evidence subject to the same caveat – i.e. that it was produced to inform the FJC but the views expressed are those of the author and not of the FJC.

Family Justice Council briefing paper

Statistics on Private Law Applications

1. The role of the Family Justice Council is to promote an interdisciplinary approach to family justice, to monitor how effectively the system delivers the service the Government and the public need, and to advise on reforms needed for continuous improvement. This role must include promoting accurate and evidence-based knowledge about the family justice system.

2. In recent discussions of private law applications, the claim has been made that 40% of separating couples are now bringing their disputes over post-separation arrangements for their children to the family court. This figure has then been used to suggest that a large proportion of cases come to court unnecessarily and can and should be diverted to avenues for non-court dispute resolution.

3. If this figure is inaccurate, however, it provides an insecure basis for inferences about the reasons for private law demand and policy proposals for managing demand.

4. The purpose of this briefing paper is to explain the source of the claim and how it has come to be used, to assess the available evidence and to consider what can reliably be said about on the proportion of separating couples who bring parenting disputes to the family court and why they do so.

Reliable data on private law demand

5. The best available evidence is that around 10% of separated families make use of the courts in arriving at child arrangements. This figure is based on a series of large, nationally-representative surveys which have asked separated parents how they have made arrangements for their children. These data sources have included the Office for National Statistics (ONS) Omnibus Survey (Blackwell and Dawe 2003; Lader 2008; Peacey and Hunt 2008), the Crime Survey for England and Wales (Summerfield and Freeman 2014), and the Millennium Cohort Study (Goisis, Ozcan and Segal 2016). These are respected and widely used data-sets, the data analysis in each of the studies is robust, and the figure of 10% has remained consistent over time (2003-2016).

6. Interestingly, Summerfield and Freeman also found that respondents were likely to over-estimate the proportion of couples who go to court to help them make contact arrangements following separation, with only 7% correctly saying that the figure was 10% or less (2014: 7).

7. Two further recent studies which employed a different methodology to estimate the level of usage of the family court similarly suggest that only a low proportion of the population overall have recourse to the court. In the first of these studies, Cusworth et al. linked Cafcass Cymru administrative data with administrative data from other Welsh agencies within the SAIL Databank to explore the characteristics of those using the family court in Wales. In the absence of data which enabled the researchers to identify separated families, they compared the number of households with dependent children (‘family households’) with the number of private law applications received by Cafcass Cymru in each year. Between 2007 and 2018 they found an increase in the rate of private law applications from 67 per 10,000 family households to 93 per 10,000 family households. Nevertheless, in 2018, fewer than 1% of households brought a dispute to the family court (Cusworth et al. 2020: 15-16).

8. In the second study, Cusworth et al. adopted the same methodology in relation to England, using Cafcass England data on private law applications received. They found that the rate of private law applications was consistently lower in England than it was in Wales. While the rate has increased slightly, this increase has been from 56 applications per 10,000 family households in 2007/08 to 68 applications per 10,000 family household in 2019/20. The rate of applications in 2019/20 was lower than the pre-LASPO rate of 72 applications per 10,000 family households in 2012/13 and 2013/14. In England, therefore, over the past 12 years, far fewer than 1% of households have brought a dispute to the family court (Cusworth et al. 2021: 19-20). While this methodology is much less precise than the survey data noted above, the figures in both studies match Summerfield and Freeman’s finding that fewer than 1% of adults responding to the Crime Survey for England and Wales said they had been involved in a family court case in the previous two years (2014: 4).

The source of misconception

9. In a 2019 Family Justice Observatory publication, What could a public health approach to family justice look like?, it was argued that, in the context of recent increases in private law case numbers without any increase in the resources available to respond to them, there was a need for a new, ‘whole population’ approach to ensuring children’s well-being when families separate.

10. In support of this argument, the publication included a rough calculation in the following terms. It should be noted that this was not the focus of the argument but constituted only a very small part of it:

“A recent report reviewing available data on separating families estimated that the ‘whole population’ equates to around 2% of households with dependent children that separate each year (Bryson et al, 2017). On the basis that there are around 6.3m households with dependent children in England and Wales, that is something like 125k separations per year. Given that Cafcass dealt with 42k new private law applications last year in England alone, this suggests that a third of separating families are using the courts, far more than the ‘one in ten’ usually quoted.” (Williams 2019: 7)

11. This ‘suggestion’ is based on a series of very broad estimates and assumptions. The problems with the approach include:

With regard to the separating population, Bryson et al. say that “Around two per cent of families with dependent children separate each year (authors’ analysis)” (Bryson et al. 2017: 11). Since the source of this data is not specified further it is impossible to verify or replicate it, however its purpose in Bryson et al.’s report is to show the low prevalence of separation, and hence the disproportionate cost of attempting to conduct survey research specifically aimed at this group. For this purpose, the precise proportion is unimportant, hence the qualification “around two per cent”. Later in the report the same data is represented as “up to two per cent of families with dependent children [separate] each year” (Bryson et al. 2017: 19) and later still as “one to two per cent of families with dependent children separating each year” (Bryson et al. 2017: 78). There is clearly a statistical difference between these formulations. This serves to reinforce the approximate nature of the figure concerned and its unsuitability for use in calculations on which policy might be based.

