“When we talk about private law proceedings in the family courts, we often add the explainer ‘usually cases involving separating parents’. We know from our previous research that this is true in the majority of cases. But a significant minority of cases involve other family members or other adults. This report is the first in our Uncovering Private Law series to explore these ‘non-standard’ cases.
Non-standard cases may represent just 10% of private law cases – but they involve thousands of people. Indeed, such cases are equivalent in number to a third of the public law cases heard by the family court each year. Yet, to date, the private law reform agenda has focused squarely on separating parents, overlooking the needs of this wider group of families.
One feature of non-standard cases is their potential to represent an overlap between what we might typically see as private law and public law issues. These are cases where it appears children are being cared for by adults other than their parents and, although these are proceedings dealt with in the private law courts, there are potentially child protection concerns playing out in the background. These cases represent situations of great importance for families, whether in public or private law, but the fact they are being dealt with in the private law context carries some significant implications. For some, the private law route may represent a more positive response to family difficulties – families fostering their own answers to problems and seeking to formalise them without intervention from the state. For others, the backdrop may be less positive. The entitlements that come with public law proceedings (such as legal aid for parents and automatic appointment for a guardian to represent children) are not given to those in the private law system.
The recent Independent Review of Children’s Social Care, and the government’s response, have highlighted the importance of kinship care as a means of providing stability and care for children when their parents may be experiencing difficulties. We hope that this report will help promote useful discussions about the use of private law proceedings in this context, and help practitioners and policymakers to focus on what meeting the needs of these families might mean.”
-Lisa Harker, Director, Nuffield Family Justice Observatory
Private law children applications are made by parents and other family members where agreement cannot be reached about arrangements for a child’s upbringing, such as where they should live and/or who they should see. Previous reports in the Uncovering Private Family Law series established that around 90% of these – standard applications – are between two parents (Cusworth et al. 2020; Cusworth et al. 2021a). The focus of this report is on ‘the other 10%’ – referred to as ‘nonstandard’ applications – that involve one or more non-parents, such as grandparents, aunts and uncles, siblings, step parents, special guardians, foster carers, intended parents and putative fathers as applicant(s) and/or respondent(s). Parents can also be involved in such applications, either as the other party, or as a joint applicant or respondent with the non-parent.
The objectives of this study by the Family Justice Data Partnership – a collaboration between Lancaster University and Swansea University – were:
- to investigate the number and rates of private law applications involving nonparents, including regional variations
- to describe the characteristics of the adults and children involved, in relation to age, gender, area-level deprivation, and ethnicity
- to explore the presence of court-ordered reports and investigations that indicate welfare concerns and enable child participation
- to differentiate the types of applications coming through the courts.
About the data
This study used Cafcass and Cafcass Cymru anonymised, population-level administrative data, on all private law children applications issued in a private law case in England and Wales between 2017/18 and 2020/21. The 4-year combined cohorts consisted of 249,800 private law applications in England and 13,000 private law applications in Wales. Across the same period, we calculated the number of public law applications for a care or supervision order to be 61,800 in England and 3,900 in Wales.
The focus of this report is on non-standard private law applications
- those involving non-parent applicant(s) and/or respondent(s)
- a total of 22,000 in England and 1,200 in Wales over the 4-year period.
The relationships between the adults and children on an application are recorded in the administrative data, which allows us to distinguish between non-standard and standard applications. Relationship status in this study is based on the adult’s relationship to the youngest child (subject).
The analyses are descriptive and should be treated as preliminary.
How many non-standard applications were there?
- Between 2017/18 and 2020/21, there were around 5,500 non-standard private family law applications made each year in England and 300 in Wales. This equates to around a third of the volume of public law applications for a care or supervision order– 15,500 each year in England and 1,000 in Wales.
- Over the 4-year period, there were 8.0 non-standard applications per 10,000 families in the general population in England and 8.5 in Wales – but there was marked regional variation. The highest incidence rates were seen in Yorkshire and the Humber (10.4) and the North East (10.8), which were more than double the lowest rates, seen in London (4.7). This trend is in keeping with geographical variation in standard private law applications.
What applications were made?
- A diverse range of orders were applied for in non-standard applications including child arrangements, special guardianship, adoption, parental responsibility and parental orders (surrogacy).
- Most applications in England and Wales – 56% and 59% respectively – were for a child arrangements order (CAO). A greater proportion of CAO applications in England were for a ‘live with’ order compared to standard applications.
- A special guardianship order was applied for in 7.9% of applications in England and 6.0% Wales.
- 5.7% of applications in England and 2.3% in Wales were for a parental order (surrogacy).
- In Wales, 16% of applications were for adoption, primarily made by step-parents.
- 5.2% of applications in England and 2.2% in Wales were for a parental responsibility order.
Who were the non-parents involved?
- A diverse range of non-parents were involved, including grandparents and other relatives, step-parents, foster carers, special guardians and intended parents. Grandparents accounted for 58% of all non-parents involved in England and 63% in Wales.
