What do we know about ethnicity in the family justice system in England?

Introduction

Over the last five years, the Children and Family Court Advisory Service for England (Cafcass) has made a considerable effort to improve the recording, analysis and reporting of a range of diversity characteristics, including ethnicity, which has been identified as an important first step in better understanding the diversity of children and families in the family justice system (Cafcass 2021). In April 2016, Cafcass started to collect data on the ethnicity of all children and adults in both public and private law cases far more systematically, enhancing the potential of this data for research.

The objectives of this study by the Family Justice Data Partnership – a partnership between Lancaster University and Swansea University – were to:

examine the quality and completeness of Cafcass data regarding ethnicity
describe the ethnic diversity of children and adults in public and private law cases in England, both nationally and by region
consider, against the national picture, whether particular ethnic groups are under- or over-represented in the family justice system in England.

About the data

This study used anonymised, population-level data on all children and adults involved in public and private family law cases in England between 1 April 2007 and 31 March 2020. The cohort consisted of 2.8 million people:

322,000 children and 444,000 adults in public law cases
808,000 children and 1,230,000 adults in private law cases.

National ethnicity estimates are from the publicly available Office for National Statistics (ONS) 2019 experimental statistics (ONS 2021). This report uses the same 5 (‘high-level’) ethnic group categories and 18 (sub) categories as the ONS and 2011 census.

The analyses in this report are descriptive and should be treated as preliminary.

Key findings

Quality and completeness of data

There has been an overall improvement in the recording of ethnicity by Cafcass since 2015/16. Prior to this, ethnicity data was recorded for less than a third of people involved in family law cases. In more recent years (2016/17 to 2019/20), ethnicity has been recorded for around four-fifths of both adults and children. This is a major step forward in understanding an important dimension of diversity for the population of children and families involved within the family justice system.
Throughout the study window (2007/8 to 2019/20), ethnicity was more likely to be recorded for adult women than men in public law cases. This reflects what we already know about the potentially marginal position of fathers in child protection and care proceedings and the dynamics of engagement with fathers in social work practice (Brandon et al. 2019; Brown et al. 2009; Critchley 2021; Philip et al. 2019). In contrast, however, there was little difference in the completeness of ethnicity data for men and women in private law cases. Given that male litigants account for a majority of applications in private law (Cusworth et al. 2021), this is an important new finding.
There were some variations in the level of completeness of ethnicity data by region, and further research is needed into potential driving factors, including local practice. In addition, questions remain about whether the patterns of missing data are random or systematically biased.

Ethnic diversity of children and adults in public and private law cases

According to the Cafcass data, in the three years between 2017/18 and 2019/20, the majority of adults and children involved in family justice proceedings were White, both in public and private law. While a higher proportion of adults were recorded as White than children, lower proportions were recorded in Mixed or multiple ethnic groups. Moreover, the ethnic diversity of both children and adults involved in family law cases has not altered in the last three years.
A higher proportion of both adults and children are recorded as Asian or Asian British in private law cases than public law cases. Further work is needed to explore the underlying reasons for this notable difference.

How does the ethnic diversity of children and adults in the family justice system compare to the general population?

The data showed that both adults and children in the Black, African, Caribbean or Black British, Mixed or multiple and Other ethnic groups were over-represented in public law proceedings. This mirrors previous research showing that Black children and children from mixed ethnic groups are over-represented in the care population, while Asian children are under-represented (Bywaters et al. 2017, 2019; Owen and Statham 2009).
We found that, as in public law, people in the Black, African, Caribbean or Black British, Mixed or multiple, and Other ethnic groups were over-represented in private law cases. However, a different picture emerged for those in the Asian or Asian British group, who were under-represented in public law cases, but not in private law cases – 8% of people in private law cases were of Asian heritage, the same proportion as in the the general population. Findings in relation to private law are entirely novel and provide new insights into the ethnic diversity of adults and children in private law proceedings.

In both public and private law, ethnic disproportionality is most apparent for people of Mixed or multiple ethnicity.

The proportion of people in public law and private law cases was 6.7% and 6.3% respectively, around three and a half times higher than the proportion in the general population (1.9%).

Although people from a White ethnic background are generally under-represented in the family justice system, significant differences are seen within the White ethnic group.

People in the Gypsy or Irish Traveller ethnic group are over-represented in both public (0.7%) and private (0.1%) law, compared to the general population (<0.1%). Further research is necessary to explore ethnic disproportionality beyond the five broad ethnic group categories.

There were some marked regional variations in the ethnic diversity of both adults and children in the family justice system when compared to the general population.

In all nine regions – East Midlands, East of England, London, North East, North West, South East, South West, Yorkshire and the Humber and West Midlands – there was greater ethnic diversity amongst people involved in both public and private law cases than in the general population, with lower proportions recorded as White. This suggests that across all regions in England a disproportionate number of children and adults from non-White ethnic backgrounds are involved in family law proceedings.
The most striking ethnic diversity of people in the family justice system is seen in London. While three-fifths (59.2%) of the general population is White, 43.7% and 42.4% of people involved in public and private law cases respectively were recorded as White.
In other regions, the pattern varies. For example, in the West Midlands, 8.5% of people in public law and 7.8% in private law had Mixed or multiple ethnic backgrounds compared to 1.7% of the general population.

Conclusions

Significant progress has been made, and continues to be made, in improving the recording of ethnicity within the case management data collected routinely by Cafcass.

Maintaining and reviewing the quality of this data will help to ensure reliable estimates of minority ethnic populations involved in the family justice system in future years.
While it is important to continue to progress reliable estimates using Cafcass data, it will also be beneficial to supplement the historical Cafcass data via data linkage, to provide ethnicity information from other sources, for example health data.

Our provisional findings indicate that the family justice system works with a diverse population of families, in both public and private law proceedings.

Entirely novel findings in relation to private law – especially around the proportion of people from the Asian or Asian British group involved in proceedings – require further investigation.
More detailed analysis is needed to unpack these variations and understand the relationship with both the ethnic diversity of the underlying regional population and other factors, such as levels of local area deprivation and regional variation in terms of urban and rural areas.

Given the ethnic diversity and the limited literature and analyses to-date, more needs to be done – at both a quantitative and qualitative level – to recognise and respond to the needs of all ethnic groups in the family justice system.

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