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Private children cases are increasing year on year – why?

CAFCASS received 38% more new private law cases than the same month last year.

Figures recently published by CAFCASS show that they received a total of 4,659 new private law cases (involving 6,627 children) in March 2021 – 38% (or 1,282 cases) more than the same month last year, which of course was the start of the first COVID lockdown.

Even before COVID struck, Sir Andrew McFarlane, the President of the Family Division, said that Family Courts are having to ‘run up a down escalator’ to service increasing numbers of court cases.

We consider why has there been an increase and what should we be doing to reduce this number.

First of all, some background.

What is a private law case?

These are applications made under section 8 of the Children Act 1989 by individuals, usually parents, where there is a dispute between them about child arrangements.

Where someone seeks an order in respect of a child who is in the care of the local authority it will be considered a public law matter.

For more information about private children law proceedings, listen to our podcast series.  

Who is CAFCASS?

CAFCASS stands for “Children and Family Court Advisory and Support Service”. Many parents are unclear about the role of CAFCASS. For more information, see our insight on ‘The role of CAFCASS within private Children Act proceedings’. 

Why has there been an increase in litigants in person?

Since 2013 there has been an increase in private law demand, the year legal aid was abolished for all but a small number of family law cases. Parents are not receiving help in funding to access legal representation, resulting in many ‘going it alone’ without early advice or assistance to help them resolve their dispute.

Figures from CAFCASS in 2020 showed that 42% of cases before the courts involved parties who were not represented by a lawyer, compared with 18% before the legal aid cuts.

What is the impact?

As parents are not being given early and constructive legal advice and are not made aware of the alternatives available to them, many see court as the only option.

Parents having to represent themselves in court can result in individuals being challenged by their alleged abusers, and vulnerable children suffering delays in decisions being made about their futures as a result of an overcrowded and under resourced court system.

One judge has commented “Due to their lack of knowledge of the court systems we can only imagine the delays and costs litigants in person could bring to the court system especially when not equipped with the correct tools”.

Cuts at CAFCASS have also resulted in a reduction in staff, limiting their resources further.

How has COVID adversely affected an already difficult situation?

The guidance given by Sir Andrew McFarlane in ‘The Road Ahead’ in June 2020 highlighted that “The volume of work in the system is very high”.

He explained that “The Family Court was not coping with the pre-COVID workload and radical steps aimed at changing professional culture and working practices were about to be launched when the pandemic struck… The ability of the system to process cases is now compromised by the need to conduct most hearings remotely… Delay in determining a case is likely to prejudice the welfare of the child… If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.”

What can we do?

As practitioners we need to be encouraging families to consider family law mediation, for which some limited legal aid is still available and the recently announced Government’s family mediation voucher scheme.

We need to encourage families to consider other avenues of dispute resolution, such as mediation, collaborative law or family law arbitration. For more information, see our insight on non-court options and Alternative Dispute Resolution

It is important that court is only considered when all other options have been explored/and exhausted. Early legal input can be crucial. The child’s best interests must be of paramount concern, both before, during and after any court application.

We need to embrace alternative methods to reach an outcome, as this is the only way we can reduce this number of cases coming to court, and help prevent our courts and CAFCASS from continuing to struggle under such heavy demand. 

Courts should, unless in exceptional circumstances, be the last resort, rather than the first port of call.

If the content of this update raises any issues for you, or you would like to discuss, please liaise with Faye Kerrigan at faye.kerrigan@weightmans.com or Tania Derrett-Smith at tania.derrett-smith@weightmans.com.

Alternatively, learn more about our child law solicitors.

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