The figure for the number of households with dependent children in England and Wales is too low. Assuming the use of 2017 data, the correct figure is 7.15 million rather than 6.3 million (ONS, ‘Families by family type and presence of children, 1996-2017’, Tables 1 and 2).

The figure of 125,000 separations is arrived at by taking 2% of 6.3 million (126,000). However combining Bryson et al.’s statistics with the ONS data, this figure could in fact range from 71,500 (1% of 7.15 million) to 143,000 (2% of 7.15 million)

Cafcass dealt with 42,000 new private law cases in England alone in 2017-18. This is 34% of 125,000. However the estimated 125,000 separations relates to both England and Wales, so the calculation involves dividing an England-only numerator by an England-and-Wales denominator. If we take 2% of families with dependent children in England alone (6.8 million: ONS above) this would give us a figure of 136,000 separations, of which 42,000 is 31%.

However, the notion that every new case dealt with by Cafcass during the year represents a newly-separated family is unsustainable. Elsewhere in the same FJO publication it is noted that “We…know from analysis of [Cafcass] private law case data that around a third of cases in private law return to court” (Williams 2019: 8). Similarly, Cusworth et al. (2020: 31) found that 31-34% of private law applications in Wales between 2014 and 2018 were returns to court. In England the figures were slightly lower, at 24-27% of parties returning to court within three years of their initial proceedings in 2013-2020 (Cusworth et al. 2021: 36). We also know that around 10% of new private law cases are applications by non-parents, e.g. grandparents and other relatives (see Cusworth et al. 2020: 17-18; Cusworth et al. 2021: 22). So at best, maybe 25,000 of the new private law cases might be newly-separated parents, which represents only 18% of the roughly estimated total number of separated parents.

12. This is not to suggest that the ‘true’ figure is closer to 20% than 40%. Rather, it is intended to illustrate that the methodology for this calculation is inherently flawed, resting on a succession of questionable components and adding up to a proposition which cannot sensibly be relied upon.

13. Furthermore, no reference is made to the source of the ‘one in ten’ figure – it is presented as if it is apocryphal rather than a repeated finding from a series of authoritative studies.

14. As noted above, the calculation is prefaced by a reference to increasing private law demand. It is observed that private law applications received by Cafcass increased by 3.8% from 2016-17, and by 23% since the Child Arrangements Programme was launched in April 2014 (Williams 2019: 5). The desire to account for increasing case numbers leads to a search for causes, but it also creates a strong risk of confirmation bias – that is, an explanation that fits with our sense of increasing pressure of numbers is more likely to be adopted with little questioning or consideration of alternative explanations.

15. But two plausible alternative explanations for increasing case numbers are available, that do not require rejection of the well-supported existing evidence base on the level of court usage by separating parents. One is the normal and predictable effect of population growth. If the size of the adult population – and hence the size of the population of separating parents – increases, then even if the proportion of that population going to court remains constant at around 10%, the actual numbers will increase. The other is that immediately prior to the introduction of the Child Arrangements Programme there had been a large and unprecedented decrease in the number of private law applications due to the short-term effects of LASPO. The increase from 2014 onwards could be seen as a correction, with the number of applications regaining equilibrium, which we would expect to exceed pre-LASPO numbers due to population growth.

16. The figures calculated by Cusworth et al. (2020; 2021) suggest that the growth in demand has somewhat outstripped population growth in Wales, but not in England. Even in Wales, the increase has not been at a rate that could be considered alarming. There is simply no credible evidence for a 200-300% increase over the past decade in separating parents turning to the courts to resolve disputes about their children.

The inflation to ‘40 per cent’

17. A subsequent speech to the Resolution Annual Conference in 2019 rounded up 125,000 to 130,000 couples with dependent children separating each year, of whom 50,000 ended up in private law court proceedings (McFarlane 2019: 13). The figure of 50,000 private law cases per year rather than the 42,000 cited in the NFJO publication resulted from reliance on a different data source.

18. According to the Cafcass annual report, 42,000 new private law cases were referred to Cafcass in 2017-18. According to Family Court Statistics Quarterly, approximately 50,000 private law children cases started in 2017. Cafcass numbers are always lower than FCSQ numbers, since the cases referred to Cafcass are only those in which safeguarding enquiries need to be made. For this reason, however, the Cafcass figures are a more reliable indicator of the number of new child arrangement cases than the FCSQ figures, which include a range of other types of private law applications. The use of the higher figure, however, resulted in the conclusion that 38% - compared to the earlier 34% - of separating couples take their disputes over child arrangements to court.

19. But, as discussed above, whichever numerator is used, the denominator is invalid. It can in no way be asserted that those commencing court proceedings in any year are a simple sub-set of those couples who separated during that year.

