A week in family law: Cafcass, legal aid, Brexit and more

Family Law|October 19th 2018

It seems that the general downward trend in the number of new children cases is continuing. The latest figures for care applications and private law demand, for September 2018, have been published by Cafcass. In that month the service received a total of 1,065 new care applications. This figure is 3.8% lower than September 2017. This is the fourth consecutive month in which the total has been fewer than the preceding year. As to private law demand, Cafcass received a total of 3,507 new private law cases. This is 1.4% lower than September 2017. I’m sure this is very welcome news to all of those working within the family justice system. Let us hope that the crisis has passed, and that we will not after all witness the complete breakdown of the system that so many have been predicting.

Staying with Cafcass, the service has also published a new assessment framework to support its Family Court Advisers in assessing the harmful impact of a range of complex case factors on the children they work with in private law cases, as I reported here. As I explained, the Child Impact Assessment Framework is “a structured framework that sets out how children may experience parental separation and how this can be understood and assessed at Cafcass to inform better outcomes for children.” It brings together new and existing guidance and tools into four guides which Cafcass practitioners can use to assess the impact on the child of different case factors, including domestic abuse, harmful conflict, child refusal or resistance to spend time with one of their parents, which includes guidance on parental alienation, and other forms of harmful parenting, such as substance misuse or mental health difficulties. As I also said, it could be very useful for any parent involved in such a case to familiarise themselves with the relevant parts of the Framework.

The fathers’ rights charity Families Need Fathers has claimed that parents are ‘weaponising’ domestic violence orders, so that they can fraudulently claim legal aid. They point out that the number of non-molestation orders made by the courts has ‘rocketed’ over the five years since legal aid was abolished for most private law family matters, leaving it only available in cases where there is evidence of domestic abuse. With respect to the charity, I’m not sure that this is really news. For a start, the claim has been made before, and in any event the government was warned at the time that some would ‘manufacture’ domestic abuse allegations in order to get legal aid. The answer, of course, is to reverse the legal aid cuts.

In an unusual step, a family judge has appeared on the BBC to highlight the difficulties faced by litigants in person as a result of legal aid cuts. His Honour Judge Stephen Wildblood QC, the most senior family court judge at Bristol Civil Justice Centre, spoke as part of the BBC’s Inside Out West investigation into the pressures on the family court system. Asked if the justice system was broken, HHJ Wildblood responded that judges would not allow this to happen, but he added:

“Whether the overall process is fair, that people are coming to court on their own, is not really for me to say. That is for others to judge. If anyone watching this can imagine themselves in court faced with somebody that they once loved on the other side of the court, supported by a barrister, and they are on their own, then I think the point answers itself. It is very difficult indeed for them.”

Quite.

And finally, the House of Lords EU Justice Sub-Committee has warned that a “worrying level of complacency”, lack of clarity, and inadequate advice over the family justice system after Brexit will have a devastating knock-on effect on the UK family law courts, and ultimately children. The Committee recommends that the Withdrawal Agreement should make explicitly clear that it will encompass the rules that apply in international child abduction cases, and not be subject to the jurisdiction of individual countries. It states that the current plan for EU cooperation after Brexit is far too vague and much more detail is needed, particularly regarding family law, and that simply advising people to seek legal advice is inadequate. Chairman of the Committee Baroness Kennedy of the Shaws said:

“The government needs to wake up to the reality of what having no answers on family justice will mean after Brexit. The uncertainty ultimately leaves vulnerable children as the victims.”

Let’s hope the Government listens.

Have a good weekend.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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