That this House has considered the Children and Family Court Advisory and Support Service and family court reform.
It is a pleasure to serve under your chairship, Mrs Cummins.
Family breakdown is never easy. Disputes are inevitable and often bitter. Children are caught in the middle of a tug of war between parents. In those conflicts, the Children and Family Court Advisory and Support Service, or CAFCASS, plays a key role. Child arrangements orders, prohibited steps orders and a host of other key rulings in the family courts often hinge on the reports provided by CAFCASS and the assessments carried out by its workforce. CAFCASS is in desperate need of reform, and it requires funding to protect children subject to care proceedings.
The Criminal Justice and Courts Services Act 2000 stated clearly the role of CAFCASS. First and foremost, it has a duty to safeguard and promote the welfare of children affected by family courts proceedings, yet it is falling far short of the standards required. In 2020, the Ministry of Justice published a damning report on the performance of CAFCASS. The findings were shocking, including failures running deep into every area of the organisation’s work, poor handling of domestic abuse allegations, wilful disregard of children’s voices and an obsessive pro-contact culture that puts unfit parents’ demands ahead of children’s best interests. That was the Government’s own verdict.
The reality is that that is simply an exacerbation of a problem that has engulfed the family courts since 2010. The Government’s cruel decision to remove legal aid from the majority of such cases has led to ugly and disordered scenes in courtrooms nationwide, as parents are forced to represent themselves without sufficient support or understanding of how the system is supposed to function.
Diminishing access to legal aid has only caused further delays in the courts, and denies victims justice. To address the backlog, the Government should properly fund civil legal aid and restore legal aid for early advice for family cases, so cases can be resolved more efficiently.
There is often a financial disparity between parties. Sometimes, parties use the issue of parental alienation to drag things out longer and to add more expense to the disadvantaged party in those proceedings. Does my hon. Friend agree that it is time that CAFCASS, the courts and judges were better trained in the issue of parental alienation and how it is used as a tactic to prevent court cases dragging on longer than they need to?
I absolutely agree, and parental alienation is an issue I will come to later in my speech. Reform is desperately needed.
Will the Minister outline what steps the Ministry of Justice is taking to increase the funding of legal aid? Will he update us on when we can expect the civil legal aid review?
The hon. Lady is right to bring this debate forward and to highlight the disadvantages of legal aid. Does she agree that when it comes to ensuring that every person in this great United Kingdom of Great Britain and Northern Ireland has the same opportunity of representation, the Government must step in to support those people who do not have money and cannot pay for the legal representation to which they are entitled? That should happen not only in England and Wales; the Minister should endeavour to have discussions with the devolved Administrations in Northern Ireland and Scotland so that people there have the same legal aid opportunities.
Absolutely. Proper legal representation needs to be available to everyone in the United Kingdom.
The large backlogs in the family court are creating delays and uncertainty for families and, most alarmingly of all, for vulnerable children. No child should have to witness this sort of conflict, anger and grief played out before a judge. The children caught up in these cases are now suffering as a result of constant failings in leadership from Ministers in this Government.
The most damning aspect of our family court system is false accusations of parental alienation. Too often, as my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous) says, a wealthy parent can, in effect, purchase custody of a child through certain legal loopholes. Denounced by the United Nations as a “regressive pseudo-theory”, parental alienation is an argument whereby one parent claims that another is making false abuse claims or is otherwise manipulating the child’s view out of hostility towards their ex-partner. The concept has little to no evidence to support it, but is none the less often accepted, resulting in children being placed with an abusive parent.
I pay tribute to the team at the University of Manchester, whose recent research has revealed the dark and rotten roots of that commonly employed tactic. It was invented 40 years ago as a means of aiding perpetrators to cover up the physical and sexual violence to which they had subjected their spouses and children, yet in Britain the strategy is being given free rein in our family courts. Not only are utterly unqualified individuals being allowed to testify as supposed experts in such cases, but CAFCASS has overseen the rise in such false allegations.
