever a family go for help.
A child participation presumption: throughout the justice system, we recommend a new presumption that all children will be offered the opportunity to participate in processes which assist in the resolution of a dispute which concerns them, both in and out of court, in an age-appropriate way.
Non-court dispute resolution: in addition to mediation, other non-court dispute resolution processes should be financially supported, including “packages” of support which combine legal help with non-legal help (like counselling). Non-court processes need to be better supported to be child inclusive, through parental education, professional practice, and funding incentives.
Going to court
The “case progression officer”: we recommend the introduction of this role as standard in every case. They are a neutral, legally-trained court employee, who will: provide the family with information at the outset and throughout; manage preparation for hearings if one or both sides are unrepresented; answer queries about the outcome of any hearing; and help a litigant in person with next steps required of them.
An initial investigation should be conducted by a “Court Team”: a multidisciplinary Court Team – consisting of the case progression officer and a Cafcass officer, to which specialists, e.g. in domestic abuse, could be added – should screen the whole family for risk, provide the family with information, talk to the adults and relevant third parties such as the child’s school, and importantly would also consult the child. The investigation could make referrals for support while the family try another process, such as mediation, or it could better prepare the case for the judge/magistrates.
Funding for expert evidence and representation: when the court deems expert evidence or testing is necessary, but the parties cannot afford it, there must be funding available. When the court deems a fact-finding into alleged harm necessary, but the parties cannot afford representation, there must be legally-aided representation for both parties. When the court decides the child should be a party, there must be sufficient resources to make a Guardian available.
Child participation in court: the court should have an explicit duty to offer children the opportunity to participate. This participation is a process, not a one-off event, which means letting the child know what has been written about them more often; letting them meet the decision-maker more often (and training judges and magistrates to do this); and giving the child feedback about the outcome and how their voice was taken into account (which is currently entirely absent from the process).
Cases should be reviewed as standard: a reviewing officer, normally Cafcass, should follow up with the family (including the child) after a certain period of time to ask if the final order is working in the best interests of the child. If it is, there is nothing further and no additional hearing. If it isn’t, the same judge can hold a review hearing to consider any changes necessary. This primarily ensures children do not become stuck in arrangements in which they are seriously unhappy or unsafe, with no oversight of the court.
The Working Party was generously supported by Mishcon de Reya LLP who provided financial and pro bono support. It was also supported by The Clifford Chance Foundation, The Eleanor Rathbone Charitable Trust, and The Treebeard Trust.
Access the full report (PDF).
Read the press release (PDF).