We hear a lot about ‘secret’ family courts because of reporting restrictions and family privacy, but there is more to genuine transparency than holding processes out in the open. To understand how a system is operating we need information based on reliable data across that system.
A new report has exposed huge data gaps in the family justice system and that there is no-one with responsibility for any sort of oversight or strategy on data availability in family courts. The report was published in late July on the Transparency Implementation Group (TIG) page (as we mentioned in our recent Roundup) without any press release or public announcement that we can find. It’s not even mentioned in the President’s July “View”. This is surprising and disappointing since the report was commissioned through the TIG as part of the President’s own transparency drive, and the TIG’s terms of reference commit to working transparently (as you might expect). In the absence of any press summary or explanation, we’ll summarise the main report, ‘Data collection in the family justice system: what’s available and to whom’, here.
Aims of the study
The TIG Data Strategy sub-group identified six themes where data should be available to answer questions about how family courts are operating. The group was aware that data about the family justice system was held across a number of government departments, local authorities, and bodies such as Cafcass England and Cafcass Cymru, and that some of the required data envisaged by the President’s Transparency Review was not collected or widely shared. A social research company, NatCen, was commissioned to map the available data and identify gaps
The aim of their report was to establish:
(1) which data exists and
(2) which data is routinely available to stakeholders who want to answer those questions.
Here are the TIG questions:
Not especially ambitious, you may think, to interrogate a justice system for this information. However, NatCen had great difficulty in identifying where the data to provide this information was to be found.
Methods
NatCen examined the available datasets and also interviewed researchers, data professionals, family court experts, and statisticians. The data available on the court system, FamilyMan, and on Cafcass databases is set out in a table in a ten-page Appendix to the report.
Findings
The researchers didn’t have an easy job meeting their aims. They list their findings under these headings (related to the six themes above):
- Lack of pre-court information
- Gaps in comprehensive data on the characteristics of children and parents
- Inconsistencies in data collected by local authorities
- Uncertainty around operational aspects of hearings
- Information about financial (legal aid) and non-financial support for parties was largely missing and unstructured
- None of the case management systems consistently recorded the level of a child’s participation in the proceedings
- Domestic abuse – although there was some recording of a broad category of ‘harm’, there was no standardised recording of potential domestic abuse in cases
- The demographic details of the judiciary and magistracy is not recorded by any of the systems although some information on judges in general is published
- Court decisions are recorded but not insights into regional variations or variations over time
- There is a notable gap in data on the longer-term effects of decisions, particularly over a five-year period.
The problem is that case management systems were designed to fulfil administrative functions rather than to support monitoring activities and transparency. NatCen found an absence of an overall system-wide data strategy and any oversight of data collection aimed at enhancing routine availability of information that enhances transparency and offers a comprehensive overview of the family justice system. When taking the system as a whole, rather than distinct data management systems with their own functions, strategies and objectives, there was no existing record of what data is available to whom in what form. It was therefore difficult to determine what exists as current data and plan for future data collection. No single organisation or authority has complete oversight or ownership of all data within the family justice system, leading to a fragmented approach to storing data and making it available. Stakeholders interviewed had partial and sometimes contradictory views on data availability.
Although there’s a new court system called CCD currently being rolled out designed to improve functionality of the courts, just like FamilyMan, it isn’t designed to monitor and evaluate the family courts. NatCen say that more significant ambition and effort will be required to develop systems to answer the questions posed by the TIG.
The report has quite a stark graphic representation of what is and isn’t there. Apparently the only data we can all see is about numbers of cases and how long they took (although the July ‘View’ from the President suggests that case length isn’t always being recorded properly).
The report’s conclusions
NatCen say that the President has made it clear that improvements in transparency are needed to build confidence in the family courts. The TIG developed questions that they believe should be routinely answered. However, current practice with administrative data provides most stakeholders with very limited options to know the answers to these questions.
There is a notable absence of data or statistics on the support provided to families before they enter court proceedings. Information on what happens to families after court decisions are made is very limited and relies on work by researchers.
There are three practical reasons why many of these questions can’t currently be answered:
- some data is not being captured at all,
- some data is being captured in a way that is not currently accessible (e.g. in text and case files), and
- a lack of routine and timely data linkage to other sources.
Substantial and sustained effort will be required to make improvements. Addressing the monitoring and evaluation enquiries raised by the TIG should not be delegated to non-governmental researchers alone. A more comprehensive strategy is necessary to expand this effort internally, possibly through regular reports, as well as comprehensive documentation and tracking of what type of data is available, who may access data, and how it is requested.
The research underscores the critical need for a system-wide data strategy to ensure regular access to information in the family justice system. Such a strategy is essential for transparency, addressing key questions, and improving outcomes. Other public services and government departments have such strategies in place e.g. the DfE strategy aims to support data collection in local authorities and increase sharing of information across departments.
For such a data strategy to be developed and implemented for family justice, there is a need for leadership and accountability. At present, it is not clear who is responsible for the oversight and development of family justice data. This leadership is especially important because the main sources of data come from organisations whose primary purpose is not monitoring and evaluation. It is therefore unrealistic to expect them to spontaneously take on this role without guidance from the wider sector on what is needed and for whom.
Recommendations
1.Develop and assign responsibility for a family justice data strategy
2. Capitalise on existing efforts to digitise family justice data
There will many challenges with doing so and the authors refer back to the need for strong leadership and a consensus on strategy.
Comment
People with experience of family courts are probably unsurprised by a report that the family justice system carries so little accessible information about parties, families, experiences, and outcomes. However, if we look at those individual question from the TIG, it’s worrying to learn that all sorts of policies, guidance and initiatives across private and public law emerge without any comprehensive evidence base.
The President’s Transparency Review of 2021 proposed ‘a scheme of compulsory data collection at the end of each case…as a web-based tool’ which it was anticipated that the TIG together with HMCTS could devise and trial. Before this could be actioned, the TIG needed to find out what data was already collected. It’s not clear now what is happening to that proposal. The Review said:
… better data collection could be transformational in terms of understanding the decisions that are being made, seeing patterns and problems, and ultimately achieving better outcomes. In the slightly longer term there is a need to move towards data collection on what happens to children after the final orders are made.
No-one could argue with that, but in the light of NatCen finding that there is no strategy or oversight of data collection at present, developing a new scheme of collection looks highly aspirational.
The Review also said:
A further avenue by which the Family Court can be more open about its work is for the public to have access to an annual report of its operation, which would include data setting out case numbers, categories of proceedings and outcomes. The report would also include an annual audit on the progress of the various initiatives that are now to be launched under the overall umbrella of ‘transparency’.
Almost three years later, we don’t seem to have any better data collection, and no sign of an annual report on the Court’s operation or an audit on the progress of the Review’s proposals.
We have a small favour to ask!
The Transparency Project is a registered charity in England and Wales run by volunteers who mostly also have full-time jobs. We’re working to secure extra funding so that we can keep making family justice clearer for all who use the court and work in it. We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.