Family courts and care proceedings: Key policy developments

Derren Hayes
Thursday, June 27, 2024

There were 3,828 public law cases – where a local authority makes an application for an order to safeguarding the welfare of a child – starting in October to December 2023 (the most recent data), down 3% compared to the equivalent quarter in 2022. Care applications made up two-thirds of public law orders applied for in this period.

Family courts dealt with 15,603 public law cases in 2023 which involved 25,672 children and young people. Picture: William/Adobe Stock

Looking at annual trends, there were 15,603 public law cases started in 2023, down 5% from 16,384 in 2022. The levels are roughly the same as a decade earlier but 18% below the peak of around 19,000 seen between 2016-18.

The decline in cases seen since the turn of the decade has been mirrored in the number of applications made (-22%), orders applied for (-18%) and orders made (-7%), although the 26,946 orders issued in 2023 was the highest since the 27,284 in 2019.

The 15,603 cases starting in 2023 involved 25,672 children, the lowest level for 13 years.

Applications were down 6% from 2022, when there were 15,707 in total.

Due to “data quality issues” the most recent figures for case disposals relate to 2021. Case disposals refer to the time it takes for an application to be considered and a decision made on whether to grant an order.

In 2021, the average disposal duration was 44.4 weeks, the highest level since 2012. Just 23% of cases were disposed within the 26 weeks target set out under the Public Law Outline (PLO), again a nine-year low.

There is no doubt that delays to legal processes due to the pandemic had an impact on the family courts and has contributed to lengthening care proceedings however as children’s services leaders have pointed out, the trend was already in motion before 2020 (see ADCS box).

Ethnicity linked to outcomes

Analysis of Cafcass data shows that black and Asian children are less likely to receive legal orders during care proceedings than white or mixed-race children.

The 2023 analysis conducted by the Family Justice Data Partnership – a collaboration between Lancaster University and Swansea University, funded by the Nuffield Family Justice Observatory - found the proportion of no order decisions – where a judge believes that making no legal order would be more beneficial for a child undergoing care proceedings – is higher for black and Asian children than for children of white and mixed or multiple ethnic groups.

No orders made up 9% of decisions involving black children and 15% of those involving Asian children, compared with 4% and 5% of orders involving white and mixed-race children respectively.

Cases concerning black and Asian children also took longer on average to be concluded, the briefing paper finds. While more than 60% of all cases took longer than the 26-week PLO target, in those involving children from global majority ethnic groups more than 20% took longer than 52 weeks – compared with 17% for cases involving white children.

Black and Asian children are also, on average, two years older than their white counterparts at the time they first enter care proceedings, and white children are also more likely to enter proceedings as babies.

The paper recommends further investigation into the reasons why black and Asian children receive less interventionist orders, why they are less likely to be placed for adoption than their white counterparts, and why this group of children are likely to enter care proceedings at an older age.

The rise of dol orders

Over the past five years, the numbers of children issued with deprivation of liberty (DoL) orders has risen exponentially.

Local authorities can apply for DoL orders when a place in a secure children’s home or mental health in-patient unit cannot be found for a child in care with significant welfare needs. Instead, the authority can apply to the High Court to use its powers under inherent jurisdiction to deprive the child of their liberty in an unregulated placement.

In July 2022, a National Deprivation of Liberty Court was established at the Royal Courts of Justice to handle applications for DoL orders to better understand the circumstances of children subject to them.

Latest figures from the Ministry of Justice shows 1,368 children were subject to DoL order applications in 2023. In comparison, there were 1,249 DoL applications dealt with by the national court in its first year of operation. Earlier data showed that in 2020/21 Cafcass was involved in 579 applications. This was a 462% increase from 2017/18 (103 applications).

Nuffield Family Justice Observatory, which evaluated data from the national court, said that in October and December 2023 there were more than five times the number of DoL applications compared to secure accommodation applications.

“Our research shows that these vulnerable children are often placed in inappropriate placements with severe restrictions on their daily lives, and without the care they desperately need, because there is nowhere else for them to go,” it states.

The Department for Education alongside NHS England has established a ‘Task and Finish Group’ made up of civil servants and experts from the care and family justice sectors, with the aim of improving the outcomes for young people subject to DoL orders, or at risk of being deprived of their liberty, because of their complex needs.

