Family courts deal with some of the most appalling crimes that come before the legal system – neglect and abuse where babies and children are the victims.
And in the last few years there has been a dramatic jump in such cases, up 30 per cent from 14,788 in 2011 to 19,152 in 2017. Today the number is still above 18,000 each year, over 3,000 more than a decade ago.
"The volume of work is simply overwhelming," says Sir Andrew McFarlane, President of the Family Division. "Clearly the pandemic has made things harder but we were already overrun."
If the system is at breaking point, one reason is clear: local authorities are bringing ever more proceedings to take children into care.
On June 17 this year, an independent review reported that annual investigations into potential harm have more than doubled since 2010, to 201,000, while the number of children in care has risen a quarter in that time, to 80,000.
The Baby P phenomenon
The death in 2007 of Peter Connelly, below, the 17-month-old who died after suffering a horrific catalogue of injuries at the hands of his mother and her boyfriend, is one explanation.
Some say the outpouring of anger directed at Haringey child protective services encouraged a risk-averse culture in which councils brought more cases to court and let judges decide children’s fate.
As the designated family judge for east London, Judge Carol Atkinson sits at the coal face of such judicial work. "There was a feeling," she says, "that as soon as the risk of harm was identified, the local authority would say we can’t do anything – get into court, get into court."
So bad was the problem that, before the pandemic, "we were trying to encourage local authorities to hold more of the risk and work with families to keep them out of the courts".
Figures show that the number of local authority investigations launched only to end with no further action taken has more than tripled in a decade – to 134,620 last year.
Recently, stories have surfaced of parents being investigated for a single bruise on their baby. Are any taken into care on that slight basis? "I have to say I don’t recognise that," says Judge Atkinson.
She knows the terrible stakes in such cases.
"Any form of risk to a baby is very difficult to manage. You can’t protect them in the way that you might for a six-year-old who can verbalise it, or go to school and be seen by other people."
Sir Andrew says it would be "an oversimplification" to pin the increase in care cases purely on the shadow of Baby P failings. Instead, he says, cases like Baby P have led to a culture shift "across the board".
"Anyone involved with children – teachers, doctors –in times gone by, you might have seen something that concerned you and thought you’d keep an eye on it.
"Now, the default position is to refer to the social services. You don’t want to be criticised for not doing that. People are wised up to the fact that abuse goes on. And that brings [ever] more cases before the court."
Holes in the safety net
Yet he also says that, for at-risk children, the safety net has also grown more threadbare in the last decade, particularly with austerity’s cuts to Child and Adolescent Mental Health Services, for example.
"Some families, they’re not sadistic abusers but they’ve got drugs, alcohol problems, learning disabilities, multiple partners. They’re not coping and we’re seeing more of those in court," says Sir Andrew.
"Before, a social worker could have been brought in a couple of days a week to help the parents; there might have been early nursery provision, mental health support, a mother and baby unit."
Standing up for yourself
Wrangles within families have also gummed up the court system. Not because there are dramatically more such disputes, but because of what the Lord Chief Justice has called the "virtual disappearance of legal aid" in such cases.
The figures are startling. In 2011, both parties in family courts had legal representation in half of cases; now that is under a fifth.
In almost 40 per cent of cases today, neither party is represented, up from just 12 per cent a decade ago. As the Lords Constitution Committee has noted, such cases where people represent themselves come to court more often and "take longer on average".
"Many of these cases would be better resolved outside the court, say by meditation," says Sir Andrew. By the time they get to court, however, "people have got their mind set on doing battle in court".
That can have more serious ramifications than simple delays, according to lawyer Julian Hayes.
"The victim of domestic violence, say, gets legal aid. But the person who has been accused doesn’t. So you have situations where the victim is cross-examined directly by the perpetrator – a situation which would never happen in the criminal courts."
Whether it is more referrals from local authorities or families at war having their day in court, the result is a growing backlog of cases, despite more judges sitting more days than ever before, even in the pandemic year.
