Do we really need an inquiry into the ‘secret family courts’?

Family Law|May 20th 2019

It is, it would appear at least for now, an academic question, after the Prime Minister rejected calls for it at Prime Minister’s Question Time on Wednesday, but it is still worth asking: do we really need a public inquiry into the so-called ‘secret family courts’?

First let’s just remind ourselves who asked for an inquiry, and why. On the 15th of May a group of 123 MPs from across the House of Commons wrote a letter to the Secretary of State for Justice David Gauke informing him that they are “campaigning for a simple amendment to the Children’s Act, which would remove the automatic parental rights of those who have fathered a child though rape.” They went on: “None of us want to believe that the rule of law and the justice system in this country, of which we are proud, can be used as a weapon to traumatise victims.” And then they got to their point:

“The lack of transparency in the family courts, while essential in maintaining the privacy of families and children, does not allow scrutiny and masks decisions that are made contrary to the interests of victims of domestic abuse, rape and violence, or their children. We are therefore calling for an independent inquiry into the treatment of victims of domestic abuse and violence in the family courts to establish the extent of the problem [i.e. of courts granting contact to parents who are known to be abusive] and if more fundamental reform is required to address the issue.”

The letter was referred to by the BBC’s Victoria Derbyshire current affairs programme as part of a special investigation into the family courts that it ran last week, and was mentioned in a story on the BBC News website, under the heading “Call for inquiry into abusive parents’ access to children”. The story also mentioned another eye-catching fact: “At least four children have been killed by a parent in the past five years after a family court granted access.”

Informed readers will spot three errors in the above. Two of them may be considered minor: it is the ‘Children Act’ not the ‘Children’s Act’, and the term ‘access’ has long since been replaced by the term ‘contact’. However, the third error could be rather more significant: there is no such thing as ‘parental rights’. This is important, as it is a very common misconception that parents have ‘rights’ in connection with their children, in particular a right to have contact with them. They do not. Whether or not a court orders that a parent should have contact with their child is determined solely by reference to what is best for the welfare of the child, not by any ‘rights’ of the parent. Yes, it is true that the law operates on the presumption that, unless the contrary is shown, involvement of the parent in the life of the child concerned will further the child’s welfare, but there is no ‘automatic’ right of any parent to have contact with their child.

OK, so do we really need an inquiry?

Obviously the central issue is the number of ‘errors’ that the courts are making (i.e. putting a child in danger by ordering contact with an abusive parent): are they enough to warrant the expense of an inquiry? Well, I think we need a little perspective. In the last five (complete) years the family courts have made orders involving 862,304 children. Four children to have been killed during that time by a parent granted contact is four too many, but it is an extremely tiny fraction (by my calculation 0.0005%) of the number of children that the courts deal with. Obviously, there may be other deaths that have not been recorded. There will also be other cases in which children have been injured or abused by a parent who has been granted contact. But realistically, how many are we talking about?

And anyway just what more can be done to reduce the number of errors? Yes, the system can be improved – it always can. For example, further efforts can be made to ensure judges are aware of the issues. But surely most judges are already fully aware? It is not as if the risk of abusive parents has just come to light. It has been known about for many years, during which time there have been many initiatives to address it. A further initiative in the form of a public inquiry may or may not help, but any improvement is only going to be marginal.

I’m not being complacent here. The ‘welfare’ test referred to above already includes the risk of the child suffering harm. The incidence of domestic abuse is already fully recognised as an indicator of possible risk, and is therefore considered very seriously by the courts, and fully taken into account when the court makes its decision on whether to order contact, and what type of contact to order.

Yes, mistakes are made (and hindsight is a wonderful thing), but judges dealing with contact disputes face an extremely difficult task. Remember, for example, that many ‘custodial’ parents will invent or exaggerate allegations of abuse in order to deny contact. Remember also that judges are under enormous pressure to ensure that non-custodial parents are not wrongly denied contact with their children. These things will not change as a result of any reforms to the system.

And lastly there is the cost of any inquiry. The Leveson Inquiry cost £5 million, and other inquiries have cost much more. Surely, that kind of money would be far better spent on providing the system with the resources it so desperately needs to do the job it has been tasked with doing. After all, the system is now under incredible pressure with increasing workloads, which are themselves likely to increase the incidence of error.

In short, I find myself in the unusual position of agreeing with the Prime Minister: there is no evidence to suggest that a public inquiry, with the expense that that entails, is necessary.

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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