Is the Public Law Family Justice System Failing Those It Is Supposed to Serve?
Originally published in Family Law Week; also on Exchange Chambers, August 2021.
My aim and hope in writing this article is to provoke thinking and discussion amongst practitioners engaged — and others interested — in the work of the public law family system. This article is based on 20-plus years at the Bar dedicated to family work, and largely relies on direct personal experience as well as observations gathered from years of conversations with other professionals.
Having served the public in this way for 20 years, in 2011 I took a sabbatical that morphed into an eight-year sojourn overseas. The lure of this noble profession, however, saw me return to practice in the summer of 2019. The frustrations and questions raised in this article are borne out of these decades of experience and a growing imperative that I cannot stand by and say nothing.
The Purpose of the Public Law Family Justice System
In public law children proceedings the Family Court acts as the gatekeeper and adjudicator of the local authority’s application — determining whether the interference or proposed interference in the life of the family is lawful and justified. As Lady Hale said in her dissenting judgment in Re B [2013] UKSC 33, paragraph 204: “… the courts have the duty to assess the proportionality of the proposed interference for themselves.”
District Judge Crichton, when formulating the idea of Family Drug and Alcohol Courts (FDAC), asked: “What is it that family courts are there to do? Just take away children? Or are we there to provide part of the whole construct of support around families to try to enable children to remain within their families?”
I respectfully echo his words and suggest that too often the current system can seem to exist simply to take children away, rather than to work to enable them to remain within their families. In my view, we need to rethink the public law family justice system as a whole, using the FDAC model as a useful template.
After 20-plus years at the coal face of care proceedings, I find myself questioning the very purpose of the system; whether the test for “good enough parenting” is unrealistically high; the insufficiency of resources; whether the 26-week timescale is achievable; and whether we have become so risk-averse that we have lost sight of what “necessary and proportionate” truly means.
As lawyers, we have a duty to speak when the system we serve appears to be failing the very children and families it exists to protect.