Written evidence submitted by The Family Law Bar Association (IFC0075)

1.              We welcome this focus on family justice. The Family Justice System (‘FJS’) makes profound, far reaching decisions that impact significantly on the present and future lives of children and adults. It tackles some of the most complex issues in society such as child abuse, domestic abuse, substance misuse, mental health breakdown, disability, parental alienation and general family breakdown. It involves making decisions concerning people who are highly vulnerable and at some of the most difficult points of their lives. Many of those involved have experienced a high level of trauma. The decisions made include immediate separation of children from their families, forced adoption away from birth families, international relocation, decisions to return children to foreign jurisdictions, alongside the sometimes no less complex decisions as to which parent a child should live with, which school they should attend or whether they should undergo medical treatment. The family court has wide ranging powers, not all of which have a statutory basis. For example, the inherent jurisdiction allows courts to authorise the deprivation of liberty of children.

2.              It is important to recognise that the FJS makes decisions about what has happened in the past (e.g. did an adult inflict an injury on a child or did the father exert coercive and controlling behaviour on the mother) and what should happen in the future (e.g. with which parent should the child live or should the child be removed into foster care or adopted). Cases are often complex, involve multiple parties (local authorities, parents, other family members, children) and require highly skilled decision making. The subjects are intense, highly charged, and emotive and the evidence both written and oral is necessarily complex. At the end of the process the judge is expected to produce a detailed judgment identifying what decision they have reached and why, based on the evidence they have read and heard. There is a well-established appeals system that will scrutinise the fairness of the process alongside the legal issues that have arisen and the correctness of the decisions reached.

3.              In 2024 there were 15,980 new public law cases and 51,473 new private law cases (see NAO report below). The figures will vary from year to year and the drivers of demand are complex and not well understood. They most likely include factors such as economic deprivation, public opinion (LA applications increased significantly after the Baby P scandal) and the impact of funding cuts in other areas such as local authority spending and criminal justice.

4.              The recent National Audit Office (‘NAO’) Report highlights some of the difficulties.    The report rightly identifies, in our view, an absence of clear political and departmental accountability for family justice together with an extremely high turnover of ministerial responsibility, all leading to a lack of funding and accountability but also a lack of understanding and expertise. Our experience of meeting officials from the various Government departments is that many lack an understanding of how the FJS operates, about the problems within it, or even about the families that it serves. Family justice often sits within a broad portfolio of responsibilities and by the time any knowledge is built up the responsibility for this area of work has been passed on to someone new. Sometimes we note a reluctance to acknowledge that those working within the system are key stakeholders and have a valuable contribution to make in understanding the difficulties within the FJS.

5.              As an example of the above, the ‘Trailblazer’ pilot (mentioned by the NAO) and the Suspected Inflicted Head Injury (‘SIHIS’) pilot were designed and commenced by the DfE without any input from the legal professions. These pilots were designed ostensibly to reduce court delays. In subsequent meetings with the DfE and the National Children’s Bureau (who have been commissioned to evaluate the pilots) we have asked for clarification as to how it was anticipated these pilots might reduce court delays. Those we spoke to were unable to answer those questions because, as they readily admitted, they had no detailed understanding of how the FJS operates. Delay benefits no-one, but there seems almost to be a positive decision to exclude from the discussion some of those who know best how to make the system work more efficiently and effectively.

6.              The NAO report notes, correctly in our view, that family justice operates at something of an intersection between the Department for Education, His Majesty’s Courts and Tribunals Service, The Ministry of Justice, Cafcass and individual local authorities. Each family case, in effect, requires a funding commitment from every agency involved.  Therefore, any agency which underperforms (or is insufficiently resourced) will impact on the overall efficiency of the service, for example:

(a)              Court sitting days are controlled by HMCTS. The fewer sitting days that are allocated so the less capacity there is in the system. Sitting days involve salaried judges but also fee paid judges. The number of fee paid days allocated by HMCTS over the last 2 years has been reduced. Moreover, there are too few court buildings and those that exist are in a poor state of repair. Where the NAO report points to case hearings being cancelled (a staggering 32% of cases), this is said to be due to ‘inefficient administrative actions’. What this means (for the most part) is there was no judge available to hear the case or no court room. This causes delays.