20. This speech was picked up by several media outlets, which in turn rounded up 38% to 40%. The Daily Mail, for example, reported that ‘Custody fights blight four in 10 break-ups’ (MailOnline, 2 May 2019).

21. Since 2019 the statistics on private law applications have been discussed in the Private Law Working Group and most recently have been raised in connection with the publication of the Family Solutions Group’s report, What about me? Reframing support for families following parental separation (2020). The 40% figure has continued to appear in these discussions (e.g. https://www.judiciary.uk/publications/what-about-me-reframing-support-for-families-following-parental-separation/; McFarlane, 2020: 7-8).

Invalid inferences

22. When it is cited, the 40% figure is often accompanied by the suggestion that parents bring cases to court unnecessarily, when they should be capable of resolving matters themselves (e.g. Williams 2019: 11-12; McFarlane 2019: 13).

23. The danger here is that flawed data leads to a flawed diagnosis of ‘the problem’, and correspondingly, flawed proposals for a ‘solution’. In fact, the available evidence does not support the assumption or inference that parents bring cases to court unnecessarily.

24. In their 2008 report on the outcomes of child contact applications, Hunt and Macleod observed that in another recent study (Peacey and Hunt 2008), around half of separated parents had reported experiencing problems which had affected or disrupted contact. However, only a minority of these used the legal system to resolve those problems. They continued:

“It would seem to be a reasonable hypothesis then, that the families who do turn to the courts have unusual levels of difficulty and conflict. Certainly research shows that litigating families tend to have multiple problems (Buchanan et al, 2001). Trinder et al (2006) report that when parents in court proceedings were asked to identify which out of 14 potential problems they had experienced in the three months prior to the application being made very few selected only one or two; the average was seven.” (Hunt and Macleod 2008: 3).

25. More recent research, both pre- and post-LASPO, fully bears out this hypothesis. Research by Trinder et al. (2006, 2013), Pereira et al. (2015) and Barlow et al. (2017) has consistently shown that separating and divorcing couples generally prefer to avoid going to court if they possibly can, and turn to the court as a last resort, when all other options realistically available to them for resolution out of court have failed. Barlow et al. found that such couples are generally aware of mediation, but find it an unattractive option in the circumstances in which they find themselves, which include vulnerability, the unenforceability of mediation agreements, and, now, lack of legal advice and support. These studies have found that people go to court because they have genuine worries about their children’s safety, because informal arrangements have broken down, because of a chronic lack of trust of the other party, because the other party refuses to negotiate, or because the parties disagree fundamentally on what is in their children’s best interests. These are all good, child-centred reasons for seeking the court’s assistance, rather than indicating laziness, litigiousness or abdication of responsibility.

26. The evidence that the great majority of people who take child arrangement disputes to court are seeking to raise serious issues is further reinforced by Cafcass’ unpublished evaluation of its Support with Making Child Arrangements Programme (generally known as the ‘Manchester Pilot’). The pilot programme, conducted in the first half of 2018, aimed to identify, inter alia, how many parents in child arrangement cases could be suitable to resolve their dispute away from court. Out of 1190 court applications included in the pilot, only 171 were deemed suitable for diversion (14%). This figure rose to 20% towards the end of the pilot, when assessments were made after rather than before safeguarding interviews were conducted, but this ‘outside estimate’ must be treated with some caution since the changed assessment process was only in place for a short period of time (one month, compared to five months for the earlier process), and gatekeepers were not involved in the assessment in the same way as previously (Cafcass 2019).

27. The evaluation findings made available to interested researchers make specific reference to:

“the serious safeguarding issues which exist in many of the applications made during the pilot. This evidence is important in highlighting that a significant number of cases in the private law system need to be in court and dealt with in this manner due to the safeguarding risks involved, to both the child and/or parties. This is consistent with wider evidence which shows that litigating families have multiple complex problems and high levels of conflict. For example, an estimated 50-60% of private law cases include allegations of domestic abuse and between two-thirds and 85% have serious welfare or safeguarding concerns.” (Cafcass 2019: 7-8)

28. Finally, it is worth noting Cusworth et al.’s (2020; 2021) finding of a strong link between economic deprivation and private law applications, which suggests that families coming to court may have few other personal or financial resources or services available to them.

29. Regardless of what proportion of separating couples go to court, therefore – even if it is as improbably high as 40% – there is no evidential basis for concluding that many of them ought to be able to resolve their own dispute and can safely be diverted elsewhere. The evidence is all to the contrary – that the great majority of cases that go to court, around 85%, cannot safely be diverted and need the court’s intervention.

Conclusion

30. Robust research evidence establishes that use of the family courts by separating couples is low, and in most cases reluctant and necessary.

31. In line with its remit to promote accurate knowledge about the family justice system and evidence-based policy making, the Family Justice Council refers this document to the Ministry of Justice and invites them to consider its content and take this issue forward.

Professor Rosemary Hunter FAcSS

March 2021

References

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