We wrote here back in September 2022 about the scourge of delay in court proceedings concerning children, with particular reference to private law proceedings between parents regarding arrangements for their children.
Sadly, the latest statistics show that the scourge of delay in child proceedings, (and in private law children proceedings and public law children proceedings) (i.e. proceedings involving the local authority)) has not gone away.
In fact, the problem in relation to private law proceedings has hardly improved at all.
In December the Ministry of Justice published its latest quarterly statistics for the Family Court, for the period July to September 2023. The statistics showed that in that period it took on average 45 weeks for private law cases to reach a final order, i.e. case closure.
In September 2022 we reported that such cases were taking an average of 46 weeks to reach a final order. That was the highest value since 2014, when the quarterly Family Court statistics were first published.
The Law Society, the representative body for solicitors, warned that the statistics “show a growing crisis in the family justice system”.
Law Society president Nick Emmerson said: “There were more than 80,000 children caught up in the family backlogs last year. We are seeing similar numbers this year. It is unacceptable that thousands of children are waiting almost a year to find out who they will be living with long-term because of delays in the family court system.
“Delayed justice can cause significant harm to the wellbeing of both children and parents by preventing them from having the stability they need to thrive. Research shows that children involved in private law proceedings are more likely to experience depression and anxiety.”
The latest Family Court statistics did not include data for the timeliness of public law cases.
However, such data was included in the annual report and accounts of the Children and Family Court Advisory and Support Service (‘Cafcass’, which looks after the interests of children involved in family proceedings), which were published in December.
The report covers the year to March 2023, and shows that in the final quarter of that year (January to March 2023) the average length of public law care and supervision proceedings was 46 weeks, which was 10 weeks longer than reported for the same period in 2020.
It should of course be noted that the Children and Families Act 2014 introduced a requirement that public law proceedings should be completed within 26 weeks, a target that is clearly not being met in very many cases.
Cafcass says that delays “continue to have a negative impact on children”, and that: “Delay for children as a result of longer case durations is now the single most pressing issue for the family justice system.”
Cafcass reports that it has prioritised reducing delay, although an Ofsted inspection of Cafcass in January 2023 concluded that delayed proceedings in most instances are outside of Cafcass’ control, citing a range of reasons, including a lack of court time, constrained court administrative capacity and local authority delays.
Sadly, there is little that families involved in public law proceedings can do to reduce delay in their cases. As Ofsted indicated, the answer primarily lies with providing greater resources for courts and local authorities.
But whilst similar considerations apply regarding court resources in private law proceedings, parents involved in such proceedings are able to take steps to reduce delays.
For one thing they can ensure that they comply with the timetable set by the court, in particular for filing evidence.
But they can also avoid court proceedings entirely, by seeking an out of court solution, for example via family mediation, collaborative family law or arbitration. Resolving matters out of court will not only be quicker for them, but will also of course reduce the pressure on the court system for others.
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As is well known, the primary piece of legislation concerning the law relating to children is the Children Act 1989. But there has since been other legislation passed in relation to children law, including legislation that amends the Children Act itself. One such piece of legislation, and one of the most important since 1989, is the Children and Families Act 2014 (‘the 2014 Act’).
The 2014 Act is a lengthy statute, running to 140 sections and seven schedules. While we can’t cover all details here, the Act significantly impacted arrangements for children, addressing three crucial aspects.
It has long been recognised that family issues should best be resolved out of court, preferably by agreement.
Since the 1990s, mediation has been recognized as one of the most effective methods for couples to reach agreement.
The problem is that many couples are not aware of mediation, or that their case is suitable for mediation.
In about 2011 this was recognised by the introduction of Mediation Information and Assessment Meetings, or ‘MIAMs’ for short.
The MIAM informs the couple about mediation and assesses the suitability of their case for this process.
But initially attendance at a MIAM was not compulsory.
The 2014 Act changed that by stating that anyone wishing to make an application to the family court must first attend a MIAM, unless they are exempt from doing so, for example because they have been a victim of domestic abuse.
One of the more controversial reforms of the 2014 Act was an amendment to the Children Act.
The amendment introduced a requirement that, when considering an application to the court in relation to a child, the court must presume, unless the contrary is shown, that the involvement of both parents in the life of the child concerned will further the child’s welfare.
The reason that this was somewhat controversial is that it didn’t go as far as some people wanted. In some quarters, particularly those interested in fathers’ rights, it was argued that there should be a presumption that the child should spend equal time with each parent, unless there was a good reason why this should be so.
But the presumption of parental involvement didn’t say that. In reality, it is commonly believed that it had minimal impact on the courts’ decisions concerning children.
The last change in the 2014 Act that we want to mention is perhaps the most significant.
Again, this change amended the Children Act.
The Children Act introduced the terms ‘residence’ and ‘contact’, to replace the old terms ‘custody’ and ‘access’, which were considered to be outdated, particularly the word ‘custody’, which inappropriately implied physical ‘ownership’ of a child.
By 2014, the terms ‘residence’ and ‘contact’ were deemed outdated, with ‘residence’ implying a higher status for the parent with the order. It was thought that this perceived status made it more difficult for parents to resolve matters by agreement.
The Children and Families Act 2014 replaced ‘residence’ and ‘contact’ orders with the ‘child arrangements order’ in the Children Act.
A child arrangements order regulates with whom a child lives, spends time, and has contact, specifying when these arrangements occur.
Thus what was once called a ‘residence order’ is commonly referred to as a ‘lives with’ order. The term ‘contact’, still present in the definition of a child arrangements order, is commonly used for the non-residential parent.