(b)              The Legal Aid Agency controls the funding of legal professionals and experts. Rates set decades ago have never been increased (even to take account of inflation). Underfunding leads to shortages. It is impossible to find legal professionals willing to work as Qualified Legal Representatives in cases of alleged domestic abuse. It is becoming impossible for solicitors to find barristers willing to undertake hearings in private law children cases at the rates presently paid. Experts willing to accept work at legal aid rates will have long lead in times. This causes delays.

(c)              Local authorities have an insufficient number of social workers available to work with children and families and produce court reports. Local authorities are often unable to file their evidence on time. Certain Cafcass areas are in ‘prioritisation’ meaning that it is 23 weeks between court direction and report. This causes delays.

(d)              There are multiple other agencies involved within family justice. Police disclosure is critical in cases involving concurrent criminal investigations. Health (GPs / Hospital) records will be essential in cases involving alleged non accidental injury or other health related issues. Cases may involve immigration issues requiring co-operation from the Home Office. Capacity issues may require the involvement of the Official Solicitor. Delays due to understaffing or over demand in other agencies causes delays.

7.              In answer, therefore, to the specific points raised in the call for written evidence:

Examining if the family court system across England and Wales has capacity to meet current and future demand, including accounting for the needs of different groups within the system

8.              Planning for future demand is difficult when the drivers of that demand are poorly understood, complex and unpredictable.

9.              The death of a child under local authority investigation can lead to defensive practices which include the drive to issue more court applications to remove children from parents. Local authorities may consider that it is better for responsibility for decision making (and the risk of public criticism) to lie with the court than with social workers.

10.              Removing legal aid for almost all private law children applications (Legal Aid, Sentencing, and Punishment of Offenders Act 2012), increased demand on the court system as litigants in person did not have the filter of legal advice or any understanding how to navigate the FJS. They place high demands upon court staff including judges. They do not understand or simply ignore court directions. They complain about and appeal (or seek unnecessarily to appeal) decisions they do not agree with.

11.              Overwhelmed agencies divert families to the family justice system as a way of managing their own workloads. Local authorities / police will refuse to assist families resolve disputes. E.g. women seeking police protection from abusive partners will be told to go to the family court.

12.              Family Justice often involves the most vulnerable in society but assisting such people requires time, patience and resources. What is the point in identifying those with particular needs or vulnerabilities where:

a)              There is no judge available to hear their case or insufficient time can be allocated to it, or:

b)              A vulnerable woman needs a safe area within the court building but such an area is not available within a busy / cramped court centre which is understaffed, or

c)              The court has directed that an alleged victim of domestic abuse should be cross examined by a QLR rather than the alleged abuser, but no QLR is willing to accept the case because the funding is so poor?

13.              It is no doubt much easier to make a generalised promise (e.g. ending the abuse associated with cross examination of victims by their alleged perpetrators or halving violence against women and girls) without identifying the specific resources that will be allocated to ensure that this actually happens.

Understanding how Departments and other organisations are working towards a whole system approach to improve family courts performance

Sadly, there is little sign of a whole system approach. Family justice is very much the ‘poor relation’ within each department where responsibility sits. Within the MOJ prisons and criminal justice have a much higher profile and take the lions’ share of the available funding. Every increase in prison funding has to be met from elsewhere in the MOJ budget. It is difficult to see how responsibility for family justice sits easily within the DfE. It is some way removed from schools and education and no doubt seen as less of a priority.

Asking how the system can deliver an effective and efficient service that also offers value for taxpayers’ money

The system needs to be given priority and an appropriate share of resources. It performs a central function within society but it has been allowed to wither through decades of under investment. By investment we do not just mean financial investment, but also political and departmental. More than anything it needs decision making to be informed by those who understand and have experience of the system rather than those who are just passing by on a journey elsewhere.

June 2025