The modernisation of family justice before and beyond the pandemic: how can complexity theory help us understand the progress and limitations of the reforms?

ABSTRACT

This article considers the modernisation of family justice, set in train by the Family Justice Review and given legal force by the Children and Families Act 2014, with specific reference to public law care proceedings. It does so through the prism of Complexity Theory that has been used extensively to analyse public sector policymaking, including child protection, but that has not to date been applied to family justice. It shows how the Family Justice Review was influenced, from its terms of reference to its proposed solutions, by the rational paradigm that has dominated UK policymaking for decades. Rationalism is, it is argued, of limited value to driving policy in a system as complex as family justice and the use of a performance indicator to enforce compliance has proved to be problematic. Core concepts of Complexity are explained and an analysis of modernisation through the lens of Complexity is provided. The article concludes by setting out principles derived from Complexity to guide family justice through recovery.

KEYWORDS:

• Care proceedings
• family justice modernisation
• complexity theory

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Introduction

A decade or so on from the Family Justice Review (FJR 2011a, 2011b), and in the context of the current Covid-19 pandemic, it is timely to look afresh at the modernisation of family justice in England and Wales. Family justice has been experiencing one of the most turbulent periods in its history, brought on by the global pandemic and the need to embrace remote working at short notice. A backlog of cases has built up and recovery is likely to be arduous. It is important to set the challenges presented by the once-in-a-lifetime shock in the broader frame of other (less sudden) shocks that pre-date Covid-19. As Maclean et al. (2015) show, family justice experienced considerable upheaval during the first half of the 2010s as a consequence of policy shifts and economic constraints. The question then arises as to what we should learn from the policymaking of the last ten years or so, and how policymaking might be modified so as to boost post-pandemic recuperation.

‘Modernisation’ is a common shorthand (for example Ryder 2012) to describe significant reforms to family justice, initiated by the FJR and enforced by the Children and Families Act (2014), encompassing the creation of the single family court, use of judicial resources, judicial case management, administration of the courts, court culture and practice etc. The term is employed more narrowly in this article to denote reforms to s31 Children Act (1989) public law cases, that is applications by the local authority to place a child in its care or under its supervision. The article reflects on the aspirations of the FJR in respect of public law cases and considers the degree to which these were realised with reference to professional and academic perspectives. Use is made of Complexity (aka Complexity Theory or Complexity Science), a framework of theories clustered around a central premise that complex social phenomena do not lend themselves to linear explanations or mechanistic solutions. It has been applied extensively to public sector policy, child protection included, but not to family justice. The article starts with a description and critique of the modernising family justice agenda. It then provides a succinct account of Complexity, followed by an analysis of modernisation through that theoretical lens. It concludes with some Complexity-influenced reflections on family justice recovery.

Modernising family justice: tackling delay

The FJR, established in 2010, aimed to tackle long-standing concerns about children caught up in an unwieldy and out-dated family court system that failed to deliver robust and timely decisions about their futures. Dickens et al. (2014) describe the notion of drift within both child protection and courts emerging in the early 1970s, the consequences of which were psychological harm to children. At its most pernicious this could form a type of secondary abuse whereby the state compounded the damage caused by abusive or neglectful parenting. Such concerns were amplified by research into the impact on children of prolonged exposure to neglect, which many social workers had hitherto assumed was unlikely to cause serious harm to children (Stone 1998). This assumption was undermined by research finding that many neglected children experienced insecure attachments, low self-esteem, emotional/behavioural problems and such like (see Davies and Ward 2012 for a summary). Further, research suggested that childhood maltreatment might adversely influence the development of specific aspects of cognitive and affective functioning and increase vulnerability to future mental health problems (Gerin et al. 2019). The implications of these developments for both child protection and family justice were that swifter action to protect (or remove) children from neglected parenting was required.

When the Children Act 1989 came into force there was an expectation that care proceedings would normally complete in 12 weeks (Dickens et al. 2014). History has proved this to be very optimistic given the inherent complexities and uncertainties within child protection cases (Beckett 2001). Many features of a case are dynamic and potentially subject to change: the order sought by the local authority; the care plan; the viability of alternative carers; the robustness of the placement; the understanding of the child’s needs; the prospects of parents providing adequate care. Some of these might be foreseen and contingency plans put in place but the unexpected also happens: a family member willing and able to take the child becomes seriously ill late in the proceedings; a respondent mother enters a new relationship or becomes pregnant. Such events are liable to have a systemic impact upon the case, the timeframe included.

The interim report of the FJR (2011a) reported at least seven prior reviews of family justice and various ad hoc amendments since the publication of the Children Act (1989) but found that the problems remained stubbornly in place, the principal one being delay. A review led by the Department for Education and Skills (2006) found a whole host of factors contributing to delay: the quality of the local authority application; weak judicial case management; problems in obtaining timely and high-quality expert advice; Cafcass’ failures to provide a children’s guardian at the start of the case; alternative carers being identified late in proceedings. If delay can be unnecessary, as described by the Department for Education and Skills review (2006), then there is also the possibility that the opposite state exists – that there are forms of delay which are necessary or constructive, the purpose of which is to further the welfare of the child. Attempts to reform family justice struggled to make an impact partially because there was professional uncertainty and contest as to the harmful or beneficial nature of lengthy proceedings. This can leave the child exposed to protracted abuse or neglect, disrupt attachments to temporary carers and undermine placements in the short-term and life chances in the longer (Brown and Ward 2013), but can conversely enable a child to remain safely in its birth family and facilitate the testing of a viable alternative placement (Masson 2015). Over-generalisation is problematic, especially so when applied to the inherent ambiguities of child welfare.

