The average private law children case is taking 44.9 weeks to resolve via the court system, with 80,000 children caught up in private law cases in the family court. This is despite the introduction of pilot schemes in certain areas to try to streamline the process by having unattended first hearings, and more encouragement for parties to resolve any differences in mediation.
Private law children cases are those between private individuals: parents, grandparents, or step-parents. When individuals can't agree on issues like living arrangements, schooling and medical care the family court is asked to make the decision for them. The decisions of the court are informed by the work of Cafcass, whose social workers are the 'eyes and ears' of the court on the ground.
If those responsible for a child can co-parent, then this is the best model for the child who has an opportunity to live/spend time with their main caregivers and extended families. This assists in developing a healthy sense of identity and confidence. Caregivers should try to transmit to a child that they have emotional permission to enjoy a relationship with other important adults in their life.
Sadly, many private cases cannot be resolved by agreement and proceed through the court system. There may be complex reasons for this, including mental ill health, addiction, domestic abuse and an inability for a main caregiver to allow the child to enjoy a relationship with others. There may be reasons for the private proceedings to involve a guardian representing the interests of the children separately, for expert evidence to be obtained, and for the private proceedings to have a public law element (such as the child being designated a child in need or a protected child).
All of these issues will cause delays, particularly where final hearings require several successive days of the court's time.
These delays can cause considerable harm to a child and establish a status quo that the court may then be unwilling to disrupt. In particular, if a child is not seeing a parent because of alleged safeguarding concerns that later are found not to be established, then many months could pass with no contact.
While the court tries to encourage parties to reach agreement at all stages, or at least to narrow the disputed issues, at its heart, the family court is adversarial, including in the language it uses for the parties, and the physical layout of the courts.
Domestic abuse cases have a pathway through the family court sometimes running concurrently with possible criminal law proceedings being heard in the criminal court. The two systems have two different standards of proof, and ways to protect alleged victims such as police bail conditions, restraining orders (criminal) and non-molestation orders and occupation orders (family court). A sensible approach could be to consolidate all domestic abuse issues into a specialist court and for agencies to share information in this forum. This approach has been trialled in some areas of the country with success. Some perpetrators will try to utilise the court system to continue to abuse the other caregiver, adopting tactics such as multiple applications, reports to the authorities and dragging on the litigation to financially paralyse the other caregiver. Therefore, having specialist domestic abuse courts where the tribunal is very aware of these tactics could be of benefit.
Practitioners have a duty to continue to encourage parents to co-parent post parting, recommending resources and tools to enable them to do so (see below). If agreement is still elusive caregivers/parents can attend alternative dispute resolution (ADR) such as mediation and arbitration. This is often quicker, more cost effective and in the child's best interests as a result.
Some family disagreements would be better dealt with away from any legal arena, and caregivers should also be made aware at an early stage of the potential benefit of therapeutic interventions such as systemic family therapy. Other professionals that can assist if the budget allows are independent social workers who can prepare reports and supervise the time a child spends with the other caregiver.
The delays in the system are bad for children and families.
They are partly a result of underfunding, not just of the family court, but of the other services linked to child welfare such as children's services, and mental health care. They are also party a result of an increase in parties that are unrepresented because of the unavailability of public funding/legal aid. The implication for children caught up in conflict and disputes is that they may become unable to form healthy relationships themselves in later life and suffer adverse mental health as a result of childhood trauma.
Resources
Co-parenting post separation
https://resolution.org.uk/looking-for-help/parents-children-the-law/parenting-through-separation/
Parenting plan
https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-together/parenting-plan/
Family therapy
https://www.aft.org.uk/page/whatisfamilytherapy
Other resources
https://www.onlymums.org/almost-anything-but-family-court
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
