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Private children cases are increasing year on year – why?

Cafcass received a total of 4,118 new private law cases (involving 6,064 children) in January 2020

Cafcass received a total of 4,118 new private law cases (involving 6,064 children) in January 2020 – almost 16 per cent (or 560 cases) higher than the same month the previous year.

Recent reports have shown in the ten months since the beginning of April 2019 that Cafcass have received 38,513 new private law cases, which is 2,376 cases (6.6 per cent) more than the same period the year before. Sir Andrew McFarlane said that family courts are having to ‘run up a down escalator’ to service this increase. But why has there been an increase and what should we be doing to reduce this number?

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.’

Figures from Cafcass show that 42% of cases now coming before the courts involve parties who are not represented by a lawyer, compared with 18% before the legal aid cuts.

The cuts have also resulted in some parents seeking the advice of ‘non-lawyers,’ perceiving this to be a cheaper option, but are parents being encouraged to go to court, rather than being encouraged to attend mediation or alternative methods of dispute resolution?

What is the impact?

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.

Some say that the family court system is facing meltdown.

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.

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

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.

We need to encourage families to consider other avenues of dispute resolution, such as collaborative law or family law arbitration.

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.

Court 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 Fiona Turner at fiona.turner@weightmans.com.

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