Private law cases that return to court burden the family justice system

In November 2017, Cafcass conducted a small-scale study on the private family law cases that return to court. Given the 20 percent increase in private law applications over the last two years, Cafcass were eager to look into what was driving the increase and also whether some of these cases could be safely resolved out of court. More than 40,000 private law applications were received between 2016 and 2017, 30 percent of which were cases returning to the court. Cafcass analysed these cases, carrying out detailed studies on 100 with the aim of understanding what causes cases to be brought back to court and any patterns which may arise.

The study looked into the duration between proceedings and which types of cases were more likely to be brought back to court sooner. It was found that over half of the returning cases involved an application being made to the court within two years of the previous case being closed to Cafcass, and that cases which returned to court more times were also more likely to return to court within two years.

Looking at the circumstances behind cases returning to court, Cafcass found that returns did not always occur because of a breakdown in child arrangements and not all cases were repeats; just under half of the cases analysed as part of the study actually concerned a new issue which had not been addressed during previous proceedings.

Cafcass broadly divided the cases into four categories of their primary reason for being returned to court: conflicted adults, accounting for 39 percent of cases; safeguarding concerns raised by parties, 36 percent; a change in life circumstances, 16 percent; and the child’s wishes and feelings, 9 percent.

The return cases which were primarily driven by conflicted adults were found to be more likely to return to court within two years, and more likely to involve a repeated issue. Of those which returned within two years, 76 percent involved repeated issues, compared with those returned after two years where 76 percent involved new issues. Eighteen of the cases driven by conflicted adults were described as “stuck in conflict” and sixteen as “significantly conflicted”. It was found that in such cases the court was “effectively micromanaging family life” and seemingly small incidents could trigger a breakdown. Where the adults involved are unable to resolve the issue between them, they return to the court, and as such, these returns cannot always be seen as failures of the family justice system. In considering which cases could be diverted from court, Cafcass believe that this type of case could perhaps be handled through resolution work.

The study suggests two questions which could be asked to assist in considering whether and how conflict cases can be handled outside of court:

• Can the intervention address likely features of: a parental need for micromanagement of aspects of family life; a belief that the authority of the court is required to resolve the matter; a possibly unconscious investment in continuing the conflict; possible emotional harm to the child?
• Should diversion be provided at the point a parent seeks to make the application or is it possible to pre-empt applications by providing assistance towards the conclusion of proceedings? This could address common trigger issues found in this study (such as implementation of new arrangements, holidays abroad, new partners, changing work patters, and moving house).

For cases where safeguarding concerns have been raised by parties, Cafcass say that there is a strong argument that these types of return cases should be before the court in order to best address welfare matters. Other case types which could benefit from being diverted from court through alternative services are those involving changes in life circumstances, and children’s wishes and feelings. In these cases, alternative services such as child-inclusive mediation should help the child to express freely their wishes in a less formal setting.

The study found that returning cases, which account for 30 percent of private law cases in 2016-2017, involve a “substantial use of court and Cafcass resources”. Given the many variables implicated in, and the natural complexity of private family cases, it is recognised that there will be no simple policy solution for reducing this problem. Before definitive strategies arise to reduce the pressure placed on the family justice system, where issues could be resolved outside of the court, individuals should be assisted in exploring alternative options.