The 2018-22 Family Justice Review: an overview
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The PrLWG was the ‘Private Law Working Group’ that sat in Whitehall in the capacity of a Family Justice Review 2018-2021. It has produced three lengthy reports, considered below.
The 2018 FJR was set up in the wake of the incoming President of the Family Division’s endorsement of the EI reform project. The PrLWG’s brief included radical change.
Packed
The PrLWG’s membership included 11 officials from the agencies responsible for overlooking the Cafcass problem since 2001 (and before): seven officials from Cafcass and four from the Ministry of Justice. The problem was overlooked again. Cafcass’ deficit was not acknowledged. The EI proposal to make Cafcass’ deficit good was passed over.
The PrLWG deliberated on how to improve guidance for parents without being aware:
(i) that Cafcass had no guidance for parents on the issue in dispute
(ii) of the fully-developed and fully-approved project to resolve the problem
The suggestion that the rest of the PrLWG’s membership be informed of Cafcass’ deficit was rejected.
The PrLWG’s second report (para 173) lamented that no proposal with EI’s specific attributes had been submitted. Receipt of that proposal was acknowledged on 8 August 2019.
The entire review process was circular and without merit. Its empty sequellae already extend into 2023-26. They will run on into the next decade and beyond - as more nothings are heaped on nothing.
For instance, the thrust of the current 2023 sub-consultation - “Supporting earlier resolution of private family law arrangements” - is to support and empower mediation. But this undertaking is sterile - as long and no-one know what sort of arrangement is in the child’s best interests on what sort of facts. But no-one does know that - because there is no guidance - because no-one knows there is no guidance. So the consultation, and its successors, and their intended direction of travel, are doomed.
If the past is a guide to the future, the fact that there is no guidance - and no frame to make mediation work - will not be taken on board for decades. There is no prospect of constructive reviews or coherent thought under this dispensation.
The remainder of this section analyses the review process (such as it is) in some detail. It is an an analysis of vapour.
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Well thought through?
The PrLWG’s primary recommendation is the long-term construction of a national ‘Family Solutions’ service to distribute guidance on the issue in dispute in the continuing absence of advice to distribute. En route to this concept, which already seems to have fallen by the wayside, the PrLWG:
got the law back to front
(PrLWG3, para 7)
reported that ‘at least a quarter’ of Cafcass’ caseload was disputes on the level of contact
(PrLWG1, para 25)
agreed that Cafcass’ role was to ‘guard against’ providing these parents with guidance
(PrLWG1, para 25)
reported that the judiciary supported the idea of guidance
(PrLWG2, para 50)
ruled that the provision of guidance was undesirable, unethical and unlawful
ascertained that Cafcass’ standpoint flouted orthodox thinking
(PrLWG3, paras 6 et seq)
did not spot the difference
The Family Justice Review’s main thrust is, ‘longer term thinking starts now’. This Review will be the prelude to the next, where the problem overlooked since 1996 will be overlooked again.
Summary
The PrLWG’s reports and recommendations, based on the legal system as imagined not as-is, are misconceived.
The PrLWG overlooked the sector’s central and debilitating problem:
“Section 8 disputes include a ruling on the ‘best interests’ length and frequency of parenting time. But neither Cafcass nor any other agency has authoritative pre-court advice on this issue. This central omission has continued almost wholly unremarked since it was inherited by Cafcass from the Family Court Welfare Service in 2001… It has not been acknowledged by any Family Justice Review since the 1990s, the current review included.” Family Law Journal June 2020
The cardinal principle of useful change (to put something right, it helps to know what is wrong) went by the board.
Practical Outcome
In December 2020 the Family Justice Board responded to the PrLWG’s empty proposals with an Implementation Programme outlining the ‘Private Law Programme’ (PLP) for the 2020s. The PrLWG’s flagship ‘Family Solutions’ service is not mentioned. Otherwise, the PLP includes:
(i) a handful of ‘pilots’ to trial different approaches by the courts
- none of these pilots includes authoritative guidance on the issue in dispute
(ii) three new ‘tracks’ to process the incoming cases
- on the continued footing that the best outcomes for children in terms of contact are unknowable and of no import
The 3 new ‘Tracks’
The three new ‘tracks’ for incoming cases proposed by the Review may be the PrLWG’s primary legacy:
(i) Track One is reserved for incoming cases with no particular problems other than the duration of contact.
