On 13 October 2022, JUSTICE published its report “Improving Access to Justice for Separating Families”. The report was prepared by a Working Party of experts, chaired by Professor Gillian Douglas, Emeritus Professor, King’s College London. Two barristers from Garden Court Chambers, Natasha Shotunde and Naomi Wiseman, were part of the Working Party and provided their insight and expertise to this important report.
The Working Party consulted widely with professionals and experts in the family justice system; individuals (adults and children) with experience in using the system; and those outside it, from other jurisdictions and from other child-related disciplines. The central question for the Working Party was how to better secure access to justice for separating families. Separation can be a distressing and traumatic event, particularly when children are involved.
The report identified the many challenges facing families which will be familiar to those of us working in the area. The report found that families face a confusing and disaggregated landscape of advice and support; that affordable and trustworthy legal advice is scarce (families in court are disproportionately economically deprived) and that there is a lack of coordination of the support families need.
It further identified that those who do go to court, often do so unrepresented since legal aid was significantly cut in 2013 and that these litigants, in person, experience a system still designed for lawyers, which is marginalising, confusing and stressful. A very significant issue identified is that additional vulnerabilities, such as domestic abuse, mental health difficulties, and substance abuse, are prevalent amongst court users and can intersect, whilst courts with limited resources struggle to cope with families’ complex problems.
The report also importantly highlighted that children who are at the centre of the dispute, but in the vast majority of cases, are not a party to the legal proceedings. They too often feel unheard and unsupported, like the object of an adult dispute, rather than individuals with their own perspective about their future – and a right to be heard.
The report then made 43 recommendations related to child arrangements problems and their resolution in England and Wales. They build upon reforms in private family law already underway, including the commencement of the Domestic Abuse Act 2021 and the ‘pathfinder courts’ being piloted currently in Dorset and North Wales.
These recommendations included:
- Information and early legal advice: a single authoritative information website for separating families and piloting publicly funded early legal advice for child arrangements problems.
- Coordination of legal and non-legal services: the creation of hubs, alliances and networks to coordinate services for separating families in the community, including the use of DfE-funded family hubs. Legal and non-legal services must work in partnership to support families with their child arrangements problems.
- Consistent risk screening: the systematic use of a common, structured, overall risk screening tool by professionals throughout the family justice system, including mediators, legal professionals, and Cafcass in court, to ensure a consistent and proportionate response to risk, wherever a family go for help.
- A child participation presumption: throughout the justice system, there should be a new presumption that all children will be offered the opportunity to participate in processes that assist in the resolution of a dispute which concerns them, both in and out of court, in an age-appropriate way.
- Non-court dispute resolution: in addition to mediation, other non-court dispute resolution processes should be financially supported, including “packages” of support which combine legal help with non-legal help (like counselling).
- An initial investigation should be conducted by a multidisciplinary "Court Team" – consisting of a case progression officer and a Cafcass officer, to which specialists, e.g. in domestic abuse, could be added. They would screen the whole family for risks, provide the family with information, talk to the adults and relevant third parties, such as the child’s school, and importantly, also consult the child.
- Funding for expert evidence and representation: when the court deems expert evidence or testing is necessary, but the parties cannot afford it, there must be funding available. When the court decides the child should be a party, there must be sufficient resources to make a Guardian available.
- Child participation in court: the court should have an explicit duty to offer children the opportunity to participate. This participation is a process, not a one-off event, which means letting the child know what has been written about them more often; let them meet the decision-maker more often (and training judges and magistrates to do this), and give the child feedback about the outcome and how their voice was taken into account.
- Cases should be reviewed as standard: a reviewing officer, normally Cafcass, should follow up with the family (including the child) after a certain period of time to ask if the final order is working in the best interests of the child.