(1 week, 3 days ago)
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Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
It is a sad reality of life that marriages fail. It can happen for a variety of reasons, and I do not seek to provide a critique on the underlying causes in today’s debate. However, one of the tragic consequences of divorce is the disruption and pain that it causes to children.
It is evident that an amicable relationship between parents would enable arrangements in respect of where a child resides following a divorce to be made without the intervention of the courts, avoiding much additional heartache and the adversarial nature of contested hearings; but such contested hearings cannot be avoided in each and every case. While it may be the intention of the system to protect the privacy of individuals and families during these hearings, the reality is an increasingly inefficient and, at times, unresponsive system that fails to place the emotional and psychological needs of the parties at its centre. The flaws in the present system are regrettably clear for all to see, and in failing to address them, parties are left with a system that undermines the very values that it seeks to uphold—values such as fairness and natural justice, with the wellbeing of children at their core.
This is such a vast topic that it would be inconceivable to address all the issues in the course of an Adjournment debate, and I will therefore focus on the constitution of those on the bench who hear child arrangement order cases. The reason is simple: the anchor point in all family law cases involving a child should always be that child’s best interests, and the creation of an outcome that supports and promotes the child’s safety and emotional and psychological wellbeing and protects his or her future prospects.
It is almost inevitable that each and every Member of this House will have had experience of child arrangement orders in some way, shape or form, whether through constituency casework, personal experience or family and friends, because such cases are sadly far from rare.
If you will indulge me, Madam Deputy Speaker, I will tell the story of one such case, which I suspect will resonate with many up and down the country, because it is sadly an all-too-familiar experience. This is the story of a young child who, by virtue of their age, cannot fully articulate their wants or desires, whose loyalty is split in two, who does not want to be seen to betray either parent, who is already dealing with their world being turned upside down and whose future is decided in a sterile magistrates court, often as a mere timetabling exercise. That child now faces birthdays, Christmas and Easter all split in half, with weeks cut in two and weekends alternating between one household and another, leaving them with no sense of oikophilia—the love of home. This is a child who feels different from their classmates because they are forced to go to school with their overnight bag; a child who constantly lives with the anxiety of turning up to school without their sports kit because it is at the other parent’s house; a child who feels nomadic, often confused and invariably distressed.
The scale of the problem can be seen starkly in the figures from the Children and Family Court Advisory and Support Service. As of 31 August last year, there were 16,671 open private law children’s cases involving 25,670 children. In the first quarter of 2024, the average time for such cases to reach a final order was some 44 weeks. During that period, children are left with uncertainty.
Magistrates have formed an integral element of the England and Wales legal system since the 12th century and the reign of Richard I, who appointed the first keepers of the peace. Almost 200 years later, pursuant to the Justices of the Peace Act 1361, the term “justice of the peace” was formally introduced. I do not propose reform of the role of magistrates lightly. However, I have reached the view that there is an overwhelming policy argument for doing so.
I am not for one moment suggesting that magistrates do not have an important role to play in the justice system; self-evidently, that would be a fallacy. However, I am increasingly convinced that the nature and focus of their work should be reconsidered, and in the case of child arrangement orders, it is my overwhelming view that the magistrates court should no longer play a role. The reason for mounting this argument is simple: there is an inequality in our legal system when it comes to private law family cases. These are cases that decide the nature and degree of contact a child has with each parent, determine the long-term future of a child and, by their very nature, have a significant, lasting impact upon any child.
Presently in this country, private law children’s cases can be heard before a bench of three magistrates or a district judge with a family ticket. Magistrates are a lay bench who, well-meaning as they may be, are not required to hold any formal legal qualification. While magistrates undergo some specific training following their appointment, it is not more than a handful of days a year. In comparison, a district judge hearing such cases undergoes much more rigorous training and must have a law qualification as a prerequisite. The stakes in cases such as these could not be higher. This singular, most important decision, if misjudged, can set in motion a truly devastating series of events, thereby irreversibly damaging a child and their life chances.
Let us contrast that with the role of magistrates in the criminal courts. The maximum sentence that magistrates can hand down is 12 months. Sentences beyond that are remitted to the Crown court to be heard by a circuit judge. In comparison, a decision about a child’s domestic arrangements until adulthood are frequently made by individuals with no specialist knowledge or training in family law. Furthermore, in the absence of formal legal training, subconscious bias is likely to run higher among magistrates than among members of the judiciary.
