SLL’s Family law sub-group were delighted to meet for the first time with Labour’s Shadow Education Minister for Children and Families Policy Emma Lewell-Buck, MP for South Shields, at Parliament on Wednesday 12 September 2018.

We first discussed the ‘care crisis’ facing the family courts. Outgoing President of the Family Division, Sir James Munby, has highlighted yearly 20% rises in the number of new care cases. Lawyers at the meetings expected this pattern to continue.

What are the causes of the crisis? From the group’s recent experience, this is no symptom of over-cautious Local Authorities: if anything they were previously not cautious enough. Many in the group blamed cuts: particularly to early intervention. Emma stressed that she has and will continue pressing the incumbent Minister (Nahdim Zahawi MP) on the false economy of cutting preventative services.

The cots of the crisis are obvious: Court time is expensive, and pressures on Judges to put cases through quicker impact on parties’ confidence in the system. What’s more, contested care proceedings are very expensive. You can get things done through care proceedings but you shouldn’t need them, except in the most marginal or important cases.

The Group welcomed the suggestions of the Care Crisis Review. Emma explained that in debates last week the minister disappointingly would not commit to implementing any of the recommendations. Nonetheless, she is hopeful there is a growing cross-bench consensus and she will continue working towards a solution.

Part of that consensus is frustration at the impending closure of the Family Drug & Alcohol Courts’ national unit. For Emma, MPs across parties should have noticed the good work of FDAC in their constituency casework. The Group condemned the government’s lack of patience in the system: FDAC provided a valuable link between the judiciary and parents: and was genuinely problem-solving. For some, if anything was the answer to the care crisis, it was the FDAC.

Emma was keen to benefit from the front-line experience within the group and asked about the true effectiveness of CAFCASS and Independent Reviewing Officers? The Group were strongly against removing or diminishing the role of CAFCASS guardians in care proceedings. Lawyers recognised that there is a huge turnover of staff, even in individual cases, and their working environment appears strained and over-bureaucratic. The group emphasised the need for genuinely experienced and independent guardians, who parents can respect and who are not afraid or disincentivised to rule against the local authority. IROs again could be performing better but are recognised by practitioners as vital in ensuring accountability within the care system. Some of the group would even support giving them further powers.

Emma pointed to particularly unhelpful ‘mythbusting’ guides as an example of mismanagement: https://article39.org.uk/2018/09/04/article-39-and-others-urge-withdrawal-of-myth-busting-guidance-on-care-system/.

On Legal Aid, the Group lamented the injustice of the post-LASPO system and referenced Emma to our work with the Bach Commission for Access to Justice. While it is an unattractive argument to say the nastiest people should get free legal assistance, the flip side is cross-examination by litigants in person and parents fighting tooth and nail without the benefit of realistic advice from professionals. Some of the group gave examples of cases they had undertaken pro-bono, but parties should not have to rely on charity, but be guaranteed an accessible right to legal advice free at the point of need. On where to draw the line, Hannah suggested that the test in primate law should be where they are at risk of not having contact at all.

On Brexit, co-chair of the Family Group, Naomi Angell, provided Emma with an overview of the possible impact and with the October 2017 paper of the committee she sits on with FLBA, ICFL and Resolution. Her recommendations were certainty, reciprocity, continuity (including a role for the European Court of Justice). She also pointed Emma to the impressive work done in the House of Lords by Baroness Maeve Sherlock, earlier this year.

Risks include loss of information-sharing and inter-EU cooperation, difficulties enforcing contact orders and jurisdiction hopping. Although family law has barely entered the Brexit debate, could it lead to a Windrush style front-page scandal? The Group asked for Emma to press Keir Starmer’s office on raising this specific issue in their work.

The Family Group hope to work with Emma in the coming months to help formulate policy and combat misleading government statements like that above. If you would like to join the family group, please indicate your preference on your sign-up form or email administrator@societyoflabourlawyers.org.uk and you will be added to their mailing list.