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.