Is the public law family justice system failing those it is supposed to serve?

August 6, 2021

This article was originally published in Family Law Week.

Celestine Greenwood

A personal observation by Exchange Chambers’ Celestine Greenwood.

My aim and hope in writing this article is to provoke thinking and discussion amongst practitioners engaged, and others interested, in the work of the public law family system.

I note that the recommendations of the Public Law Working Group[1] are being implemented and that the issues raised in this article may have better served that process if raised earlier. It is not my intention to undermine that process but rather to add to the discourse. I also note however that the interim report of The Independent Review of Children’s Social Care led by Josh MacAlister was issued on 17^th June[2] and that having made initial findings, the Review will now consider those findings further. Therefore, these observations, which are offered as a personal comment based on my professional experience rather than formal research, may be timely after all.

This article is based on 20-plus years at the Bar dedicated to family work and largely relies on direct personal experience as well as anecdotes gathered from years of conversations with other professionals. Having served the public in this way (and I do see what we do as ‘service’) for 20 years, in 2011 I took a sabbatical that morphed into an eight-year sojourn overseas. The lure of this noble profession, however, saw me return to practice in the summer of 2019. The frustrations and questions raised in this article are borne out of these decades of experience and a growing imperative that I cannot stand by and say nothing about issues that matter to me very deeply. I believe that some of the frustrations and questions I raise resonate with many of my colleagues and will resonate with the reader.

I wish to make clear that I do not intend, in any way, to demean the efforts of any engaged in the system – for the most part all concerned are dedicated and passionate about the work we do.

In my experience colleagues’ dedication and passion are invariably married with a superlative work ethic. Indeed, these three qualities ensured that the system moved almost seamlessly to remote working and has continued to grind on in spite of the pressures imposed by a seemingly ever-increasing workload and the impacts of remote working. All concerned, judges, court staff, CAFCASS officers, lawyers and advocates, social work professionals are to be commended and respected – this article is not intended to diminish their efforts one iota.

However, 20-plus years at the ‘coal face’ of the family Bar doing public law work (care cases) has engendered several concerns and frustrations that cause me to question the extent to which the current system adequately and properly serves our society. These include, but are not necessarily limited to, questioning: the very purpose of the Family Law System (and the child protection system as a whole); whether the test for “good enough parenting” that we apply in practice is unrealistically high; the insufficiency of resources for the children’s social care services and legal services; the availability and inconsistency of didactic and supportive intervention with families; whether the 26-week timescale implemented by the Public Law Outline[3] for the resolution of such cases is unrealistic; whether enough of those who comprise the system have become so risk averse that the system itself is now too risk averse; and ultimately, therefore, whether we have denuded the test for separating children from their family namely, it must be necessary and proportionate, to an unacceptable level.

The first and pivotal question to be asked in considering the fitness for purpose of the public law family system is to consider what society expects and needs the system to do.

The purpose of the public law family justice system

In public law children proceedings the Family Court acts as the gatekeeper and adjudicator of the local authority’s application by determining whether the interference or proposed interference in the life of the family is lawful and justified. As Lady Hale said in her dissenting judgment in Re B [2013] UKSC 33[4], paragraph 204, “… the courts have the duty to assess the proportionality of the proposed interference for themselves.” This requires the Court to scrutinise both the evidence advanced to satisfy the “threshold criteria” for the making of an order, namely whether the subject child “…is suffering or is likely to suffer, significant harm”[5] and if so, then to scrutinise the local authority’s plan for the child, the test being whether it is both necessary and proportionate, and in the child’s best interest (applying the checklist in section 1(3) of the Act). In short, the Court acts as a check and balance on the action of the State and its interference in the life of a family.

This adumbrates the role of the Court but does not necessarily address the key question: what Society wants the public law family justice system to do. District Judge Crichton, when formulating the idea of Family Drug and Alcohol Courts (FDAC) asked, “What is it that family courts are there to do? Just take away children? Or are we there to provide part of the whole construct of support around families to try to enable children to remain within their families?”[6] I respectfully echo his words and suggest that too often the current system can seem to exist simply to take children away rather work to enable them to remain within their families. In my view, we need to rethink the public law family justice system as a whole using the FDAC model as a useful template, in each case creating a team of professionals to provide the intensive treatment and support for parent(s) that is all too often needed as well as test capacity for change.

