A backlog of family law applications going through the courts in England and Wales has left 95,693 cases — and the children and families involved — in limbo, despite minimal change in the number of cases started in the family courts.

The number of cases pending was revealed yesterday in the House of Lords, after Labour peer Baroness Taylor of Bolton asked the Ministry of Justice (MOJ) how many family cases were outstanding in each month starting with January of last year.

The data shows that as of September 2020, there were 22,881 outstanding public family law (child protection) cases, and 72,812 private family law (children cases) applications outstanding. The last figure does not include applications made under the Family Law Act 1996, including petitions for divorce, which suggests the real figure is likely to be higher.

Data for October through to December 2020 has not yet been published, and could reveal a decrease in pending cases, or an ongoing increase if the courts have not managed to find a way through the logjam.

The written question was answered by Baroness Scott of Bybrook, who reproduced figures produced by Her Majesty’s Courts and Tribunals Service management information which published its latest data set on 10 December, 2020.

While the first Covid-19 lockdown in March is partly to blame for the queue of cases growing inside the family courts, as court houses were forced to close (and then scramble to implement remote hearings and other digital devices to keep cases moving), family courts have been experiencing a heavy backlog for years. Inefficiencies inside the system and poor legal processes not dynamic enough to react fast, and well, to cases and the needs of families lie at the heart of this block.

The Ministry of Justice data set for family court cases, which was updated on 18 December, 2020, offers more concerning revelations. Almost 6,000 children were involved in care proceedings during the months of July to September 2020, though less than 3,000 orders were eventually made.

In that same period, domestic violence (DV) remedy cases were up 26%, a figure which suggests a direct correlation between DV applications and the rise in domestic abuse during the first national lockdown.

In addition, the report offers some interesting reasons for the spike in these cases. The MOJ document refers to a power in use by police forces since 2017, which allow them to release alleged perpetrators without bail conditions, called ‘released under investigation’, and suggests this power could be a factor behind the rise in domestic violence remedy cases, as alleged victims find themselves having to look to protective orders through the courts. 

The document also suggests that the publicity surrounding the Domestic Abuse Bill may also have raised awareness about the remedies available to victims of domestic violence.

And an estimated 71% of care or supervision orders took more than the recommended 26 weeks to complete, with an average completion time of 40 weeks. Adoption orders decreased by 21% when compared to the same period last year, perhaps due to a growing understanding of the need to use these orders sparingly.

Of those who did adopt a child, 63% of all adoption orders were issued to mixed-sex couples, 19% to sole applicants, 13% to same-sex couples and 5% to step-parents.

For the first time since their introduction in 2008, the number of forced marriage protection orders (FMPOs) went down. The researchers found that from July to September 2020, there were 36 applications, the lowest level since the first quarter of 2013 and that, of the applications this quarter, 47% were for people aged 17 and under.

The data also indicates a record-breaking first for deprivation of liberty cases, which is hugely worrying. Applications relating to deprivation of liberty in July to September 2020, were up 29% on the equivalent quarter in 2019 – the highest to date since the series began.

The report offers a snapshot of the impact of the removal of legal aid for private family law cases. The findings estimate that a proportion of cases where both parties had legal representation went from 41% in January to March 2013, to 21% in July to September 2020.