We can also take note of the approach taken by other courts in England and Wales. Specialist judges preside over employment, immigration, business and property, and social entitlement cases. Even in cases where a panel of three hears the case, it is a legally qualified, specialist judge who sits in the chair.
Given the importance of such decisions to a child’s long-term prospects, the outdated practice of magistrates hearing private law children’s cases should, in my humble opinion, be abolished. It is an inefficient and unreliable system of dispensing justice in the modern world, and it runs the risk of reaching inconsistent decisions of varying and questionable quality. Far too often, one hears of cases simply being decided as a timetabling exercise, and of a child’s weekly diary being carved up without proper thought or consideration of the impact on that child. Removing the role of magistrates in private law family cases, and ensuring that all such cases are heard by a specialist family judge, would ensure greater consistency of decision making, applying a more judicious and impartial approach.
On this most consequential of issues, we should ensure that those who preside over family cases are not only appropriately legally trained but well versed in the emotional, psychological and social factors at play. There should be much greater focus on ensuring that decision makers are trained in childhood development, domestic abuse dynamics and trauma-informed practices. The system in England and Wales is virtually unique in permitting lay magistrates to determine such matters, with most jurisdictions across the world entrusting the decision to a suitably qualified judge. In more complex cases, we should consider the use of specialised panels, as deployed in other tribunals. Such panels could have a judge as chair and suitably qualified wing members, who may include experts in child psychology. By adopting this model, the panel can take a more holistic approach to decision making.
My ask of the Minister is very simple. If we aim to create a better future for our children, if we truly believe in progress and not merely maintaining the status quo, and if we are to be believed when we talk of improving life chances for generations to come, the Minister should commit to reforming this outdated and harmful system, and ensure that all child arrangement cases are appropriately considered by a qualified judge.
The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)
I congratulate the hon. Member for Solihull West and Shirley (Dr Shastri-Hurst) on securing this important debate, and I applaud the thoughtful and considered way that he has approached a very challenging area. I think we all want to mitigate the disruption and pain that family law hearings cause to children, and he is correct to say that we all want to have children’s best interests as the anchor point in everything we do. I applaud the way that he set out his concerns.
It is well known that family breakdowns are almost always challenging. At times, disputes are unavoidable and often intense, with children caught in the middle. The family court plays a crucial role in resolving such disputes. I want to clarify that magistrates who sit in the family court are formally referred to as “lay justices”. However, for the purposes of today’s debate, I will use the term “family magistrates”, as it is more widely recognised.
The hon. Member is well aware that the family justice system in England and Wales relies on the work that family magistrates do to ensure that the most vulnerable members of society, particularly children, are protected and that their best interests are prioritised. I welcome his words about the importance of magistrates in our justice system, even though he has concerns about the role that they play in this particular area.
Although family magistrates do not have formal legal qualifications, they undergo a rigorous selection and a comprehensive training process that is provided by the Judicial College, and it is worth noting that family magistrates were involved in family proceedings long before the inception of the family court in 2014. Before that, family magistrates in the civil and county courts would sit on family proceedings and make decisions about arrangements for children. There is a long history of that in our law.
Family magistrates are recruited from the community and bring a diverse range of impartial perspectives and experiences to the court. This diversity helps to ensure decisions are fair. It is crucial that we recognise and preserve their contribution to the family justice system for several compelling reasons, especially in the light of the arguments made by the hon. Gentleman in both his recent article and this debate, suggesting that family magistrates should no longer be able to make child arrangement orders. The House will know that these are family court orders that detail arrangements for a child, including where the child will live and how they will spend time with each parent. The hon. Gentleman has clearly spelled out some of the implications.
The Government appreciate the concerns raised by the hon. Gentleman regarding the training of magistrates. However, we believe the existing system has safeguards in place, which I will outline to offer reassurance not only to him but to everyone listening to this debate. I am talking about the training that magistrates receive, the role of the justices’ legal adviser, and the robust protocols the family court has for allocating and reallocating cases.
