Crisis in Family Justice?

Is the family justice system in crisis? Yes says Sir Andrew McFarlane, the new president of the Family Division of the High Court, who took over that role in July 2018. Sir Andrew was speaking at the launch of a Care Crisis review, an independent study by senior lawyers, social workers, charities & academics into the child welfare and family justice system.

The review found that the family justice system was in crisis, overstretched by increasing demand, with resources diminishing due to ongoing public spending cuts. It called for a reform of the system and for the government to review the impact of poverty and cuts to social security benefits on care applications. It recommended that the government meet the estimated £2bn shortfall in children’s social services budgets. Such calls repeat similar demands from the NHS and the armed forces for urgent funding.

Sir Andrew said the family justice system is labouring under an ‘untenable workload,’ due to a large number of applications by local authorities to take children into care. Applications for care orders reached their highest level in 2017. He questioned whether too many such applications being brought which were not serious enough to justify separating families.

The threshold for a care order is that the child is suffering or at risk of suffering significant harm due to the care being given or not being given to him/her not being what would be reasonable to expect a parent to give.

Whilst the government claims to want every child to be in a loving, stable home, and that in most cases children are best looked after by their families and only removed as a last resort, Sir Andrew thought the courts were being asked to intervene and make care order for children who were generally in need, rather than meeting the higher test of suffering or at risk of suffering significant harm. He thought such applications could be due to the difficulty parents have in accessing specialist support services, which has suffered under the austerity spending cuts. Sir Andrew said many family law professionals feel frustrated working in a sector that is overstretched and overwhelmed and, in which, too often, children and families do not get the direct help they need early enough to prevent difficulties escalating. He said there was a real sense of unease about how the lack of resources, poverty and deprivation are making it harder for families and the system to cope.

The review said that social workers were increasingly risk-averse, and too often felt under pressure to play safe by taking a child into care rather than trying to work to keep the family together. Perhaps because of a fear of media vilification in the event that the child is injured or killed, like “Baby P” (Peter Connelly) or Victoria Climbie, two of many children that have died at the hands of their carers when it was preventable.

Keeping families together is likely to become increasingly difficult after it recently emerged that a national board set up to improve the performance of the family justice system and chaired by government ministers had not met for 17 months. The national unit was set up only three years ago to support a pioneering problem-solving court service for families is shutting down due to lack of government support. Sir James Munby, outgoing president of the family division, said it was profoundly disturbing news that FDAC (family drug and alcohol court) National Unit will close in September. He said this demonstrates a failure of imagination, of vision and of commitment by national and local government.

FDAC is a system of courts pioneered by district judge Nicholas Crichton in 2008 to tackle parental substance misuse while keeping families together. It borrowed from similar courts in the USA, which proved very effective in addressing drug and alcohol misuse, which are often key elements in a UK local authority decisions to bring care proceedings. FDAC was described as one of the most important developments in family justice in the last 40 years. Twelve courts had opened, including one in Kent sitting at Maidstone, with more planned nationwide. The FDAC service was originally jointly paid for by the Ministry of Justice and the Department of Health, but will close in September 2018 because of a lack of continuing funding from central government.

Sir James Munby said of the impending demise of the FDAC system that “We must not let it go under, we really must not. The adversarial system does not work in family law – it’s what we have to fall back on if the parents are not willing to listen to us and make use of the support we give them. But a system that removes the fourth, fifth or sixth child – which happens quite routinely – from families without doing anything about the reasons for the removal is a failing system. Getting government to understand that is actually quite a challenge.”

Those families and parents who are unable at present to access FDAC, and who were hoping for the possible early arrival of an FDAC in their area may now consider their predicament bleak in the extreme. Lawyers representing family members will have to push for more support to be put in place, and will have to continue to resist the removal of children based on a lack of resources.