Unintentional harms

Timeline of unintentional damage by the Family Court

The Family Court does a vital job in dealing with high-conflict cases and cases of abuse. However, most observers agree that far too many families end up in court when their case should be resolved elsewhere.

A common problem

Parents A and B have separated. They have a child together, whom they both love very much. But they are both emotionally raw, struggling with the feelings of hurt, anger and grief that often attend the breakdown of a marriage or intimate partnership. One parent may have lost their home and they may both be struggling financially, for reasons relating to the relationship breakdown. They are full of mistrust of each other.

In these circumstances, it is common for one parent (Parent A – usually, but by no means always, the mother) to simply take the child, whilst refusing to communicate with Parent B. This is likely to cause anguish to Parent B, who may contact the Police or Social Services to seek help to see their child but will be turned away because both parents have parental responsibility and the matter will be dismissed as a ‘private law’ matter.

Parent A may contact a helpline for an organisation like Women’s Aid or Refuge and will often be advised that acts such as Parent B shouting at Parent A, or trying to visit her home uninvited (which may be quite usual and natural things for a parent in Parent B’s position to do, in order to try to see their child) constitutes ‘domestic abuse’. Parent A may be advised to apply for a non‑molestation order when Parent B next tries to visit or make contact, both to protect against potential violence between the parents and to establish Parent A’s eligibility for Legal Aid in any subsequent court proceedings about the child (since Legal Aid is generally not available for ‘private law’ Children Act proceedings unless domestic abuse has been ‘proved’ such as though the obtaining of a non-molestation order).

As a result of this chain of events, Parent B may find himself being brought to court in non‑molestation order proceedings (which are heard very urgently by the Family Court) and possibly arrested. The situation between the parents becomes even more fractious and destructive. Parent B may start private law Children Act proceedings to try to see their child but Parent A may respond by making allegations of domestic abuse. The Family Court deals with such proceedings far more slowly than non-molestation order applications, and the current delays in the Family Court mean Parent B may be cut off from their child for literally years whilst the court proceedings make painfully slow progress.

The typical course of a Children Act case is as follows:

Parent A takes the child and refuses to respond to contact from Parent B seeking to arrange to see the child.
Parent B seeks help from the Police, Social Services and other agencies but is told this is a private matter and they can’t help.
When Parent B tries to see the child, he may be arrested or have a non-molestation order made against him.
Parent B has little choice but to go (reluctantly) to start Children Act proceedings in the Family Court to seek to regain his relationship with the child.
Parent B is required to attend a mediation information meeting (MIAM) prior to starting those court proceedings. This causes further delay but is usually pointless as usually Parent A, who has the child, has no incentive to engage with mediation.
Parent B files form C100 to start the Children Act proceedings.
The Court’s social work advisory service, Cafcass, has short phone conversations (often no more than 15 minutes) with each parent and then produces a ‘safeguarding letter’. This takes around 8 weeks. Where Parent A makes allegations of domestic abuse against Parent B, Cafcass usually recommend ‘no contact’ between Parent B and the child, pending the Court’s determination of the allegations. This is the usual Cafcass recommendation in such cases even where Parent B has an entirely clean criminal record and even if they are happily caring for other children.
The bond between the child and Parent B is weakening. The child will often be being influenced by Parent A’s negative feelings towards Parent B.
The case goes to First Hearing and Dispute Resolution Appointment (FHDRA) in court, which is supposed to be for dispute resolution but is now only 30-45 minutes long. These hearings now often take place before a magistrates’ legal adviser, who has no power to order any arrangements for the child to see the parent. If the hearing is before magistrates, they often simply follow the Cafcass recommendations (which are based on Cafcass’s current policies and training, not the principles in the Family Court’s case-law).
The judge, magistrates or legal adviser reads the Cafcass letter, which contains allegations of domestic abuse by Parent A (or by both parents).
The judge orders each party to produce a ‘Scott Schedule’ outlining their allegations against the other parent, so the Court can decide whether factfinding is needed. It is common for the process of exchanging Scott Schedules and supporting evidence to take several months.
The next hearing may be anything up to a year away, even after Scott Schedules have been exchanged, due to the very long delays at many Family Court centres, especially in London.
If a fact finding hearing is ordered, it make take place many months, and sometimes several years, after Parent B was cut off from the child. Although Parent B may apply for interim contact arrangements, the Court may take many months even to hear that interim application, by which time the Court may decide it is too difficult to ‘reintroduce’ Parent B to the child as an interim measure. That is partly because there is no professional support from Social Services for such reintroduction processes, and it can be difficult to implement peaceful arrangements when the parents are preparing to fight each other with unpleasant allegations at a future fact finding hearing.
By the time Parent A is able to show their innocence (or even – as is more often the case – there are findings made against both parents, but which are not significant enough to render them unable to parent their child), the bond with their child has already been very seriously fractured.
Even if Parent B is found to have done nothing wrong, the Court will still order that Parent B be reintroduced to the child by way of ‘supervised contact’ in a contact centre. Parent B is usually order to pay all, or at least half, the costs of the contact centre (often around £100/hour) even where Parent B did nothing to cause the breakdown in the relationship.
Parent A may then simply refuse to obey the court order and continue to exclude Parent B. The Police will not assist Parent B in enforcing the order, but will often arrest Parent B if he goes to Parent A’s house to try to see the child.
Parent B is left trying to enforce the order by bringing enforcement proceedings in court. This will often be very expensive and slow. Even where Parent A is found to be deliberately flouting the court order, it is very rare for such a parent to be sent to prison. The only real option available to the Court is to move the child’s residence from Parent A to Parent B, but it can be difficult for Parent B to persuade a Court that this is in the child’s best interests, as the child will be attached to Parent A and may have no relationship at all with Parent B (even if previously parent and child had a close bond).
As the outcome of this unhappy protracted saga, Parent B is left in huge debt and is emotionally devastated. Parent A will often have had the benefit of Legal Aid, which will not be repayable even if her allegations have been found to be wholly or largely false or exaggerated.
The child loses out on a relationship with one of his/her parents. There is a wealth of evidence that this leads to significantly diminished life chances in terms of school performance, mental illness, and involvement in crime.

The system is failing children.

Potential solutions

Provide early help to families. Parents in the position of Parent B should be able to access the ‘early help’ service from their local authority. Social workers should try to help broker safe interim arrangements to protect the child’s relationship with both parents. If that cannot be achieved, the matter should come before a District Judge with the same speed as the Family Court deals with applications for non-molestation orders.
Such early help would keep many cases away from court and therefore save huge amounts of public money.
Cases in the court system should have allocated social workers who visit families and meet the child. There should be clear target timescales for private law cases to be resolved (as there are for ‘public law’ Children Act cases).
Even when a case comes to Court, early hearings should be given longer listings so that Judges have time to hear evidence directly from the parents. Courts should seek to encourage parents to resolve matters between themselves even after proceedings have started – but social work support is needed if this is realistically to be achieved. Courts should also be required to consider whether safe interim arrangements can be put in place and, if the Court decides they can’t be, should give reasons.
Courts must take a tougher approach to enforcing their own orders. Breaching orders must have consequences if the system is to command respect.
The emphasis should be on early help and support for separating families, with the court system there as a backstop, not as the primary forum in which disagreements between separating parents are sorted out.

Text by a practicing barrister with Family Court experience.