I have spoken with many constituents about their treatment by the family courts. One case summarises everything that is wrong with CAFCASS: the dangers of parental alienation and the risks posed by a blind insistence on contact even when a parent is evidently unfit to have any responsibility over a child. My constituent married a foreign national a decade ago. They had one son, who is now eight years old. Until recently, he was being brought up by his mother in the comfort of a loving, caring home alongside his extended family. Having had the courage to escape the sexual and physical domestic abuse inflicted by her ex-husband, my constituent was granted sole custody of her son. Occasional contact with the father was enforced by the court and complied with by my constituent, despite the clear distress that those sessions caused to the child, yet, when the arrangements broke down, the father was able to launch false alienation proceedings against his ex-wife to remove the boy from her custody. That was supported every step of the way by CAFCASS. He has now succeeded in depriving my constituent of her only child, despite the rigorous investigations by social services at Coventry City Council that concluded that she was an exemplary mother.
The interests of the child should be paramount—that was written into the Children Act 1989, many years ago—but there seems to have been a clear failure of that policy. Allegations of parental alienation often cause great distress not just for the parent, but for the child at the centre of the case. Does my hon. Friend agree that in cases such as the one she describes, CAFCASS needs to return to focusing on the paramount interests of the child?
Absolutely. The role of CAFCASS is to protect the child during family proceedings, but it seems to be failing in that role.
The tragedy is being multiplied in the thousands nationwide. A self-reported survey suggests that allegations of parental alienation are made in up to 70% of family court cases in England and Wales. The scandal has been allowed to go on for far too long. It is time for CAFCASS and the family courts to be held accountable. When will the Government legislate to bar unqualified so-called experts from the family courts? When will guidance be published for judges on the admissibility of family alienation allegations as evidence in these cases?
I cannot thank the hon. Member enough for securing the debate and I am only sorry that I cannot stay to give a speech myself. I had a long career in family law. I have acted for mums and dads, husbands and wives, and families where domestic abuse has ripped them apart, and I have seen courts used not only to help people, but to continue the abuse and control of some. What the hon. Member’s constituents would have experienced, no doubt, is that a lot of the delay plays into the hands of parents who want to use the courts, in particular if they have the child living with them at the time. One thing I have been campaigning for is to get the Ministry of Justice and the Government to focus on keeping cases out of court, especially where litigants are in person, where it is safe to do so. That will free up court time to deal with the more complex cases that she is talking about more quickly and urgently, so that we have the resource and proper space for CAFCASS and people such as that. Does she agree that that is important, and will she join me for a coffee to discuss it? I would love to get her on board.
The hon. Member speaks from her varied experience. Absolutely, I am more than happy to support her in her campaign and to have a cup of coffee to talk about it in further detail—[Interruption.] I am sure everyone in the Chamber would love to have a cup of coffee to talk about it as well.
I ask the Minister, why has CAFCASS remained largely unreformed almost three year after its shameful shortcomings were exposed for all to see? I wrote to the Ministry of Justice about my constituent’s case on 2 September 2020. It is a damning indictment that CAFCASS has failed to make any progress in the matter. Will the Minister therefore meet me to discuss the case further?
Until the promised reforms of CAFCASS are completed, until parents can be sure of proper representation and support in the courtroom, and until the family courts start to put the needs of children ahead of the vanity of wealthy individuals who can rely on expensive solicitors to exploit a broken and underfunded system, the tragedies will only multiply. Inaction is no longer an option—frankly, it never was.
I stand here to give a general primal scream on behalf of what I will say are thousands of cases that I have seen over the past seven years of victims of domestic abuse being, not to put too fine a point on it, abused by the family courts. We allow the system to go on largely in secret, shrouded in total secrecy, but it is opening up slightly now thanks to the efforts of some incredibly good investigative journalism and some incredibly brave victims of rape who allowed their cases to be the test cases to enable that transparency.
I cannot sit in front of another mother who has been beaten, raped, abused, coerced, and has had a court in our country take her children from her and given them to the man who raped, beat and abused her. It must be about five or six years ago that Women’s Aid produced a report called, “Nineteen Child Homicides”, which cites cases from the previous 10 years of 19 children murdered following the decision of a family court to place them with a violent and abusive father. I pay huge tribute to the families who were involved.
We are two years on from the harm review—it might be longer, but the covid years make it hard to remember how many years it has been; I am really only 39, because I do not count the covid years. Everyone working in this building was pleased to see the harm review, which came out of a very extensive piece of work by the Government. I take my hat off to them for doing it. However, it dodged one vital issue, which was raised by my hon. Friend the Member for Coventry North West (Taiwo Owatemi), to whom I am grateful for securing the debate: the issue of a pro-contact culture. We need fundamentally to undermine the idea that it is better for a child to have contact with both parents when one of them is abusive and violent. Often people will say to me, “These people aren’t necessarily abusive and violent towards the children”, but I think you are a bad father if you are abusive and violent towards the mother of your child. That is fundamental for me.
