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Family Law

The leading authority on all aspects of family law

Court of Protection Practice and Procedure Conference 2016

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13 NOV 2015

Researching Reform: Austerity is harming our children - the family justice system must protect them

Researching Reform: Austerity is harming our children - the family justice system must protect them
Less than a decade ago, family law was a quiet cornerstone of the justice system. Few people understood its purpose, less its power to effect positive change. Today a developing awareness of the importance child welfare plays in society and the public's growing fascination with how law can counter social injustice has highlighted the Family Court as a forum for activism. And, as relentless budget cuts continue to threaten our children's health and safety, the family justice system has begun to realise it has a greater part to play in protecting them than it ever imagined.

Family matters touch most of our lives and every corner of the justice system. From mental health to crime, family law connects and intertwines with day-to-day life and is in its own way a barometer for the wellness of society. That budget cuts to support services are linked to higher rates of crime and greater miscarriages of justice is well established, but looking at this in the context of children's well-being today is vital.

An entire body of work is emerging which clearly illustrates the already significant effects the current austerity measures are having on young people. A broad overview of these detailed findings is in some part reflected in the recent report produced by the Equality and Human Rights Commission (EHRC), which suggests that those under the age of 34 have been worst hit by the cuts and, as a result, are experiencing deep levels of poverty.

A striking correlation between the EHRC's report and the number of youths self-harming in custody may not be a coincidence. The government's latest figures on self-harm in prison tell us that, by far, the largest age group either committing suicide or engaging in non-fatal self-harm in prison are young people. Of the 25,775 incidents involving young people who have either tried to take their own lives, cut or burned themselves, 20,795 of those incidents involved young men and women aged between 18-39 - a demographic which coincides with those most badly hit by austerity. A combination of staff reductions in prison putting young men and women in custody at risk of harm and the impossible pressures the cuts have placed on them, are all too familiar gateways to poor mental health.

Unemployment, restricted access to education and dwindling services for vulnerable children are also contributing to an unprecedented rise in mental illness amongst boys and girls. The latest figures from charity Young Minds tells us that one in ten suicides in the UK today are attempted by children aged 15-24. We also know that 26% of young people in the UK have experienced suicidal thoughts, and among teenagers, rates of depression and anxiety have increased by 70%. To make matters worse, austerity is also reducing access to mental health support. The grim reality of austerity's impact on children has also been noted by the UK's Children's Commissioners, who unanimously concluded that the government is failing to protect the most vulnerable children in society.

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The current government's slash and burn attitude to child welfare services ultimately manifests inside the Family Court. Whilst cuts to resources are by no means the only obstacles the family justice system faces, they are contributing to the system's failings. Making this problem worse is the government's new initiative to raise the minimum wage, which many fear will leave the social are sector no choice but to cut numbers of staff further, leaving the Family court to deal with yet more austerity-induced side effects. Less staff means less support, which in turn means a whole plethora of things, including poor quality assessments at best, and, at worst, the deaths of countless children through negligence, lack of support and neglect.

However, the Family Court has started to fight back, and it has found an unlikely ally in the Human Rights Act. Type 'Human Rights Act' into the BAILII database today and over 150 entries within the Family Division alone appear - and these are just the cases that have been shared online. Initially unused and seemingly of little consequence to family law at its inception, the Human Rights Act, which incorporated the European Convention on Human Rights in 2000 has become one of the most important tools for holding government to account. It ensures that home-grown legislation and policies do not infringe upon families' fundamental rights, rights which protect basic freedoms surrounding personal life, privacy and self-expression - and the right to a fair hearing.

Whilst the Family Court cannot make law as such, it has become adept at treading a fine line between considering the effects of government policy and legislation, and its own powers to ensure that proceedings are carried out fairly. The cuts in legal aid, challenged for being a breach of human rights on more than one occasion, have had devastating consequences for children. Cases involving domestic violence and child abuse are often a feature of family law cases. Miscarriages of justice in this context could leave children in the hands of abusers, facing grave risk of harm.

The President of the Family Division, Sir James Munby, has used human rights-based arguments and the ability to publish certain family law judgments to counter austerity measures, and remind the government that it is not above the law. As a result, family law judgments, particularly those handed down by the court's most senior judges, have become increasingly political in nature. In the case of D (A Child) [2014] EWFC 39, Sir James Munby P took the view that parents denied legal aid in cases which involved applications by a local authority in relation to a child who may be taken into care was in itself a denial of justice and breached their right to a fair trial under Art 6 of the ECHR. He also astutely observed that any child in such proceedings would be prejudiced by virtue of his or her parents not having a fair trial, which in turn could distort the outcome of the proceedings and ultimately cause grave injustice to that child.

Whilst we do not yet know the full extent of how these cuts will impact children in the future, we do know that they are creating impossible hardships which must be opposed with the full force of whatever laws we have available to us. Our Family Courts has become more vocal in the last five years, but lone voices, however senior, are not enough - the entire sector must rally together and challenge the government's austerity measures. As an articulate and cerebral demographic, creating a movement to amplify the voice of the child is more than possible.
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