Problems with the Family Court

Pt 1: The problem

There are two main types of problem related to:

the harm done to both the children and parents involved
the cost, delay, rising case numbers

They are, of course, connected: for example, delays in the process of examining evidence of alleged abuse results in damage to the bond between the accused parent and the child.

1.1 General principles

Section 1 of the Children Act 1989 sets out general principles:

‘the child’s welfare shall be the court’s paramount consideration’;
‘any delay in determining the question is likely to prejudice the welfare of the child’; [1]

The current system appears to be failing in those duties.

Experiences which harm children, known as ACEs (Adverse Childhood Experiences), can include violence, neglect, etc. The current Family Court process can add another ACE in the form of unnecessary separation of a child from one parent or the child’s experience of the effects of polarisation of their parents.[2] [3] [4]

Enabling Alienating Behaviours

Alienating behaviours occur when parent A ‘bad mouths’ parent B to the child to the point where the child no longer wants contact with B. While this can happen in the absence of the Family Court, the adversarial process encourages ‘the other parent is bad’ thinking which makes this behaviour more likely.[5] [6] (These behaviours (though not the term) have been acknowledged in the Statutory Guidance for the Domestic Abuse Bill 2021 and by Cafcass.)

Unnecessary separation

Besides the more obvious value of the mother, there is a wealth of international evidence showing the beneficial effects of fathers and the links between fatherlessness and a range of negative life chances, including education, crime etc. [7]

When the court unnecessarily separates a child from one parent, they add to these statistics. For example: when accusations of domestic abuse result in one parent being denied contact while a fact-finding process takes place. Even if contact is later restored, it can damage the child-parent bond.[8] [9]

Harm to parents

Hostility promoted

Under the current system, since there is no default level of contact, if the non-resident parent wants more time with their child, they need to convince an adversarial court that this is in the best interests of the child.[10] [11]

The current system may well be unwittingly promoting Intimate Partner Violence as, when joint custody is introduced, there is a reduction in IPV.[12]

Increasing suicide

Besides the stress caused to both parents, there is evidence that, of the 4000 male suicides each year in the UK, perhaps 20% are linked to relationship breakdown, loss of contact with their children etc.[13]

Accusations of Domestic Abuse

Even when these claims are later not proven or even disproven, they can have a long-term, seriously damaging effect.[14] [15]

Financial cost

The financial, stress and time costs to the parents involved is itself damaging.[16]

1.3 Systemic problems

High and rising costs of the Family Court

Family Court cost the government £970m in 2019/20 in England and Wales, with the Court sitting for 463,000 hours. Legal Aid accounts for 62% of the cost to government, whilst HMCTS and judiciary costs 26% and Cafcass 12%. While private law cases are a significant minority of the State’s costs, litigants may themselves spend further £millions per annum on their own lawyers and court costs. [17]

Long delays in the system

Increases in length of proceedings

Even before COVID, the length of time of family law proceedings was increasing at an alarming rate, mainly due to the increased number of litigated cases. HMCTS Annual Reports shows the time taken for cases in the family court has risen from 23 weeks in 2016-17 to 40 weeks in 2020-21.[18]

Up to 30% of the private family law proceedings are returning cases, largely the result of violations of orders made.[19] [20]

Parents report legal teams arriving unprepared for the scheduled session and asking for adjournment.

Increasing numbers of cases

Increasingly, separating couples with children are going to the Family Court. Cases in the Family Court have risen by around 8% each year since 2015 and it is estimated 38% of all separating couples with children will use the Family Court.

The high and growing number of accusations of domestic abuse

Cases of alleged domestic abuse have risen from 30% in 2008 to 50% in 2015 and 62% in 2017. These accusations significantly add to both the cost, delay and harm to participants when no abuse is proven.[21]

There are few consequences for a malicious parent who makes allegations of DA which are not found true. False allegations and vexatious claims add further burdens to the system. Some members of the Judiciary have observed that many of these allegations would not meet the standards applied in criminal law proceedings. [22]

Perceived bias in the Judiciary and Cafcass

Many non-resident parents perceive a bias against them in the court process.

This promotes further Family Court time (and expense, stress etc) when they return to court in an attempt to redress findings they judge as not based on evidence.[23] [24]

1.4 Vicious cycle

Parents resort to the Family Court when they cannot agree amicably. However, a vicious cycle can set in because the costs, delays and polarisation of the court process can aggravate their disagreement, leading to even greater demands on the Family Court process.

