Reform of Private Family Law Hearings

Nicholas Dakin Excerpts

Thursday 13th February 2025 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)]

I congratulate the hon. Member for Solihull West and Shirley (Dr Shastri-Hurst) on securing this important debate, and I applaud the thoughtful and considered way that he has approached a very challenging area. I think we all want to mitigate the disruption and pain that family law hearings cause to children, and he is correct to say that we all want to have children’s best interests as the anchor point in everything we do. I applaud the way that he set out his concerns.

It is well known that family breakdowns are almost always challenging. At times, disputes are unavoidable and often intense, with children caught in the middle. The family court plays a crucial role in resolving such disputes. I want to clarify that magistrates who sit in the family court are formally referred to as “lay justices”. However, for the purposes of today’s debate, I will use the term “family magistrates”, as it is more widely recognised.

The hon. Member is well aware that the family justice system in England and Wales relies on the work that family magistrates do to ensure that the most vulnerable members of society, particularly children, are protected and that their best interests are prioritised. I welcome his words about the importance of magistrates in our justice system, even though he has concerns about the role that they play in this particular area.

Although family magistrates do not have formal legal qualifications, they undergo a rigorous selection and a comprehensive training process that is provided by the Judicial College, and it is worth noting that family magistrates were involved in family proceedings long before the inception of the family court in 2014. Before that, family magistrates in the civil and county courts would sit on family proceedings and make decisions about arrangements for children. There is a long history of that in our law.

Family magistrates are recruited from the community and bring a diverse range of impartial perspectives and experiences to the court. This diversity helps to ensure decisions are fair. It is crucial that we recognise and preserve their contribution to the family justice system for several compelling reasons, especially in the light of the arguments made by the hon. Gentleman in both his recent article and this debate, suggesting that family magistrates should no longer be able to make child arrangement orders. The House will know that these are family court orders that detail arrangements for a child, including where the child will live and how they will spend time with each parent. The hon. Gentleman has clearly spelled out some of the implications.

The Government appreciate the concerns raised by the hon. Gentleman regarding the training of magistrates. However, we believe the existing system has safeguards in place, which I will outline to offer reassurance not only to him but to everyone listening to this debate. I am talking about the training that magistrates receive, the role of the justices’ legal adviser, and the robust protocols the family court has for allocating and reallocating cases.

I can assure the hon. Gentleman that the quality of training provided to magistrates is of a high standard. To safeguard their independence from Government, the statutory responsibility for training family magistrates rests with the Lady Chief Justice, as set out in the Constitutional Reform Act 2005. These responsibilities are exercised through the Judicial College, which offers a comprehensive training programme to equip family magistrates with the necessary skills and knowledge to handle the intricacies of private law children’s cases effectively. This training ensures that family magistrates are prepared to make informed decisions that prioritise the welfare of the children involved. Further information on the college’s training programme can be found on the judiciary’s website.

When sitting in the family court, family magistrates are supported by the justices’ legal advisers, who are qualified to provide advice on the law and procedures that family magistrates must follow, and who are also subject to an ongoing family training requirement. All judges, including family magistrates who hear applications for child arrangement orders, are obligated by the Children Act 1989 to have the child’s welfare as their paramount consideration and must undergo extensive training. To be appointed as a family magistrate, each individual must undertake training on determining the best interests of the child, navigating the welfare checklists, and ways of communicating with people in court, particularly where there is high conflict.

Let me emphasise and underline the role of justices’ legal advisers in assisting family magistrates in these cases. A panel of family magistrates decides cases with the presence and involvement of the justices’ legal adviser. The recent case law, Derbyshire County Council v. Marsden, confirms that these advisers play

“an integral, and legally required, part of the decision making process.”

Justices’ legal advisers provide essential guidance and support to family magistrates, ensuring that decisions are made with a thorough understanding of the complexities of family law, and always prioritising the best interests of the children involved.

Nor are family magistrates operating in a vacuum. They rely on assessments carried out by trained professionals for arrangement orders, prohibited steps orders and other key rulings when making arrangements for children. This collaborative approach enhances the quality of the family court’s decisions in these very sensitive cases.

Family magistrates do not deal with the most complex cases in the family court. Established rules and guidance determine the appropriate level of judiciary based on a number of factors, including the complexity of the case. Cases involving certain complexities will be immediately allocated to other tiers of the judiciary—district judges, circuit judges and, at the most serious level, High Court judges—in accordance with the issued guidance. It is like a lift that the judiciary enter at the appropriate level.

The judiciary, including family magistrates, have an ongoing duty to keep allocation decisions under review, particularly if further information is received from the parties and the Children and Family Court Advisory and Support Service. The case can then be reallocated to a more appropriate level of judge depending on the complexity and the issues in the case, and that can happen in the course of proceedings. The system ensures that magistrates handle appropriate cases for which they are trained, while more complex cases are managed at a different level of the judiciary, depending on the issues in the case. The mechanism not only maintains the efficiency of the legal process, but ensures that justice is served appropriately.

Family magistrates also play an essential role in the effective functioning of our family justice system. The number of outstanding cases in the system has grown since 2018, and the average time taken for cases reached a high of 47 weeks in 2023 under the previous Government, which is similar to the data the hon. Member shared earlier. While we have taken steps to address the underlying issues, which means we are on track to reduce the outstanding caseload by more than 10%, there are still significant challenges facing the system. Family magistrates routinely deal with a number of cases about children. Removing that capacity from the system would fundamentally undermine the effective administration of justice, but more than that, the resultant delays in resolving cases would have a profound impact on the wellbeing of the children involved and on parents seeking to resolve their issues.

Furthermore, the Government remain committed to reforming private family law processes where appropriate. Just last week, the Government announced that our new pathfinder model of private family law proceedings will be extended to mid and west Wales in March and to West Yorkshire in June. It is a significant reimagining of private law proceedings, with dedicated support for domestic abuse survivors, up-front multi-agency information sharing and a greater emphasis on the voice of the child through the production of a child impact report. Those proceedings allow our judges, including family magistrates, to have a much richer understanding of a family’s circumstances from the outset and ensure that parties are fully supported by professionals.

It is clear that family magistrates are indispensable in hearing private law children’s cases. Their collaboration with justices’ legal advisers, the quality of their training, the mechanisms for allocating and reallocating difficult cases and their contribution in alleviating the burden on all our judges are all critical factors that contribute to a more efficient and effective legal system. By maintaining the involvement of family magistrates in those cases, we can ensure that the best interests of our children, which are what we are all focused on, are upheld and that justice is delivered in a timely and compassionate manner.

Question put and agreed to.