Philip Marshall QC, chair of the Family Law Bar Association has made some forceful remarks in his latest email to FLBA members, which I think merit emphasis. He is talking about the President of the Family Division’s 15th “View” in which he says ‘we face a clear and imminent crisis…for which we are ill-prepared and where there is no clear strategy to manage the crisis’.
I commented on the view here. Philip Marshall QC says this of the President’s. It needed saying.
…Such observations are unprecedented in my experience.
We must all take notice (a) because if the Family Court is unable to manage the current surge in care cases, we risk having some other system (e.g. tribunals) imposed upon us, and (b) because the very real challenges posed by this unprecedented increase in the number of new public law cases impacts upon the courts’ ability to process private law cases in a timely and appropriately specialised manner. And if the private law cases abandon the family courts in favour of privately funded alternatives, there is a real danger that we will indeed begin to see a two tier justice system dependent solely on the ability (or inability) to pay. That is something we cannot allow to happen.
Perhaps understandably, the President is constrained to acknowledge that at least in the short-term there is unlikely to be any increase in judicial resources. Everyone who uses the family courts on a daily basis – whether as judge, advocate or lay client – knows that the system is already massively stretched (I hesitate to say to near breaking point). I hope that doesn’t sound too defeatist? It is not intended to be. Rather it is an acknowledgement of the reality of the enormous challenge that we all face day in, day out simply to get cases heard. Delay is now endemic at all levels (as the recent Court of Appeal consultation made plain). This, perhaps, is particularly acute in family cases, in which there is an over-abundance of litigants in person, particularly at appeal court level.
And so our overlords and paymasters at the Ministry of Justice and at the Treasury need to take notice. I repeat: the family courts face a clear and imminent crisis which has to be addressed. So let me be bold, and I hope not too obviously naïve:
As Chairman of the Family Law Bar Association, I call on government to take notice, act now and inject urgently needed additional funds into the family justice system.
I don’t, of course, ignore the £700 million – or is it now £1 billion? – to be invested across the wider court estate to modernise and digitise procedures (including setting up the much heralded On-line Court). This is much welcomed, long overdue, and makes up for years of under-investment. And it probably (i.e. definitely) won’t be repeated any time soon. But what is actually needed is extra funding year-on-year, to ensure we have more specialised family judges, both nationally and locally, so cases can be processed properly, in something approaching a timely fashion.
And perhaps some public acknowledgement or even a response – i.e. any response – to the President’s statement would be a good start? I’m not aware that any has yet been forthcoming. [my emphasis]
The point of the President’s 15th View was the massive and inexplicable rise in applications. Children are being taken into care at an unprecedented and alarming rate. It is well known that putting children into care usually makes things worse in the long run and the best outcome for them is to be properly cared for by their own family.
It is much more efficient to invest in Social Services providing the right support to families rather than wasting money on care cases, some of which at least were not necessary before, but have somehow become “necessary” now. There is also a worrying rise in the number and size of companies offering fostering as a career. Clearly someone is making money out of the rise in care cases.
Predictably the FLBA thinks the solution is to throw money at the courts, who can then remove these poor children into care at an even greater rate, benefitting the FLBA, but not the children in question.
I don’t read it that way Brian. The FLBA’s reach is court proceedings – its members are barristers (court based advocates). I don’t think the fact that the FLBA has commented upon the desperate need to ensure the court system remains able to function in light of its current unprecedented workload should be taken as accepting the problem further upstream. It IS more efficient to invest earlier on. But unless and until the tide is stemmed (no sign of it yet) there is a risk that the court system will cease to be able to properly deal with the actual volume. The point of the President’s view is to address the reality of the situation facing the courts – but neither the FLBA nor the President has any power to sort out the problems at the early stages.
Comment at https://dbfamilylaw.wordpress.com/2016/10/08/thoughts-for-a-fair-family-court/; which ends with a plug for clarity
Typically the real problem is ignored……. The increase in the number of children taken for “risk” of events that may never happen………..
All bureaucracies try to expand and increase their influence.That is the nature of the beast and as long as judges sanction the mass removal of children from loving and law abiding parents to be given to strangers like Xmas presents the increases will continue.
Following the case of baby P a massive increase in the number of children taken for “emotional abuse” and mostly for “risk “of such abuse ,accompanied by a sharp drop in the proportion of children taken for physical abuse proved that Baby P was an excuse to take yet more children from parents and not any concern about physical harm to such children.
So ,it is up to the judges to stop confiscating children from parents who have done nothing wrong simply because someone somewhere thinks there is a future risk………….We are all at risk……..
Ian, emotional abuse is very real. The ability (duty) of the courts to protect children who are at risk of harm, whether that be physical, sexual or emotional, has existed and been used for many years. Part of the reason for the increase is no doubt that we understand emotional abuse much better than before, part of it no doubt due to Baby P. But the suggestion that removal for risk of emotional harm is in general terms unjustified is disingenuous and wrong – even if the courts get it wrong in some individual cases (as is inevitable in any system run by humans).