It is always important to listen to the hon. Member. One of the things that the president of the family division, Sir Andrew McFarlane, has done recently is open up the family courts for reporting pilots. That is an incredibly good step, because it will shine a light not only on what is going on with people having representation or not having representation, but on the experts who are being put forward. Even though there is work to be done, there is active effort from the top of the family division to make changes, and I hope she can see that.
I absolutely agree. Sir James Munby, in his final year as head of the family division, seemed to do a sort of swansong in which he said, “I am going to do something about this, recognising that the many brilliant legal minds who work in the family court know where the problems are.” In fact, it is not just victims I am representing and speaking for in this primal scream, but the hundreds of solicitors and judges who get in touch with me all the time to tell me about the terrible, broken problems in our family court system.
As McFarlane has laid out, the Government have to undertake a piece of work. The family court’s hands are tied, and it is for the Government—the ball is in their court—to say what they are going to do about unregulated experts. Members should bear in mind that I am a genuine expert on domestic abuse, with years and years of training, and I have been refused entry to family courts when I have sought to attend with victims—maybe I would get in if I did a milk round.
I am fairly certain that, in my time in this building, I will, alongside others, advance changes around domestic abuse. I feel confident about that, but I am starting to lose confidence that we will ever do enough to change the family courts. The hon. Member for Stroud (Siobhan Baillie) mentioned the pilots, which I am sure the Minister will address. They are just pilots at the moment, and they seem to be working well, but I think that they need to go further. There needs to be a change into the gladiatorial; there needs to be much more sense of ongoing inquiry throughout such cases.
Practice direction 12J, which states that there is no presumption of contact in cases of domestic abuse, is not worth the paper that it is written on because it is hardly ever used. If it is not being used in cases involving convicted rapists, we have to ask ourselves serious questions about whether the situation that we have at the moment is working.
It is an extra special pleasure to serve under your chairmanship this afternoon, Ms Cummins. I apologise to you and the House for arriving a few minutes late for this debate. Similarly, I apologise to my hon. Friend the Member for Coventry North West (Taiwo Owatemi), but I congratulate her on securing this important debate.
We have had a couple of powerful and persuasive speeches today that demonstrate the urgent need for further reform to the family justice system so that victims of abuse and the children at the centre of proceedings are given the protection from harm and risk of harm that they both need and deserve. My hon. Friend the Member for Birmingham, Yardley (Jess Phillips) spoke in her usual strong and blunt fashion in defence of the victims and the pleas for change. I do not know if my speech will add any additional value to what we have heard this afternoon, but I say to her that she should not lose confidence in the work she has championed in this place, because she needs to be doing it. I never thought I would manage to make my hon. Friend blush, but today I have succeeded.
It has been more than two years since the Ministry of Justice published the harm report, “Assessing risk of harm to children and parents in private law children cases”. The panel that wrote the report said that the extensive evidence submitted to it
“unveiled deep-seated and systemic problems with how the family courts identify, assess and manage risk to children and adults.”
While we of course welcome the changes brought in by the Domestic Abuse Act 2021, including the ban on cross-examination of victims of abuse by their perpetrators in the family and civil courts, it is clear that much more needs to be done.
Women’s Aid conducted research with specialist support services and survivors of abuse who have been involved in private child proceedings since the Government’s implementation plan for the harm report recommendations was published in 2020. It found that the optimism and hope that the publication of the report had brought have been destroyed by Government inaction and that lack of progress on the report’s findings has left them disillusioned and disappointed.
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Thanks to the deeply imbedded pro-contact culture of CAFCASS, long since identified but allowed to run unreformed for years, an eight-year-old boy is now in the clutches of a man who beat and sexually assaulted my constituent throughout their marriage. Despite mountains of evidence proving his unfitness to have custody of the child, everything was pushed and CAFCASS took his side, placing the blame on the boy’s mother.
What is perhaps most concerning is that despite the child’s distress, a litany of domestic abuse and the detailed reports compiled by Coventry City Council in support of my constituent’s parenting were all cast aside in the family courts. Deploying parental alienation allegations as his chief legal tactic, the boy’s father has now won sole custody, leaving my constituent utterly bereft.
