Family Court Reform and CAFCASS

Alex Cunningham Excerpts

Wednesday 22nd March 2023 Westminster Hall

[Alex Cunningham (Stockton North) (Lab)]

It is an extra special pleasure to serve under your chairmanship this afternoon, Ms Cummins. I apologise to you and the House for arriving a few minutes late for this debate. Similarly, I apologise to my hon. Friend the Member for Coventry North West (Taiwo Owatemi), but I congratulate her on securing this important debate.

We have had a couple of powerful and persuasive speeches today that demonstrate the urgent need for further reform to the family justice system so that victims of abuse and the children at the centre of proceedings are given the protection from harm and risk of harm that they both need and deserve. My hon. Friend the Member for Birmingham, Yardley (Jess Phillips) spoke in her usual strong and blunt fashion in defence of the victims and the pleas for change. I do not know if my speech will add any additional value to what we have heard this afternoon, but I say to her that she should not lose confidence in the work she has championed in this place, because she needs to be doing it. I never thought I would manage to make my hon. Friend blush, but today I have succeeded.

It has been more than two years since the Ministry of Justice published the harm report, “Assessing risk of harm to children and parents in private law children cases”. The panel that wrote the report said that the extensive evidence submitted to it

“unveiled deep-seated and systemic problems with how the family courts identify, assess and manage risk to children and adults.”

While we of course welcome the changes brought in by the Domestic Abuse Act 2021, including the ban on cross-examination of victims of abuse by their perpetrators in the family and civil courts, it is clear that much more needs to be done.

Women’s Aid conducted research with specialist support services and survivors of abuse who have been involved in private child proceedings since the Government’s implementation plan for the harm report recommendations was published in 2020. It found that the optimism and hope that the publication of the report had brought have been destroyed by Government inaction and that lack of progress on the report’s findings has left them disillusioned and disappointed.

Women’s Aid also found that for many family court practitioners and professionals, their understanding of coercive and controlling behaviour and how perpetrators can and do use family court proceedings as another form of post-separation abuse is still insufficient. Survivors of domestic abuse are left feeling as if their experiences are ignored. The report from Women’s Aid notes that they feel that

“as mothers they are trapped within a continuum of blame, facing contradictory accusations both of failing to protect their children from the perpetrator, and failing to facilitate contact between child and perpetrator.”

The report also identifies serious concerns with parental alienation, and my hon. Friends the Members for Coventry North West and for Birmingham, Yardley have addressed that this afternoon. Indeed, several of the survivors Women’s Aid spoke to in its research have had their children removed from them as a result of accusations of so-called parental alienation or alienating behaviours when they raise concern about unsafe contact arrangements for their child.

As we have heard today, this apparent belief system has come under increased international scrutiny. Indeed, several countries now refuse to recognise it as a result of the risk it poses of placing a child with an abusive parent. Following a recent survey of more than 4,000 court users in England and Wales, it is estimated that allegations of parental alienation are made in nearly 70% of family court cases in England and Wales. That astonishing number underlines the necessity for immediate Government action. In these cases, unregulated, self-declared experts, such as milkmen, are invited to give evidence, even though they have little to nothing in the way of formal qualifications to do so. In fact, they may have a vested financial interest in diagnosing so-called alienation, which they may then be paid to treat. Only last month, Sir Andrew McFarlane, the president of the family division, commented in the case of Re C that there was a “need for rigour” and “clarity” when instructing psychologists to give expert evidence in family cases, but claimed that stricter regulation was ultimately for Parliament to take action on.

I commend my hon. Friend the Member for Coventry North West on bringing this matter before the House, and I am aware that she has made other representations to the Ministry of Justice on the matter, to which the Minister has responded, claiming:

“It is a matter for the judiciary to determine which experts may be instructed to provide evidence in family law proceedings.”

This impasse is totally unacceptable. There is a potentially high risk to already vulnerable children in this area. Loud alarm bells are being sounded, and the Government should be taking action now to investigate. Instead, they are once again demonstrating the dangerous inaction and lack of forward planning that have become their hallmark.

On the other hand, Labour wholeheartedly supports the calls for an urgent inquiry into the use of unregulated psychological experts in the family courts made by the Victims’ Commissioner for London, Claire Waxman, alongside lawyers, academics and charity leaders. My colleagues, the shadow Minister for victims and youth justice, my hon. Friend the Member for Cardiff North (Anna McMorrin), and the shadow Minister for domestic violence and safeguarding, my hon. Friend the Member for Birmingham, Yardley, have co-signed those representations to the Ministry of Justice.

In government, Labour will put Jade’s law on the statute book, ensuring that men who kill their partners will automatically have parental responsibility removed so they are not able to have a say in their children’s lives. That will prevent them from continuing to perpetuate controlling and coercive behaviour on their children and the victim’s family, who are likely to be caring for those children. Will the Minister introduce that law?

The Minister’s Department has been active in addressing concerns regarding post-separation abuse through the family courts in recent years, as evidenced by the publication of the harm report in 2020 and the Domestic Abuse Act, which received Royal Assent in 2021. Why is the Department stopping there when it was beginning to take some really positive steps forward? Will the Minister commit today to action that will help to begin to resolve the ongoing crisis in this area?