There we sharply disagree familoo ! Of course emotional abuse is very real and to be deplored ……. However “risk of emotional abuse ” is NOT real at all.
It is a ridiculous figment of the imagination of fevered social workers,guardians,and judges anxious to preserve ,and yes even expand the system by which they make their living !
A hired gun expert predicts future emotional abuse with all the fervour of a paid fanatic despite seeking the truth via crystal ball,tarot cards, tealeaves or more probably ,the easier route of simple psychobabble! When the hapless non expert parent denies the prophecy the judge compares qualifications of parent and expert and nearly always rules in favour of the hire hack expert !
No,familoo I confidently state that confiscating a baby at birth from a sane law abiding mother on the grounds of “risk of future emotional abuse” can never,never,be justified……..
Indeed we do disagree on many things. On pretty much everything you just said in fact. If a parent has behaved in such a way as to emotionally damage (let’s say) six of her previous children and nothing has demonstrably changed, you are telling me there is no RISK of that happening again with child number seven? Really? There may be cases where evidence of such risk is tenuous but you suggest something altogether different!
The sort of woman who has specifically emotionally abused 6 of her children in succession as you postulate is NOT the sort of person to fight desperately in court to keep her 7 th child !
Emotional abuse is a crime though a rare one,and usually involves one adult Partner emotionally abusing the other one.I have never come across a mother convicted of emotional abuse of even one child let alone six but would be interested to know if you have had a different experience familoo……..
No baby should ever be deprived of a loving mother because someone somewhere reckons there is some sort of risk in the future……..(Crystal balls……..)
Well there you go Ian. Many women in the family courts have had four, five, six children removed – and a significant part of the harm those older children have suffered is very often emotional. They do fight. And they keep getting pregnant. This is the basis of the PAUSE project and the FDAC. Those are not crystal ball cases, as you characterise them. The risk is real – but that is not to so say that we shouldn’t invest lots of effort into managing or reducing those risks to avoid removal.
I am surprised that someone as experienced as you thinks that emotional abuse is something that happens only between adult partners. Your minimisation of a very real phenomenon is quite concerning and I worry if you are telling vulnerable mothers that they should ignore or pooh pooh any concerns raised about risk of emotional harm – because that advice would endanger the prospects of those mothers keeping their children.
Lucy, I wrote that emotional abuse is a rare CRIME and convictions of women for this are extremely rare ! I asked and ask again if you have come across mothers CONVICTED of emotional abuse of their children;Anything short of conviction is subjective and a matter of social worker/guardian/psycho opinion.
Yes mothers have child after child taken away when someone deems them a risk purely because after one child taken all too often subsequent babies are all taken as a matter of routine.. None of the mothers who suffered that grisly fate that I have come across had been previously convicted of emotional abuse and very few had ever been convicted of anything at all !
Ian you are talking about the law as you wish it was. That ISN’T THE LAW as you well know. I appreciate you think the law should change but you really can’t go around operating on the basis that the law is that abuse doesn’t exist unless and until it is proved in a criminal court. Because the reality is that children are removed quite lawfully on the basis of proven risk in the civil courts and on the civil standard, and that proven harm can form the basis of a risk of harm in respect of future children. Parents need to know and understand that and work within those parameters.
This Stream began talking about domestic abuse and there the trouble is that the courts seem to make no real distinction between verbal abuse between parents ( screaming and shouting at each other) but no real harm and physical abuse resulting in injuries which is a serious matter and should result in children being taken if the injuries are both significant and proved non accidental.
Well yes I do talk about the law as I wish it was and regret that law abiding parents are targeted to lose their children to forced adoption or worse (secure units etc). I maintain there is no such thing as the ” proven risk” you mention since any such hypothesis is a logical prediction at best and a wild allegation at worst. In neither case can it justify taking a baby at birth.
You did mention as an example a mother who abused each of her six children in turn so should she keep the seventh? My answer would be no if she had been convicted of abuse in a criminal court but yes if she had not.
Finally let me quote Maggie Mellon,vice chair of the British Association of Social Workers
.”The policy imperative towards more and quicker forced adoption means we may well look back at this period in horror as we do now to the forcible removal of thousands of children to Australia in the 1930s, forties and fifties without their parents’ knowledge and consent. That was done because it was felt it was the right thing but now we think how on earth could we possibly have done that ….”
Wise words from a wise lady………………………..
I agree with what Maggie says too Ian, but that isn’t, with respect, incompatible with what I have said earlier.
I note that you appear to maintain the position that exposure to non physical domestic abuse is not harmful to children. Many would disagree with you on that score. You have a very narrow view of domestic abuse and its impact on children and it is one which most judges would disagree with. So if you are advising parents along the lines above (i.e. minimising the significance of verbal abuse as “no real harm” done) you are not helping them.
I don’t think this conversation is a good use of either of our time so propose to call it a day.