[1]Children Act 1989 Section 1. https://www.legislation.gov.uk/ukpga/1989/41/section/1

[2] Norfolk NHS consider ‘loss of contact with a biological parent’ as an ACE. https://www.justonenorfolk.nhs.uk/digital-health-profiles/keeping-safe/adverse-childhood-experiences

[3] Manchester University NHS Trust consider ‘Losing a parent through divorce, death or abandonment’ to be an ACE. https://mft.nhs.uk/rmch/services/camhs/young-people/adverse-childhood-experiences-aces-and-attachment/

[4] Hardt, J. & Rutter, M. Validity of Adult Retrospective Reports of Adverse Childhood Experiences: Review of the Evidence. J. Child Psychol. Psychiatry 45, 260–73 (2004).

[5] Harman, J. J., Matthewson, M. L. & Baker, A. J. L. Losses experienced by children alienated from a parent. Curr. Opin. Psychol. 43, 7–12 (2022).

[6] Miralles, P., Godoy, C. & Hidalgo, M. Long-term emotional consequences of parental alienation exposure in children of divorced parents: A systematic review. Curr. Psychol. (2021) doi:10.1007/s12144-021-02537-2.

[7] Hadley, R. Deconstructing Dad. in The Palgrave Handbook of Male Psychology and Mental Health (eds. Barry, J. A., Kingerlee, R., Seager, M. & Sullivan, L.) 47–66 (Springer International Publishing, 2019). doi:10.1007/978-3-030-04384-1_3.

[8] Moss, E. & St-Laurent, D. Attachment at school age and academic performance. Dev. Psychol. 37, 863–74 (2001).

[9] Verrocchio, M. C., Marchetti, D. & Fulcheri, M. Perceived parental functioning, self-esteem, and psychological distress in adults whose parents are separated/divorced. Front. Psychol. 6, (2015).

[10] Bentley, C. & Matthewson, M. The Not-Forgotten Child: Alienated Adult Children’s Experience of Parental Alienation. Am. J. Fam. Ther. 48, 509–529 (2020).

[11] L. Baker, A. J. The Long-Term Effects of Parental Alienation on Adult Children: A Qualitative Research Study. Am. J. Fam. Ther. 33, 289–302 (2005).

[12] Bargaining under Threats: The Effect of Joint Custody Laws on Intimate Partner Violence | IZA – Institute of Labor Economics

[13] Seager, M. From Stereotypes to Archetypes: An Evolutionary Perspective on Male Help-Seeking and Suicide. in The Palgrave Handbook of Male Psychology and Mental Health (eds. Barry, J. A., Kingerlee, R., Seager, M. & Sullivan, L.) 227–248 (Springer International Publishing, 2019). doi:10.1007/978-3-030-04384-1_12.

[14] Avieli, H. False Allegations of Domestic Violence: A Qualitative Analysis of Ex-Partners’ Narratives. J. Fam. Violence (2021) doi:10.1007/s10896-021-00342-w.

[15] Taylor, J., Bates, E., Colosi, A. & Creer, A. Barriers to Men’s Help Seeking for Intimate Partner Violence. J. Interpers. Violence 088626052110358 (2021) doi:10.1177/08862605211035870.

[16] Berger, J. L., Douglas, E. M. & Hines, D. A. The mental health of male victims and their children affected by legal and administrative partner aggression. Aggress. Behav. 42, 346–361 (2016).

[17] Hines, Douglas, E. M. & Berger, J. L. A self-report measure of legal and administrative aggression within intimate relationships. Aggress. Behav. 41, 295–309 (2014).

[18] HMCTS Annual Reports https://www.gov.uk/government/publications/hm-courts-tribunals-service-annual-report-and-accounts-2020-to-2021

[19]https://www.cafcass.gov.uk/2017/11/28/cafcass-publishes-new-research-private-law-cases-return-court/

[20] https://fnf.org.uk/latest-news/press-releases/825-fnf-family-court-delays-latest-moj-data-press-release

[21] https://www.cafcass.gov.uk/wp-content/uploads/2017/12/Allegations-of-domestic-abuse-in-child-contact-cases-2017.pdf

[22] Hans, J., Hardesty, J., Haselschwerdt, M. & Frey, L. The Effects of Domestic Violence Allegations on Custody Evaluators’ Recommendations. J. Fam. Psychol. (2014) doi:10.1037/fam0000025

[23] Douglas, E. M. & Hines, D. A. The Helpseeking Experiences of Men Who Sustain Intimate Partner Violence: An Overlooked Population and Implications for Practice. J. Fam. Violence 26, 473–485 (2011).

[24] Hine, B., Wallace, S. & Bates, E. Understanding the Profile and Needs of Abused Men: Exploring Call Data From a Male Domestic Violence Charity in the United Kingdom. J. Interpers. Violence 088626052110280 (2021) doi:10.1177/08862605211028014.