In the vast majority of cases that I have handled in my lifetime, which are into the tens of thousands, mothers want fathers to have some form of contact with, or access to, their child. It is not until we come to the family courts that that becomes completely and utterly distorted, and women are cited for being insane. If I had been raped, beaten and abused for decades, I might take medication for anxiety. That has not happened to me, but I do take medication for anxiety, which could be used to remove a child from a mother. She will be called mad, hysterical or bad in a family court, even though social services might consider her to be an exemplary mother. In the family courts, fancy lawyers—as suggested by my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous), it is unfortunately still the case in the world we live in that men have more money than women—argue that women are mad.
We have allowed the situation to get to the point that any woman who tries to protect her child from a violent and abusive partner will be accused of parent alienation, which will work against her, so what we are now asking women to do is not safeguard their children in order to have access to them. There is a perverse incentive in the system that says, “If you and your children are being abused by this man, don’t mention it, because if you do, you will have parent alienation thrown at you.” There is absolutely no efficacy in what is being described as parent alienation.
On efficacy, I wish to point out that the people on whom we rely to make the judgment of parent alienation might as well be my milkman. That is literally how qualified they are. My milkman is a lovely fella who has six kids, and I would trust him more. We have specialists being paid huge amounts of taxpayers’ money, and operating in courts across our country—with a specific focus, it seems, on the south, which I presume is because people have more money to spend on such things down here—who are not psychologists. It might as well be my milkman, but they are saying, “Yes, we’re seeing signs of parent alienation”, and there is no regulation of this. The head of the family courts division has made it incredibly clear that it is up to the Government to deal with this issue. It is up to the Government to ensure that there is regulation of expert milkmen—I feel like I am taking milkmen down now, but they are perfectly good people—and expert witnesses in our family courts.
I just want to know from the Government when we can expect the outcome of the review into a pro-contact culture, and what the hold-up is. Why has a single point, on pro-contact culture, taken two years in the harms review? I have written to the Justice Secretary about this, and I have not yet heard back—I will cut him some slack, because it was only about two weeks ago, when McFarlane said it—but I also want to know when we will stop the use of unregulated experts in our family courts.
My point, which my hon. Friend the Member for Coventry North West began with, was about legal aid. Although the Government have—through an amendment that I moved initially—stopped the cross-examination of victims by perpetrators in the family court, I am afraid that the roll-out of advocates who are meant to be doing that work seems to be underfunded, and the work is an unattractive prospect, meaning that, from what I can tell—from the cases that I have seen and reviewed, and from the members of the Family Law Bar Association I speak to—the system is faltering at the moment.
I want to know and feel that there is some progress, and that I will not get another email— inevitably I will tomorrow, but maybe not next week or next year—about a mother who has been beaten and abused, has just had her child removed, and is allowed only supervised contact because some man has managed manipulate the systems in our country to make them feel as if she is mad and bad, and that he is an absolute angel. If I had a penny for every such case that I have seen, I could rebuild the family courts.
Women’s Aid also found that for many family court practitioners and professionals, their understanding of coercive and controlling behaviour and how perpetrators can and do use family court proceedings as another form of post-separation abuse is still insufficient. Survivors of domestic abuse are left feeling as if their experiences are ignored. The report from Women’s Aid notes that they feel that
“as mothers they are trapped within a continuum of blame, facing contradictory accusations both of failing to protect their children from the perpetrator, and failing to facilitate contact between child and perpetrator.”
The report also identifies serious concerns with parental alienation, and my hon. Friends the Members for Coventry North West and for Birmingham, Yardley have addressed that this afternoon. Indeed, several of the survivors Women’s Aid spoke to in its research have had their children removed from them as a result of accusations of so-called parental alienation or alienating behaviours when they raise concern about unsafe contact arrangements for their child.
As we have heard today, this apparent belief system has come under increased international scrutiny. Indeed, several countries now refuse to recognise it as a result of the risk it poses of placing a child with an abusive parent. Following a recent survey of more than 4,000 court users in England and Wales, it is estimated that allegations of parental alienation are made in nearly 70% of family court cases in England and Wales. That astonishing number underlines the necessity for immediate Government action. In these cases, unregulated, self-declared experts, such as milkmen, are invited to give evidence, even though they have little to nothing in the way of formal qualifications to do so. In fact, they may have a vested financial interest in diagnosing so-called alienation, which they may then be paid to treat. Only last month, Sir Andrew McFarlane, the president of the family division, commented in the case of Re C that there was a “need for rigour” and “clarity” when instructing psychologists to give expert evidence in family cases, but claimed that stricter regulation was ultimately for Parliament to take action on.