Through the initiative, the Children’s Commissioner for England is gathering the views of children subject to DoL orders and their families, and practitioners supporting them, to understand the key issues. A survey of local authorities, review of case files and production of a “user journey map” will also be undertaken by the expert group with a view to developing and piloting “evidence-based models of safe, therapeutic care and support”.

Improving the system

As the number of children coming into care has risen in the past decade, there has been increased focus on working with families earlier to try and prevent the need for care proceedings – this was a key driver behind the recommendations from the independent Care Review and subsequent government policy paper, Stable homes built on Love.

Initiatives include family group conferences (FGC), which bring together extended families, practitioners and voluntary agencies to work therapeutically with parents whose children are on the edge of care to navigate a way ahead without the need for proceedings. Charities like Daybreak and Family Rights Group are leading the way in running FGCs for local authorities with initial evidence suggesting the approach can reduce the risk of children entering care.

For children already subject to care proceedings, Cafcass has developed a relationship-based model of working that priortises the voice of children and families so that their views are considered when decisions are being made about their care. The approach has been well received, with the vast majority of parents and children feeling listened to.

Similarly, the Family Drug and Alcohol Court (FDAC) is working collaboratively with parents to support them to overcome addiction problems so they can keep a child or enable families to be reunited. Areas where FDACs operate report positive outcomes that are successfully reducing the use of care orders.

Meanwhile, a scheme in Sussex has seen family court judges, legal practitioners, children’s guardians and social workers come together to develop better ways of working through an approach called Quality Circle. Those involved say by improving working relationships, children and families involved in the family courts receive a better service.

Another improvement measure recently introduced has been the media being granted access to more than a dozen family courts as part of wider efforts to improve transparency of the legal system. Although early days, experts hope the increased scrutiny will improve the quality of practice and decisions made by the family court.

The family courts play a crucial role in the smooth running of the child welfare system. Without courts having enough resources to efficiently consider care applications and sufficient care placements to place children and young people into, the system will struggle causing delay and uncertainty for vulnerable families. The average public law case takes 10 months to process through the family court. Bringing this down will be a key challenge for policymakers and all agencies working in the family justice system over the coming year.

ADCS View: Court delays should come as no surprise

Andy Smith is ADCS president 2024/25 and strategic director of people services at Derby City Council

Just as children’s social care does not have the same profile as adult social care or the national health service, the family courts do not receive the same focus and attention as the criminal courts. The work of the family courts is just as critical, the stakes just as high, and the backlogs and delays are just as long as in the criminal courts.

In this backlog, there are tens of thousands of stories and tens of thousands of lives on hold. There are children and families who are separating or who are estranged and unable to agree custody or visitation arrangements, children who are so poorly and so traumatised we need to deprive them of their liberty to keep them safe and children who cannot safely live with their birth families. It is no exaggeration to say that at times this work is literally life and death.

Covid-19 clearly contributed to the place we find ourselves in, but delays were already a feature of the system before the pandemic hit. As funding fell so too did the number of judges and sitting days and even the number of court buildings has drastically reduced. So, the resulting delays should not be a surprise to anyone. Family courts were not prioritised for access to pop-up courts in university or council buildings during that period of successive lockdowns and enduring social distancing measures. On the upside, the lockdown experience turbocharged modernisation efforts in this space, with electronic bundles and virtual court hearings now commonplace after years of debate.

The bulk of backlogs and delays in the family courts relate to private law hearings but there are challenges in the public law space too. Over time, and if rolled out nationally, the reforms that the government set out in Stable homes built on love should result in more children being cared for in their extended family, where this is right for them, and fewer children entering the court arena. However, this shift will necessitate a huge culture change for local authorities, for the judiciary, Ofsted and for ministers too. The direction of travel feels right but it will require us all to hold our nerve and live with a degree of safe uncertainty in the holding of risk differently in the community. Renewed funding for support services to bolster and sustain families will be needed for success.

In recent years, some big reforms to children’s social care have been made in response to the small number of cases where things go very wrong and a child or young person suffers significant harm or even dies. There is always learning for us all, but the circumstances in individual cases, in individual tragedies are often quite unique.

Going forward, a more strategic, long-term approach, ideally underpinned by a national plan for childhood, is needed to making policy along with a long-term commitment to funding services for children and families and improving their outcomes.

Further reading

Family courts and care proceedings: Key policy developments

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