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In England and Wales between July 2020 and the end of June 2021, 59,771 private law children applications were issued. The number of children involved was nearly 90,000 (88,970). This is not a new trend and cannot be attributed solely to COVID-19 or its knock-on consequences. If children involved in public law applications are included, the total rises to 118,057 in the same 12-month period. This is equivalent to the total populations of Worcester, Rochdale, Bath, Darlington or Chester, but is happening every year. 

All these figures are publicly available in the Ministry of Justice . They do not include cases referred to mediation or those resolved in other ways, such as an agreement between parents when their relationships break down, or with the help of their solicitors.

All family lawyers are acutely aware of the problems facing the family courts and judges are desperate to encourage parents to find other means of resolving disputes about the arrangements for their children, but it would seem that their pleas and warnings are not being listened to. The government is considering imposing ‘financial penalties’ when unnecessary applications are made. Certainly, it is likely that judges will start making costs orders in such circumstances or even wasted costs orders against solicitors.

Politicians and society generally need to accept the enormity of the problem these figures reveal, but until they do what can those in the family justice system offer? First and foremost, we must remember the children involved and put them first. That may seem a statement of the obvious and is enshrined in the Children Act 1989 (ChA 1989), but in day-to-day practice is it being ignored?

Over 12 months ago, the Family Solutions Group (a sub-group of the President of the Family Division’s Private Law Working Group) issued a report titled ’ It concluded, then, that to suggest that the family justice system was in crisis was ‘no exaggeration’. The report included a raft of recommendations putting the children central in the decision-making process and away from the current system which it described as ‘led by the needs and wishes of the parents’.

Commenting on the report, the President estimated that about 40% of all separating parents made applications to the family courts about the care of their children ‘…rather than exercising parental responsibility and sorting out problems themselves’. That did not exclude help from other sources such as solicitors and mediators.

The report called upon the government to take a lead along the lines of the government in Wales. Yet a year has gone by and little, if anything, has changed. Instead, judges are suggesting that the family courts should be open to greater transparency, something which children would abhor and a development which would terrify nearly all of those going through divorce and separation and in many cases deter them from ever making any application to the courts. Private life is, by definition ‘private’ and most clients would want it to remain so.

Against this background, the Nuffield Family Justice Observatory has published a reviewing research undertaken both in this country and worldwide over the last 20 years about children's experiences in private law proceedings. The key messages are:

• parental separation can be highly stressful for children and can have a big impact on their lives which can last into adulthood and the court system should minimise stress and harm rather than add to it
• children all too often feel left in the dark about what is happening in their parents' separation and in the court process, they feel ‘unheard’, particularly in the court process, and
• many children want to be more involved in decision making and not being heard (or heard properly) causes children significant distress, although there is an important distinction to  made between having their views listened to and taken seriously on the one hand and on the other wanting responsibility for the final decision and children need time and support, especially where domestic abuse is a factor

What can family lawyers do?

A priority for all of us as family lawyers is to take the initiative. If we don't, it is unlikely anyone else will. There needs to be ‘root and branch’ review of the way in which private law children applications are dealt with, for example:

• do we really need in most cases three or even more hearings?
• do fact-finding hearings achieve much, except delay and expense?
• why is it that only very late in the day that anyone attempts to talk to and listen to the children when CAFACSS start preparing a report?
  

By contrast, in family mediation, the code of practice for family mediators issued by the Family Mediation Council requires mediators to encourage parents to consider the children's wishes and feelings and all children aged ten or over should be offered the opportunity to have their voices heard directly during the mediation, if they wish, with the assistance of properly trained mediators (child inclusive mediation). If that is the right course of action in mediation, why is it not in court proceedings?

ChA 1989, s 1 could not be clearer: delay is likely to prejudice the welfare of the child. What is anyone doing to prevent this?  Delays as we know are increasing. , it took on average 41 weeks for private law cases to reach a final order, ie case closure, up by 13 weeks from the same period in 2020. This continues the upward trend seen since the middle of 2016, where the number of new cases overtook the number of disposals.

Other solutions, such as mediation, collaboration and arbitration avoid delay. Why are we not using them much more frequently? We need to look at our own practice and ask ourselves if, in most cases, we put our clients' children first.  We should ask what issuing court applications achieves in the majority of cases, except for delay, expense and an enormous amount of stress and anxiety and more damage on already fractured parental relationships.