Private Law cases That Return to Court: A CAFCASS Study

28 / 12 / 2017

In November 2017, a CAFCASS study regarding private law cases that returned to Court was published.

The authors explain that “it was undertaken within the context of a 20% rise in private law applications over the past two years and a wish within CAFCASS and the wider family justice sector to understand what lies behind the rise and identify cases which may benefit from an innovative approach or being safely resolved out of Court”.

The authors went on to explain they wanted to look at the scale and patterns of the cases returning to Court.

The authors noted that there were some 40,599 private law applications received in the year 2016 to 2017 and 30% of those were returns to the Court.  They described that as “meaning at least one previous application had been made in respect of the eldest child”.  Some cases involved the first return and others more than that.

The study endeavoured to look at the reasons for cases returning to Court and it was found that some were where the arrangements had sadly broken down but others involved variations of the current arrangements and some involved new aspects that had not been dealt with or raised previously.

The most common reason, the study found, for cases returning to Court were conflicted adults.  The second most common reason was safeguarding concerns raised by parties.  There were also other reasons such as changes in the circumstances, which includes such instances as a child going to a new secondary school where the same cannot be agreed, or the relevant child’s wishes and feelings which have been known to change over time.

The authors suggest that in relation to the conflicted adult cases they would, arguably, be best considered for alternative dispute resolution, i.e. options for resolution outside of Court.  They have said, however, that if there are safeguarding concerns then that should arguably be dealt with by the Court, although it would be important to determine those cases that actually have substance behind the allegations of harm or those where they are simply raised and are found to be without substance – the latter was said to be frequently the case.

The authors have also suggested that where it is a case that it involves a change in circumstances or a change in the child’s wishes and feelings,  they could be explored outside of Court and with the latter they suggest “alternative services which allow the child to express freely his or her wishes and feelings, such as child-inclusive mediation”.