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.
