Problems in the Private Family Justice System
Updated: Jan 29
What are the problems in the Family Law Justice System? The Private Family Justice system is a huge one – and though many people rely on it, it is bound to have multiple flaws. This article will explore the issues in the family law system, and why these issues are so severe.
Contents of this article:
When Do People Use the Private Family Law System?
When families separate and they can not come to an agreement regarding children’s living arrangements, going to family courts becomes necessary. In private family law no external bodies, such as foster care, will be involved, and the case is fought between two private parties, for example, two divorcing parents. This article will be referring to the private family law system.
Resource Constraints – Not enough money, workers or time.
One of the most glaring problems in the family justice system is resource constraints, predominantly a lack of money which eventually snowballs into a lack of people, time, attention to cases and therefore accuracy in court orders.
CAFCASS are an independent organisation who “advise the family courts about what is in the best interests of children”. CAFCASS officers are allocated to convey the “ascertainable wishes and feelings of the child” alongside other welfare factors, which are legally required to be considered under Section 1 of the Children’s Act of 1989. Essentially CAFCASS will act as the judge’s eyes and ears on the ground.
In 2020, there were 55,669 private law cases filed in the UK, and CAFCASS worked with 141,243 children across England. Despite this, CAFCASS only have 2000 staff. With CAFCASS officers spread dangerously thin, it’s self-explanatory as to how so many children plummet down the metaphorical cracks in the UK's family law system. A CAFCASS statement explains that “the pandemic has exacerbated existing pressures and cases are, therefore, staying open for longer. The result is that caseloads have been building up to unsustainable levels'' This is evidenced by how open cases reached a record high of 44,753 in April 2021. In an attempt to address this, the government increased CAFCASS’s 2021 funding by £7.9 million, raising it to a total of £135.7 million. But Ian Lawrence, the General Secretary of NAPO, the trade union for CAFCASS staff, admits that this funding “will barely touch the surface.”
A study conducted and published by the government in June 2020 titled “Assessing the risk of harm to children and parents in private law children's cases” pointed out that magistrates, legal advisors and CAFCASS officers were made to work through up to seven
or eight court hearings a day. This meant that each court hearing was listed for the wholly unrealistic time slot of thirty minutes. These hearings have life-changing outcomes for those involved and the impractical time pressure on judicial workers leads to adjourned hearings and unmanageable backlogs of open cases. The same government report cites a judge who elucidates that “the system is just crumbling now. We can’t cope with it.” As we let the system collapse, it is vulnerable children who continue to be caught in the wreckage.
Incorrect CAFCASS Reports and Judgements, and their effects.
As mentioned earlier, CAFCASS will communicate with all involved parties and produce a Section 7 report - an evaluation of a situation that essentially collates the CAFCASS officer’s opinion on what should happen with the child. Only 3.6% of all cases do not enforce the recommendations of the CAFCASS report, as these Section 7 reports are often treated as gospel - the unquestionable truth about the best interests of the child. With the limited amount of time that CAFCASS officers are granted per case, mistakes in judgement do occur, and even CAFCASS officers can fall suspect to the web of lies that are indigenous to family court cases, and be fooled into thinking an abusive parent was innocent all along.
Many people, and society in general, including CAFCASS officers and judges, are correctly incorrectly, known to hold the bias that women cannot be abusers, and that mothers are primary parents. This thinking may protect victims from male abusers – but also serves to endanger, invalidate and ignore victims of female abusers, specifical children with abusive mothers who find themselves at higher risk of being forcefully put in contact with women who will maltreat them.
Children forced to be in contact with abusers – Pro-Contact Culture.
The court has what’s called a presumption of parental involvement, meaning they believe that both parents need to be in their children’s lives as much as possible, this could be through partial custody, day visits, supervised meetings at contact centres or scheduled face time or voice calls. But when this pro-contact culture is taken too far, as it often is, it predictably causes many children to be forced to interact or even live with perpetrators of domestic violence, allowing children to be continually hurt and traumatised.
The government report referenced earlier dedicated an entire section to this very issue and included quotes from people who had been victims of such orders. A mother, whose child was forced to stay with her violent ex-partner explains that “The courts have not only allowed our abuser to continue to abuse us, but they have also actively participated in our abuse for the past three years.” Another parent recalls how “The following week [CAFCASS] tried to force [my child] into a room with him. She saw his car and began screaming, crying and shaking in the car park refusing to go in there, but CAFCASS did nothing”. Even family lawyers recount how they “have examples of children so desperate not to go to contact they hide under beds, lock themselves away in rooms, run into roads and hurt themselves so they don’t have to go to contact.”
The non-abusive parent finds themselves in an impossible situation, having to choose between endangering and traumatising their own child by sending them to an abuser, causing their child to lose trust in them completely. Or catering to their child’s needs and wellbeing, and having the court threaten the removal of children entirely from their care, claiming it was a breach of a court order.
As is evident by these few excerpts, the family law system’s generalised, one-size-fits-all strategy for treating court cases leads to pain, avoidable trauma and worsened situations for vulnerable and innocent children.
Inequality of Arms, and the Emotional Toll of a Family Court Case.
Though court orders can be appealed, the process is expensive, consisting of court fees, astronomically high lawyer fees and any additional costs that will inevitably accompany having to take days off work for the preparation and attendance of court hearings. Eventually, litigants end up emptying their banks simply to find justice, causing what is called an Inequality of Arms, where one party is at an advantage simply due to their economic standing. This, coupled with the tolling emotional stress of fighting a court case, makes appeals inaccessible to many.
How will the Family Law system be fixed?
However, on a more positive note, the government are trying to address some of these issues. They have acknowledged the massive underfunding problem, will try to ameliorate the identification of abuse, implement a more proactive response where children may be in contact with an abusive parent and address the inequality of arms.
They have recommended mainly changes in the way that individuals in the court operate and ensuring that the existing procedures are actually executed.
But amongst their lengthy plans to mend the system, the government haven’t actually provided any hard dates by which they will act on their promises, so if you are wondering: “How will we know they’ll get it right this time?”. Only time will tell.
Many reports and studies have been done, but teh fact remains that the under-resourced, overworked system, by plague delays, preh=judices, lack of training and biases suffering from the impacts of a pandemic is creaking at best, if not breaking completely at worst.
Where can I get help for fighting a Family Law Case?
However, if you are experiencing troubles with the family law system (for example, inattentive solicitors, legal aid not meeting your expectation, biased CAFCASS officers, no progress with your court case, unfair onslaught of allegations from the opposing party) we can help you at the incredibly low price of 75 Pounds Per Hour plus VAT, which is less than half the cost of an average solicitor. Look at our reviews here, fill in our QUICK CONTACT FORM at the bottom of the page or call us at 07375757510 for more information.