I can assure the hon. Gentleman that the quality of training provided to magistrates is of a high standard. To safeguard their independence from Government, the statutory responsibility for training family magistrates rests with the Lady Chief Justice, as set out in the Constitutional Reform Act 2005. These responsibilities are exercised through the Judicial College, which offers a comprehensive training programme to equip family magistrates with the necessary skills and knowledge to handle the intricacies of private law children’s cases effectively. This training ensures that family magistrates are prepared to make informed decisions that prioritise the welfare of the children involved. Further information on the college’s training programme can be found on the judiciary’s website.
When sitting in the family court, family magistrates are supported by the justices’ legal advisers, who are qualified to provide advice on the law and procedures that family magistrates must follow, and who are also subject to an ongoing family training requirement. All judges, including family magistrates who hear applications for child arrangement orders, are obligated by the Children Act 1989 to have the child’s welfare as their paramount consideration and must undergo extensive training. To be appointed as a family magistrate, each individual must undertake training on determining the best interests of the child, navigating the welfare checklists, and ways of communicating with people in court, particularly where there is high conflict.
Let me emphasise and underline the role of justices’ legal advisers in assisting family magistrates in these cases. A panel of family magistrates decides cases with the presence and involvement of the justices’ legal adviser. The recent case law, Derbyshire County Council v. Marsden, confirms that these advisers play
“an integral, and legally required, part of the decision making process.”
Justices’ legal advisers provide essential guidance and support to family magistrates, ensuring that decisions are made with a thorough understanding of the complexities of family law, and always prioritising the best interests of the children involved.
Nor are family magistrates operating in a vacuum. They rely on assessments carried out by trained professionals for arrangement orders, prohibited steps orders and other key rulings when making arrangements for children. This collaborative approach enhances the quality of the family court’s decisions in these very sensitive cases.
Family magistrates do not deal with the most complex cases in the family court. Established rules and guidance determine the appropriate level of judiciary based on a number of factors, including the complexity of the case. Cases involving certain complexities will be immediately allocated to other tiers of the judiciary—district judges, circuit judges and, at the most serious level, High Court judges—in accordance with the issued guidance. It is like a lift that the judiciary enter at the appropriate level.
The judiciary, including family magistrates, have an ongoing duty to keep allocation decisions under review, particularly if further information is received from the parties and the Children and Family Court Advisory and Support Service. The case can then be reallocated to a more appropriate level of judge depending on the complexity and the issues in the case, and that can happen in the course of proceedings. The system ensures that magistrates handle appropriate cases for which they are trained, while more complex cases are managed at a different level of the judiciary, depending on the issues in the case. The mechanism not only maintains the efficiency of the legal process, but ensures that justice is served appropriately.
Family magistrates also play an essential role in the effective functioning of our family justice system. The number of outstanding cases in the system has grown since 2018, and the average time taken for cases reached a high of 47 weeks in 2023 under the previous Government, which is similar to the data the hon. Member shared earlier. While we have taken steps to address the underlying issues, which means we are on track to reduce the outstanding caseload by more than 10%, there are still significant challenges facing the system. Family magistrates routinely deal with a number of cases about children. Removing that capacity from the system would fundamentally undermine the effective administration of justice, but more than that, the resultant delays in resolving cases would have a profound impact on the wellbeing of the children involved and on parents seeking to resolve their issues.
Furthermore, the Government remain committed to reforming private family law processes where appropriate. Just last week, the Government announced that our new pathfinder model of private family law proceedings will be extended to mid and west Wales in March and to West Yorkshire in June. It is a significant reimagining of private law proceedings, with dedicated support for domestic abuse survivors, up-front multi-agency information sharing and a greater emphasis on the voice of the child through the production of a child impact report. Those proceedings allow our judges, including family magistrates, to have a much richer understanding of a family’s circumstances from the outset and ensure that parties are fully supported by professionals.
It is clear that family magistrates are indispensable in hearing private law children’s cases. Their collaboration with justices’ legal advisers, the quality of their training, the mechanisms for allocating and reallocating difficult cases and their contribution in alleviating the burden on all our judges are all critical factors that contribute to a more efficient and effective legal system. By maintaining the involvement of family magistrates in those cases, we can ensure that the best interests of our children, which are what we are all focused on, are upheld and that justice is delivered in a timely and compassionate manner.
Question put and agreed to.