The outdated practice of magistrates hearing private law children’s cases must be abolished
3 min read
Magistrates have formed an integral part of the England and Wales legal system since the 12th century and the reign of Richard I, who appointed the first keepers of peace. Almost 200 years later, pursuant to the Justice of the Peace Act 1361, the term ‘Justice of the Peace’ was formally introduced. It is not lightly, therefore, that I propose reforming magistrates’ roles, but there is an overwhelming policy argument for doing so.
I am not for a moment suggesting that magistrates do not have an important role to play in the justice system. That would be a fallacy. However, I am increasingly convinced that the nature and focus of their work should be reconsidered. And, in the case of child arrangement orders, the magistrates’ courts should no longer play a role.
The context of this issue is important. As of 31 August 2024, the Children and Family Court Advisory and Support Service (Cafcass) had 16,671 open private law children’s cases, involving 25,670 children. In the first quarter of 2024, the average time for such cases to reach a final order was 44 weeks. During this period, children are left with masses of uncertainty.
The reason for this argument is simple. There is an inequality in our legal system when it comes to private law family cases: cases which decide the nature and degree of contact a child has with each parent; cases which determine the long-term future of a child; cases which, by their very nature, have a significant, lasting impact upon any child.
The stakes in cases such as these could not be higher
Private law children’s cases can currently be heard before a bench of three magistrates or a district judge with a family ticket. Magistrates are a lay bench who, well-meaning as they may be, are not required to hold any formal legal qualification. While magistrates undergo some specific training following appointment, it does not amount to more than a handful of days a year. Whereas a district judge hearing such a case undergoes much more rigorous training and must have a law qualification as a prerequisite.
The stakes in cases such as these could not be higher. This singular, most important decision, if misjudged, can set in motion a truly devastating series of events, thereby irreversibly damaging a child and their life chances.
Compare and contrast for a moment the role of magistrates in criminal law cases. The maximum sentence magistrates can hand down is 12 months – anything beyond this is remitted to the crown court to be heard by a circuit judge. In comparison, a decision about a child’s domestic arrangements until adulthood (invariably much longer than a 12-month period) is often made by individuals with no specialist knowledge or training in family law – and in the absence of such formal legal training, subconscious bias among magistrates is likely to run higher than among members of the judiciary.
Look at the approach of other courts in England and Wales. Specialist judges preside over, among other things, employment, immigration, business and property, and social entitlement cases. Even in cases where a panel of three sits, it is a legally qualified, specialist judge who chairs.
Given the importance of such decisions to a child’s long-term prospects, the historic and outdated practice of magistrates hearing private law children’s cases should be abolished. It proves itself an inefficient and unreliable system of dispensing justice in the modern world – and runs the risk of reaching inconsistent decisions of questionable quality. Far too often, one hears of cases simply being decided as a timetabling exercise; a child’s weekly diary being carved up without proper thought or consideration of the impact on the child.
Removing the role of magistrates in private law children’s cases, and ensuring all such cases were heard by a specialist family judge, would ensure greater consistency of decision-making, applying a more judicious and impartial approach.
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