Uncovering private family law: Exploring applications that involve non-parents

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 ‘non￾standard’ 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.

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. 

• 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.