The main mechanism to counter delay was the introduction of the Public Law Outline PD 12A (2008 in its first iteration, henceforth ‘PLO’) that formalised both the pre-proceedings phase to be undertaken by the local authority, and the processes to be followed by professionals and managed by the judge once the application was made. The PLO had, like an earlier protocol it replaced, a 40-week maximum timeframe for proceedings. However, the average time taken for a case to conclude rose. Numerous explanations for the failure of early iterations of the PLO have been proposed (Broadhurst and Holt 2010, Pearce et al. 2011, Masson 2015, 2017a). These include reform being treated as an event rather than a process with judges receiving little support or oversight beyond some initial training. There was little leadership and few inducements for professionals to change their practice, in the absence of which family justice remained passively resistant to attempts to reform it.

The family justice review

The FJR, established under the joint sponsorship of the Ministry of Justice, the Department for Education, and the Welsh Government, was charged with looking at the operation of the system, consulting widely and making use of research. Its panel had considerable experience in the fields of family justice and child protection. However, as Kaganas (2014) points out, in respect of public law practice there seem to be just two terms of reference (TORs) (FJR 2011b, p. 182) both of which were already enshrined in law through s1 of the Children Act (1989):

1. The interests of the child should be paramount in any decision affecting them (and, linked to this, delays in determining the outcome of court applications should be kept to a minimum).

2. The court’s role should be focussed on protecting the vulnerable from abuse, victimisation and exploitation and should avoid intervening in family life except where there is clear benefit to children or vulnerable adults in doing so.

The FJR formed the view (2011b) that the principal reason previous reviews had had a limited impact was attributable to the family justice service not functioning as a coherent and managed system at all. On this matter there was, it had found, a consensus: there was a lack of leadership, management, co-ordination, trust, shared objectives, joined-up information systems and technology and evidence. Systemic problems flourished: for example, local authorities provided weak evidence in support of their care applications leading to courts ordering expert assessments which provided a perverse disincentive to local authorities to conduct comprehensive assessments before proceedings. The FJR concluded that the delay was now ‘unconscionable’ (2011b, p. 3) with the average length of all cases at the point of publication standing at 56 weeks.

The FJR further reported this was expensive – public law alone was estimated to cost the government over one billion pounds a year – and put the system, already under stress from an increase in applications, under huge strain and had a detrimental impact on children of having to wait for an inordinately long time for a decision as to who would care for them, ideally for the remainder of their childhood. A timelier conclusion to proceedings was prescribed alongside robust enforcement.

The solutions fell into two categories: those designed to reform the operation of family justice as a system; and those designed to reform the operation of the courts. The former was to be addressed through the creation of a Family Justice Service, the core of which would be the administrative arm of the courts (currently delivered by HMCTS) together with the social work service (currently delivered by Cafcass and Cafcass Cymru), with the Chief Executive reporting to a Family Justice Board. Its functions would include performance management, budget management and the generation and dissemination of research and evaluation evidence.

In the event, a Family Justice Service was not established. In its formal response to the FJR the government (Ministry of Justice 2012, p. 37) was silent on this matter other than saying it would ‘consider what further structural reform is necessary’, phraseology that presaged a direction of travel towards the long grass. Setting up such an organisation would have been expensive and therefore would not have commended itself to an administration committed to shrinking the public purse.

A Family Justice Board (FJB) was set up but with a more modest brief than was originally envisaged. Its purpose is one of system improvement, driving change and co-ordination: neither HMCTS nor Cafcass nor any other organisation is directly accountable to it. In 2012 Sir David Norgrove, who had chaired the FJR, was appointed as chair of the Board, but chairing has subsequently fallen to parliamentary under-secretaries at the Ministry of Justice and Department of Education. Local Family Justice Boards (LFJBs) were also established to monitor and boost local performance. Less ambitious structural changes, such as the replacement of three different tiers of court by one family court, were implemented and have, by common consent, been successful.

The other measures proposed by the review, those relating to public law practice, found favour with the government. There were three inter-linked elements to the proposals subsequently enacted by the Children and Families Act (2014). The first was a statutory timeframe of 26 weeks for care proceedings, with the court permitted to extend where necessary to enable the court to resolve the proceedings justly, having regard to the impact on the welfare of the child. The 26-week timeframe would form a performance indicator. The PLO was revised to support judicial case management and facilitate the meeting of the timeframe. It encouraged concluding proceedings at the Issues Resolution Hearing where there was no dispute between the parties. The other two elements were for experts to be appointed only where necessary, and for the court’s scrutiny of the local authority care plan to be restricted to the long-term plan for the upbringing of the child concerned, that is whether s/he should live with parents, family, adoptive parents or other long-term care. Judges were thus firmly steered towards a prioritisation of some aspects of their role over others: swifter and narrower adjudication, tighter management, fewer inquiries (Dickens et al. 2014).