These disputes will continue to enter a zone with (i) no guidance for the parents on this issue and (ii) no view on desirable outcomes in terms of contact. We are where we were.
(ii) Track Two is for the more complex cases (often with safeguarding issues)
If and when these complications are resolved, they become cases Track One without complications other than the level of contact - for which Track One makes no or no proper provision.
(iii) Track Three: ‘returner’ cases
To a significant degree these disputes too are variants of the straightforward Track One cases: - either where no proper award was made for adequate contact last time round, i.e., thwarted Track One cases; or, where the applicant seeks enforcement, perhaps because no indication was forthcoming from the court system during the first year or so that contact was a serious issue.
In the absence of a discernible view on what order should be made, or why that might matter, these cases too are set for churning.
A proportion of the Track Two ‘safeguarding’ cases will be allegations generated or bigged up by the adversarial litigation process created by the lack of guidance.
Throughout the 200 pages of PrWLG1 and PrWLG2, neither the duration of contact nor the retention / loss of a significant relationship with the parent who leaves are mentioned as factors in child welfare.
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Accidental truths
PrLWG3 - the ‘What About Me?’ report prepared by the PrLWG’s Family Solutions (Sub)Group - defined the child’s best interests as the opposite of the definition imposed by Cafcass, the Courts’ experts. In theory, this is progress; in practice, the contradiction went unnoticed.
Family law rolls forward on the basis of mutually exclusive opposites.
It came about like this. After telling the judges that this was unlawful, the PrLWG invited its subgroup of mediators and other professionals to work up their views on how the Children Act should be interpreted. The Subgroup naturally assumed that Cafcass’ approach in these cases was in broad alignment with standard professional thinking. The reverse is true. Just about all the factors Cafcass has dismissed since 2001 are - according to the Subgroup - crucial Section 8 child-welfare priorities. From the summary of the PrLWG3 (below):
“A Clean Sweep
If the Subgroup is right, Cafcass has been off on a jaunt of its own since Day One. Here is Section 8 Family Law, as it should be:
the risk for a child is not seeing a parent (not as per Cafcass, seeing a parent)
the other parent is of value to the child
to lose a fit and willing parent for no good reason is a bad thing
children and parents should have a close relationship
to prevent a close relationship is a bad thing
the loss of the child-parent relationship is a child welfare issue
the retention of the child-parent relationship promotes a child’s wellbeing
family relationships should be protected
For perhaps the first time, the the basic driver of these disputes - namely, that in the wake of a separation one parent may try to eliminate or marginalise the other, without due cause - makes its appearance in writing.”
The Subgroup’s views, including the unobserved inversion of the law, and the unobserved reversal of the Cafcass approach, were welcomed as timely and impressive by the PrLWG’s eminent judicial chair. But, as the contradictions escaped notice, they cannot be set straight.
This is the legacy of the 2018-2021 review: an unidentified causative problem - that remains unaddressed - against a deepening background of crisis and unnoticed elementary contradictions. The first three PrLWG Reports are considered in more detail below.
PrLWG1: June 2019 - The initial review - to set up the Consultation.
PrLWG2: March 2020 - Recommendations after the Consultation
PrLWG3: November 2020 - What About Me? (the Family Solutions Subgroup)
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PrLWG1 2019: 91pp - the Initial Review
This initial review recites in withering detail how the private law Family Division is in crisis in almost every aspect of its operations: the courts are over-run by Section 8 disputes about contact. The report’s remedial objective is squarely set out by the first half of paragraph 9 at page 6: to deliver out-of-court resolutions where possible.
By the end of that same paragraph, PrLWG1 has gone off piste. Had Cafcass or the department put its hand up, and acknowledged the central deficit, the PrLWG’s priority would have switched, at the start:
from providing more guidance, via new forms of delivery in the long term,
to providing some guidance - for the first time - via existing channels - in the short term.
But the PrLWG did not know, or was not told, that the advisory services had no guidance on quantum. The Secretariat declined to pass this information on. The PrLWG’s schemes for new additional infrastructure (a new Family Courts Advisory Service) to distribute the existing guidance will have no guidance to distribute.
Paragraph 40 of PrLWG1 confirms the FSS’s pre-court advice will be that parent-and-child should generally have a ‘continued relationship’ - provided it is ‘safe’: i.e., possibly, but not necessarily, something more than a relationship continued by ‘indirect’ contact: that is, permission to send an occasional email.