I commend my hon. Friend the Member for Coventry North West on bringing this matter before the House, and I am aware that she has made other representations to the Ministry of Justice on the matter, to which the Minister has responded, claiming:
“It is a matter for the judiciary to determine which experts may be instructed to provide evidence in family law proceedings.”
This impasse is totally unacceptable. There is a potentially high risk to already vulnerable children in this area. Loud alarm bells are being sounded, and the Government should be taking action now to investigate. Instead, they are once again demonstrating the dangerous inaction and lack of forward planning that have become their hallmark.
On the other hand, Labour wholeheartedly supports the calls for an urgent inquiry into the use of unregulated psychological experts in the family courts made by the Victims’ Commissioner for London, Claire Waxman, alongside lawyers, academics and charity leaders. My colleagues, the shadow Minister for victims and youth justice, my hon. Friend the Member for Cardiff North (Anna McMorrin), and the shadow Minister for domestic violence and safeguarding, my hon. Friend the Member for Birmingham, Yardley, have co-signed those representations to the Ministry of Justice.
In government, Labour will put Jade’s law on the statute book, ensuring that men who kill their partners will automatically have parental responsibility removed so they are not able to have a say in their children’s lives. That will prevent them from continuing to perpetuate controlling and coercive behaviour on their children and the victim’s family, who are likely to be caring for those children. Will the Minister introduce that law?
The Minister’s Department has been active in addressing concerns regarding post-separation abuse through the family courts in recent years, as evidenced by the publication of the harm report in 2020 and the Domestic Abuse Act, which received Royal Assent in 2021. Why is the Department stopping there when it was beginning to take some really positive steps forward? Will the Minister commit today to action that will help to begin to resolve the ongoing crisis in this area?
I now turn to the wider challenges faced by our family courts. As across the rest of the courts system, the backlog in family courts is unacceptably high and, as a result, vulnerable children are left in precarious situations for months on end. The most recent data shows that private children’s law cases are taking on average 45 weeks —nearly a year—to reach a final order. Cuts to legal aid, which others have raised today, in family cases have led to a huge increase in the number of litigants in person, who have been forced to represent themselves and end up costing the Government a significant amount because they take up much more of a judge’s sitting time than a represented individual normally would.
Back in November 2021, I was pleased to hear the Lord Chancellor and Secretary of State for Justice, when he appeared before the Justice Committee say that he was
“in the market for something quite drastic and bold”,
particularly in private law family cases, but I am sad to say that ambition appears to have disappeared. Instead, the backlog in the family court continues to rise, creating substantial anxiety and stress for families and, most importantly, for vulnerable children, at what is already an extremely difficult time in their lives.
I have spent a lot of time recently reflecting on how we can reduce the pain and suffering of going through the family court process. The debate we are having feels particularly timely, as I have met a number of family court practitioners, including at the north-east family drug and alcohol court, which I visited on Monday. I was hugely impressed by the work it is doing. I saw at first hand the value and benefit of a greater use of non-adversarial and problem-solving approaches in the family court.
I also had positive feedback regarding the pathfinder pilots in Dorset and north Wales, which are exploring a more inquisitorial approach in private family proceedings. An additional strength of the pathfinder model is that CAFCASS does substantially more up-front work in the process, which the court benefits from as it moves through the proceedings, but we have heard today about the resource challenges for CAFCASS that would currently prevent this positive work from being rolled out nationally.
Finally, many experts I speak to stress the importance of access to early legal advice in these cases, to ensure they end up in the most appropriate part of the system. One arm of that is ensuring that cases that do not need to go to court are kept out of it by early referral to mediation services and alternative dispute resolution. The other arm is ensuring that those cases that do need to go through the legal process are referred to it at as early a stage as possible.
These cases deal with challenging and highly emotive circumstances. Even the most straightforward family separation causes pain and anxiety. The impact these cases have, especially for the children involved in them, can last a lifetime. I hope the Minister will provide reassurances that the urgent issues raised today are being worked on by his Department, but also I hope that campaigners can take confidence in the fact that Labour takes these issues extremely seriously and fully supports the call for an urgent inquiry into the regulation of experts in the family courts.