Outstanding cases rose 14 per cent over the 12 months to March 2021, to 63,877, with average delays between offence and verdict now reaching 23 weeks.
HM Courts and Tribunal Service, which runs courtrooms, says it may be three years before the family courts backlog returns to pre-crisis levels.
Solutions Technology, which the Lord Chief Justice says proved “a godsend” during the pandemic, enabling remote video hearings in criminal courts, has also kept family courts going in the last year. But – less suited to their particularly emotionally freighted world – it is unlikely to be a long-term panacea.
"When you’re making life-changing decisions about people’s families and their children, delivering those decisions virtually is not good,” says Judge Atkinson.
“If you’re an 18-year-old mum in a bedsit joining a hearing on your phone about your child who is in foster care, it’s very difficult to get your head around how serious that is."
Sir Andrew, above, is clear. "Getting back fully to face-to-face hearings is something we’ve just got to do."
With good reason – a survey by the Nuffield Family Justice Observatory found that almost half of people in remote hearings had not fully understood what had happened.
As well as encouraging local authorities to support at-risk families, Sir Andrew is also keen to expand Family Drug and Alcohol Courts, which can arrange significant rehab packages for parents and, providing they stick to it, potentially allow them to remain with their children.
"You have to pick the right mum,” he says, “but it has a really good success rate of turning people around."
Some 14 FDAC teams now work with 35 local authorities, up from eight teams two years ago. "My aim is to have one in every postcode."
Judges turning away
Without measures to divert the relentless stream of cases, the danger is that judges will desert the bench.
"We’re struggling to recruit," says Atkinson. "District judges are the engine room of all of this, and people are just not applying for the job."
The workload is heavy, and the distressing nature of much of it takes a toll.
"Working back to back cases, moving from determining whether or not a child’s being physically injured then deciding whether a child has been sexually abused…," she tails off. "We just need more judges."
The cost of Covid
The pandemic is not helping. As families have been locked down together, domestic abuse has jumped. Cases reached 7,577 in the last quarter of last year, up 38 per cent on the same period in 2019.
"I’ve seen a huge rise in injunctions restraining people from threatening or being violent towards their partner," says Judge Atkinson.
Happily, though, Covid-19 does not – yet – appear to have had a dramatic impact on children.
Record numbers of calls to the NSPCC over 2020 had prompted fears that when children returned to schools after lockdown, teachers would notice a rash of abuse problems. "Everybody predicted that," says Sir Andrew. "So far it hasn’t happened."
Instead, like the doctors who earnestly plead with patients to stay away from A&E unless it truly is urgent, he has a message for the public: "We need a major public education campaign to help people understand that coming to court to argue about your children where there is no safety issue should be the destination of last resort, rather than the first port of call."
His dearest wish is that a case featuring separating parents who opt not to rip each other apart in court, and so benefit their child, becomes the storyline in a soap opera such as EastEnders or Coronation Street. "If you’ve got a row with your ex about your kids, we need to remind people what normal looks like."
Whether in criminal or family courts, few insiders doubt the justice system, already under huge pressure before the pandemic, has in the last year come close to buckling.
Robert Buckland, Secretary of State for Justice, has committed £1m to families seeking mediation rather than a date in court, and hopes such services can "become mainstream".
In the courts more broadly, he said earlier this month that he was prepared to do "everything in my power" to ease delays. Case backlogs, he said, "cannot – and will not – be allowed to continue".
But it is unclear how far emergency measures like remote technology, Nightingale courts, and more sitting days will outlast Covid-19.
Nor whether the MoJ will respond to the Lord Chief Justice, who on Monday called for "a debate, when the pandemic is over, on slimmed down juries for some low-level cases".
Juries remain an issue of utmost political sensitivity.
Instead, says Buckland, “we will also do everything possible to learn the lessons of the last 15 months and to rebuild a better justice system".