I now turn to the wider challenges faced by our family courts. As across the rest of the courts system, the backlog in family courts is unacceptably high and, as a result, vulnerable children are left in precarious situations for months on end. The most recent data shows that private children’s law cases are taking on average 45 weeks —nearly a year—to reach a final order. Cuts to legal aid, which others have raised today, in family cases have led to a huge increase in the number of litigants in person, who have been forced to represent themselves and end up costing the Government a significant amount because they take up much more of a judge’s sitting time than a represented individual normally would.

Back in November 2021, I was pleased to hear the Lord Chancellor and Secretary of State for Justice, when he appeared before the Justice Committee say that he was

“in the market for something quite drastic and bold”,

particularly in private law family cases, but I am sad to say that ambition appears to have disappeared. Instead, the backlog in the family court continues to rise, creating substantial anxiety and stress for families and, most importantly, for vulnerable children, at what is already an extremely difficult time in their lives.

I have spent a lot of time recently reflecting on how we can reduce the pain and suffering of going through the family court process. The debate we are having feels particularly timely, as I have met a number of family court practitioners, including at the north-east family drug and alcohol court, which I visited on Monday. I was hugely impressed by the work it is doing. I saw at first hand the value and benefit of a greater use of non-adversarial and problem-solving approaches in the family court.

I also had positive feedback regarding the pathfinder pilots in Dorset and north Wales, which are exploring a more inquisitorial approach in private family proceedings. An additional strength of the pathfinder model is that CAFCASS does substantially more up-front work in the process, which the court benefits from as it moves through the proceedings, but we have heard today about the resource challenges for CAFCASS that would currently prevent this positive work from being rolled out nationally.

Finally, many experts I speak to stress the importance of access to early legal advice in these cases, to ensure they end up in the most appropriate part of the system. One arm of that is ensuring that cases that do not need to go to court are kept out of it by early referral to mediation services and alternative dispute resolution. The other arm is ensuring that those cases that do need to go through the legal process are referred to it at as early a stage as possible.

These cases deal with challenging and highly emotive circumstances. Even the most straightforward family separation causes pain and anxiety. The impact these cases have, especially for the children involved in them, can last a lifetime. I hope the Minister will provide reassurances that the urgent issues raised today are being worked on by his Department, but also I hope that campaigners can take confidence in the fact that Labour takes these issues extremely seriously and fully supports the call for an urgent inquiry into the regulation of experts in the family courts.

--- Later in debate ---

[Mike Freer]

I will make some progress. I point Members to the recent Ofsted inspection in January this year. Ofsted said that CAFCASS was “highly effective”. The service has meant that the children at greatest risk continue to be promptly allocated a children’s guardian or family court adviser. I do not take issue with the problems that hon. Members have raised, but I wanted to put on record that the description of CAFCASS as a dystopian organisation getting everything wrong is simply unfair. There are many people there working in very difficult situations, doing a lot of good work for children.

I will move on to some of the things that we are doing to ensure that CAFCASS has capacity and funding. On additional funding and coping with the pandemic backlogs, we have ensured that the CAFCASS budget was increased by over £8.4 million, to a baseline of £140 million. We are also ensuring that the sitting days for both elements of the family court are increased.

I do not want to dwell on the particularly dry bits of what the family courts have to do. I appreciate that Members have raised specific questions, which I will do my best to answer. Where I cannot answer them, I will see that my colleague, Lord Bellamy, who covers this portfolio, provides more detailed answers. If hon. Members wish to meet Lord Bellamy to go through the issues in more depth, I am happy to facilitate that. I appreciate that I do not have the depth of knowledge that other Members or Lord Bellamy have.

We spend £813 million on civil legal aid. In the last couple of months, we have increased the amount by £30 million, just to support those people who need legal aid in a situation of domestic violence. It is not true to say that we are leaving victims of domestic violence without legal aid.

I recognise that long-term reform of the family court is needed, and that many of the issues are wide-ranging. Ensuring that vulnerable court users, such as those who have experienced domestic abuse, continue to be supported is complex. We want to continue to build on the response to the 2020 report on the risk of harm in private law proceedings. We have delivered on all the short-term commitments in the harm panel report. The Domestic Abuse Act 2021 prohibits the cross-examination of victims by perpetrators, and gives victims of domestic abuse automatic eligibility for special measures in the family courts.

In December 2022, the Family Procedure Rule Committee agreed rule and practice direction changes to ensure that independent domestic violence advisers and other specialist support services can accompany a party into court. Those changes are expected to come into force on 6 April. The Government continue to work closely with the domestic abuse sector to ensure that survivors’ voices remain central to family court reform. I look forward to the upcoming launch of the Domestic Abuse Commissioner’s monitoring and reporting pilot, which will ensure that we continue to understand the impact of family court proceedings on children and families.

I will touch on a couple of issues raised.

[Alex Cunningham]

Before the Minister continues, could we go back to the issue of legal aid? Not everybody in family court proceedings can qualify for legal aid, but will he conduct an assessment of the time that has been wasted in courts because litigants in person take up so much more of judges’ time? It would save time, and the Government money, if those people had access to legal aid.

[Mike Freer]

As always, I will give very careful consideration to any request from the hon. Gentleman, and I will report back to him on what we can do on that issue. He mentioned family mediation. Obviously, a big driver of the reform is the desire to keep families out of a court process that is not helpful, and away from an adversarial process. The investment of about £7.3 million in providing mediation vouchers has been a success; it is working.