- Around a quarter of non-parent applicants and respondents were aged over 60, and were mainly women.
- Applications disproportionately involved individuals living in the more deprived areas of England and Wales. This was to a greater extent than standard private law applications where there is already an over-representation of individuals living in the most deprived areas.
- Overall, adults from ethnic minority backgrounds in England were less likely to feature in non-standard applications than in standard applications, although levels of missing data prevent more in-depth analysis.
What do we know about the children involved?
- Around three-quarters (72%) of non-standard applications involved a single child – a greater proportion than in standard applications (59%).
- In both standard and non-standard applications in England and Wales, half of the children were girls.
- On average, children in non-standard applications were slightly older than those in standard applications, and a greater proportion were over 10 years old.
- We are unable to reliably report on the ethnic diversity of children due to high levels of missing data in the Cafcass administrative data and ethnicity data not being available in Cafcass Cymru records.
Who is applying for which orders?
Figure 1 sets out the different types of orders that were applied for within non-standard applications in England, and who applied for them.
In Wales a similar picture was seen, although it is not possible to distinguish between ‘live with’ and ‘spend time with’ CAO applications. There was also a sizeable number of adoption cases not recorded in private law cases in England.
Professional reports and investigations
- In England, less than half of non-standard applications were in a case that included a section 7 report, section 37 report, or rule 16.4 guardian appointment.These are indicators of both possible welfare concerns, and child engagement and participation, and are often assumed to imply that cases are more complex. Overall, these reports and investigations were ordered less in non-standard cases than in standard cases (45% compared with 52%). Where extended family members were making an application for a ‘live with’ order, one or more of these indicators was present in just 38% of cases.
- Overall, a lower proportion of non-standard applications had a section 7 welfare report ordered (36% compared to 47%) although more were carried out by the local authority (14% compared to 10%).
- A greater proportion of non-standard applications were in cases where a guardian was appointed to independently represent the interests of the child (8.8% compared to 5.0%).
- The research has described who the individuals involved in this ‘other 10%’ of private law applications are, painting a picture of diversity. Although a majority were grandparents, other relatives, step-parents, and intended parents (in surrogacy cases) were also identified, alongside parents. Overall, non-parents tended to be older and less ethnically diverse than parents in standard applications, and greater proportions were women and lived in more deprived areas. High levels of missing data for some groups prevent more in-depth analysis.
- There was regional variation in the incidence of non-standard applications in England, with higher rates in Yorkshire and the North East, and lower rates in London. Higher levels of deprivation may be one possible driver but other factors:
– including the availability of mediation, legal advice and other support services
– require further evaluation. There is a need to explore these variations at a more granular level, including local authority and court area, to uncover any possible differences in local practice.
- Many of the cases can be characterised as having an element of overlap with public law. The circumstances of around two-fifths of cases (38%) suggested they fell into this group, with the circumstances of a further two-fifths (37%) indicating that they might, being more difficult to determine without further information. These are cases where the court is being asked to make orders to confirm arrangements where children appear to be being cared for away from their parents. Although these proceedings are dealt with as private law, there are potentially child protection concerns playing out in the background. Given this is a substantial number of families each year, careful thought needs to be given to the impact of cases being dealt with in the private law system rather than public law system – including whether the child is automatically represented, the level of scrutiny, eligibility for legal aid by the adults involved, and potentially, what long-term support is offered to children and their families. There is currently no clear pathway for these cases through the courts, which needs to be considered given the differences with standard private law cases.
- There is a need to understand more about when local authorities might support extended families to make a private application for a child to live with them, rather than issue care proceedings, and how and why this might vary. The difference in the ethnic diversity of non-parents compared to parents in standard private law proceedings and public law proceedings warrants further exploration in this context.
- The usual mechanisms by which the courts explore welfare concerns and enable the voice of the child to be heard in private law proceedings were less evident in non-standard cases than standard cases. While some of this may be explained by the use of specific reports in special guardianship and surrogacy cases, it is still worthy of further exploration (especially given the large number of CAO cases in the cohort). The involvement of non-parents would suggest more complex welfare considerations, especially in cases where the court is being asked to make orders that confirm arrangements where children are being cared for away from their parents. Further research is needed to understand the role of local authorities, the information they record, and the experiences of those involved.
- The research has also highlighted the need for more robust data and improved administrative recording – for example of the relationships between adults and children – so that an accurate picture can be obtained of family circumstances. Systematic recording of the ethnicity of individuals would enable more robust analysis of any variations. Ethnic minority adults, particularly non-parents, were less likely to appear in non-standard private law applications than in standard applications overall, but high levels of missing data for some groups prevented further exploration.
- The current programme of reform focuses almost entirely on the experiences and needs of separating parents. This research highlights the substantial number of cases that sit outside of this, and the need for future reforms to properly engage with these alternative circumstances, where there are potentially high levels of need and complexity.
- Family Justice Data Partnership
- The Centre for Child and Family Justice Research
- Lancaster University
- SAIL Databank
- Population Data Science at Swansea University
- Swansea University Medical School