Good enough parenting and assessment

Whatever your view about the purpose of the system, we can probably agree that Society as a whole would generally expect parents to bear the responsibility for bringing up children they have brought into this world and would not expect that responsibility to be placed on others unless really necessary.

Accordingly, we do have to grapple with the issue of where the bar is set for the removal of children from parents. Generally, we refer to “good enough parenting.” Inherent in this must, I would argue, be an acceptance that childhood is replete with risk of harm and that suffering some harm is not always inimical to our best interests or to our development as well-rounded, contributing members of society. There is no such thing as a ‘perfect parent’ and perhaps the generality of risk of harm inherent in being parented is best encapsulated by Philip Larkin in his poem, infamous to adolescents required to read it for GCSE English, This Be The Verse[7].

Sir Andrew McFarlane, the President of the Family Division, reminded us all in a speech given on 19^th November 2019[8] of the wise and axiomatic words of judge Sir Alan Ward made in 1990 that in every case “there is a spectrum of abuse and an index of harm”. The issue becomes where on that spectrum we set the cutoff (a) for care proceedings and (b) for the removal of children from parents.

In considering what we should expect from adults in terms of their capacity as parents we will recall the advice given by Lord Templeman in Re KD (a minor ward)(termination of access) [1988] 1 AC 806[9] at page 812, “The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature.” This was subsequently emphasised by Sir Mark Hedley in the case of Re L (Care Threshold Conditions) [2006] EWCC 2, [2007] 1 FLR 2050[10] at paragraph 50, “…ssociety must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

My concern is that all too often the relatively low bar (of acceptable parenting) expostulated by Lord Templeman and Sir Mark Hedley is arguably improperly raised in individual cases. In many cases parents are subjected to psychological assessment and their scores in personality, psychopathology and intelligence testing are pored over by all concerned. It is perhaps ubiquitous that many parents who engage in this testing have their own experiences of harm and trauma, whether as children or as adults, and that these have either been influential in personality development or represent issues that would benefit from therapeutic input. Given the various harms to which many in society will probably have been exposed by the time they become a parent, to say nothing of the added difficulties that mental ill-health or low intellectual capacity may add, I wonder just how many of us would sail through a psychological assessment without any features contraindicative to being a good enough parent.

Whilst experts conducting such assessments are often asked to opine on the parent’s need for therapy and the timescales for the same, we are then often met with no available resources to provide the therapy identified as needed (or an indefinite waiting list to access the same) and/or with the assertion that the timescale for therapy is outside the child’s timescales. This begs the question ‘what is the child’s timescales in such cases especially when balanced against the risks of harm inherent in permanent separation?’ According to Department for Education statistics for the year ended March 2019, 10 per cent of looked after children had experienced three or more placements in the previous 12 months.[11] There have certainly been some cases in which I have been involved, where I have struggled to see how this experience better served the child than remaining at home with a parent undergoing psychotherapy and/or striving to come to terms with an abusive relationship, traumatic childhood, addiction, or other issues. Further, the outcomes for looked after children suggest that these children are not necessarily thriving; educationally they tend to fare less well than other children.[12]

Insufficiency of resources

This insufficiency of psychotherapeutic resources also extends, in some areas, to an insufficiency in resources amongst local authorities charged with protecting children and providing support to those ‘in need’ under section 17 of the Children Act 1989.

[1] Final Report issued in March 2021: https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf

[2] https://childrenssocialcare.independent-review.uk/wp-content/uploads/2021/06/case-for-change.pdf

[3] http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12a

[4] https://www.supremecourt.uk/cases/docs/uksc-2013-0022-judgment.pdf

[5] Children Act 1989, section 31: https://www.legislation.gov.uk/ukpga/1989/41/section/31

[6] https://fdac.org.uk/introduction/

[7] https://www.poetryfoundation.org/poems/48419/this-be-the-verse

[8] https://www.judiciary.uk/wp-content/uploads/2019/11/PSU-domestic-abuse-FINAL-1.pdf

[9] Lexis®Library: Document (lexisnexis.com)

[10] https://www.bailii.org/ew/cases/EWCC/Fam/2006/2.html

[11] https://learning.nspcc.org.uk/media/1622/statistics-briefing-looked-after-children.pdf

[12] DfE “Outcomes for children looked after by local authorities in England, 31 March 2019”: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/884758/CLA_Outcomes_Main_Text_2019.pdf