This is to advise parents that anything can and should happen. That is not guidance. The PrLWG (comprised to a significant extent of Cafcass and its sponsors) accepted Cafcass’s submission that Cafcass should ‘guard against’ providing parents with guidance on best-interests levels of contact - which, Cafcass noted at Para 25, comprised ‘at least a quarter’ of its caseload.
PrLWG1 went out for Consultation in June 2019. The EI proposal was submitted in the usual way (receipt acknowledged 2 August 2019). The consultation ended on 30 September 2019. The results of the PrLWG’s deliberations were published as PrLWG2 in March 2020.
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PrLWG2 (March 2020) 101pp: The Time for Change - Response to the Consultation
The Cafcass point and its obvious remedy were missed. Page 5 of PrLWG2 confirmed that the PrLWG1 Consultation supported the ambitious objective of a national ‘Family Support Service’. Much of the report is devoted to the FSS’s manifold benign objectives; how the FSS might be structured and administered; and so on.
Everything the PrLWG envisages is undeliverable. Not only is there no clear framework and no consistent guidance or advice on outcomes, Paragraph 50 of PrLWG2 prohibits their development (Para 50 is the reverse of persuasive).
Muddying the Waters
Other points in PrLWG include:
(i) The EI submission, to deliver the PrLWG’s objectives in the here-and-now on the ground, was not mentioned and was not considered. Its existence was denied. Paragraph 173 of PrLWG2 states: “We have earnestly and anxiously looked for some ‘quick fixes’ to resolve, or at least relieve, the current and immediate pressures in [the] family court … no consultee offered us any clear, easily-deliverable quick fixes”… “to our regret we have not identified any clear ‘quick fix’ solutions which are necessarily going to offer any reprieve, or create immediate system change”
(ii) Annexe A of PrLWG2 exhibits specimen advice for parents of the kind it proposed to distribute: it goes in opposite directions simultaneously. The ideas are:
a child may say he/she has a right to ‘see’ both parents
‘time with’ contact should be arranged if it is safe
there should be child-parent involvement if it is safe
how much involvement depends on the individual child.
This takes away with one hand what it gives with the other. Nothing is revealed.
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PrLWG2 leaves the family law system on hold until the eventual advent of the inoperable FSS.
Minimal respite from more-of-the-same, during the intervening years, is in theory offered by a string of Paragraph 175 pilots (EI not included). These projects are built around vanishingly small premises, e.g., pilots to think more about the nature of application, or for more mediation or enhanced parent education, or pilots to review the wording of standard online forms, or pilots that provide the opportunity to talk to therapists, and so on. They are run by Cafcass and the Ministry of Justice. They fall at the usual fence: the absence of guidance.
PrLWG2 heralds itself as ‘radical’ under a banner of ‘The Time for Change - The Need for Change - the Case for Change.’
The main idea is: “longer term thinking starts now”:
In addition, the PrLWG hoped to take things forward by setting up a ‘Family Solutions Subgroup’
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PrLWG 3: 164 pp October 2020 ‘What about Me’ -
Report of the ‘Family Solutions Subgroup’
This report is a first ‘blue-skies’ step on the way to the ideas and initiatives that might eventually populate a Family Solutions Service, should it happen.
The 21-member FS Subgroup had two practising lawyers; two Cafcass representatives and one from the Ministry of Justice (cf the eleven on the PrLWG itself); and many mediators and others devoted to out-of-court resolutions. Both the downfall and the good intentions of the Subgroup are plain.
The Subgroup’s report is squarely based on what it wrongly thought the law was. Its views on what should be done are point by point, idea by idea, the opposite of what Cafcass does do. If the Subgroup is right, Cafcass has been off on a jaunt of its own since Day One. Here is Family Law, as it should be:
the risk is losing a parent (not as per Cafcass, seeing a parent)
the other parent is of value to the child
to lose a fit and willing parent for no good reason is a bad thing
children and parents should have a close relationship
to prevent a close relationship is a bad thing
the loss of the child-parent relationship is a child welfare issue
the retention of the child-parent relationship promotes a child’s wellbeing
family relationships should be protected
the objective is to promote co-parenting
a real risk to the child is that in the wake of separation one parent may try to eliminate or marginalise the other for no good reason