Implementation

By the time the Children and Families Act came into force in April 2014 the average duration of care proceedings was 26 weeks in many areas. Judged by its own terms (which, as we have seen, were limited in public law practice to a single issue) the FJR was in the medium-term a success. Masson (2015, 2017b) identifies three core reasons.

First, the professional community was largely in favour of shortening proceedings. There were dissenting voices, mostly lawyers (Kaganas 2014, Masson 2017b) and organisations such as the Family Rights Group concerned that parents’ opportunities to prove they could change would be limited. While having less recourse to independent social workers worried some judges, others were unconcerned (Brophy et al. 2013).

Secondly, the implementation of reforms was strikingly different from previous failed efforts to enact iterations of the PLO (see Masson 2015 for a detailed description). Judges were mandated to attend a residential course at which the President of the Family Division was present ‘(making) clear there was no alternative to managing cases in line with the new system: judicial performance would be monitored and failure by the courts was likely to result in the removal of care work to a tribunal’. (Masson 2015, p. 16). The revised PLO was tested out nationally. The government funded training for local authorities. Designated Family Judges spread the word locally. The combination of legal force, formal training and carrots and sticks succeeded where a passive dissemination had not.

Thirdly, implementation was piloted, and given impetus, by the tri-borough care proceedings project, a collaborative venture involving three bordering local authorities in London,¹ the local judiciary and Cafcass. It was evaluated (Dickens et al. 2014, Beckett et al. 2014) and then in a two-year follow-up study (Beckett et al. 2016). The evaluations were largely positive. The median length of proceedings dropped to 27 weeks in the year the pilot was in train compared to 49 weeks in the preceding year. The orders made by the court were more-or-less in line with those made previously. The reform of proceedings did not cause delay in the pre-proceedings work. Justice was not deemed by involved professionals to have been compromised. Fewer children had a change of placement during proceedings. More children were in their permanent placement by the end of proceedings. The follow-up evaluation (Beckett et al. 2016, p. 40) concluded that it ‘is possible to reconcile the demands of speeding up decision-making, maintaining thoroughness, and improving outcomes for children. They turn out not to be incompatible but interwoven’. Some cautionary notes were sounded. Firm conclusions should not be drawn from pilots, the local context was favourable as the three participating boroughs were well-resourced and well-managed, the statutory timeframe was too rigid for some cases leading to concerns that the child’s welfare might be compromised. Examples were raised of an order being made before the suitability of the placement had been established, and of orders being made with the expectation of a return to court to seek a revocation or amendment. Assessments were cut short, special guardianship orders made without support plans being in place. There were anxieties of problems emerging down the line and of practice being skewed by performance management, and hints of compliance without much faith.

The aftermath

Cafcass data² shows that the average duration for s31 cases dropped significantly following the FJR and has since risen with substantial regional variations. The major focus of professional concern shifted from delay to demand. Over a ten-year period from 2007 to 2017 the number of applications in England and Wales more than doubled, then dropped a little but is still historically high. Two large multi-agency groups – the Care Crisis Review (henceforth the CCR 2018) and the Public Law Working Group (henceforth the PLWG 2019) – have considered trends in applications as have various research studies. The CCR (2018) noted regional and local variations in rates of care order applications, including differences between authorities that had similar economic and demographic profiles, concluding that various factors intersecting at a local level push demand on the courts up or down.

The rise in demand on courts is partially attributable to pressures on local authorities. There was, in the first half of the 2010s increased demand against a host of child-related measures – referrals, in need, protection enquiries, protection conferences and plans (Department for Education 2016). Other factors were reduced funding (Maclean et al. 2015) and a culture of risk-aversion following the death of Peter Connelly (Hedley 2014). The work undertaken within the formalised pre-proceedings process is of a variable quality (Holt and Kelly 2018, PLWG 2019) and has a diversion rate of about one-fifth (Masson et al. 2020). The unpredictability of human motives and actions has militated against pre-proceedings work, with parents unwilling to nominate alternative carers, and potential carers reluctant to nominate themselves lest this makes removal more likely (Ipsos Mori 2014). Research has revealed that: s31 applications in respect of infants have risen in England (Broadhurst et al. 2018) and Wales (Alrouh et al. 2019). In addition, about one in four mothers who is a respondent in care proceedings has reappeared in proceedings regarding another child within seven years (Broadhurst et al. 2017), and placements with parents following care proceedings are commonly fragile resulting in a quarter to a third being subject to a second s31 application (Masson et al. 2018, Harwin et al. 2019). Harwin et al. (2019) found that between 2010/11 and 2016/17 there were notable changes to final orders made by the courts with fewer Placement Orders, more Special Guardianship Orders (SGOs) and more Supervision Orders attached to SGOs. They further found that most professionals participating in their focus groups identified the reduced timeframe introduced by the Children and Families Act (2014) as the main reason for some of these trends (Harwin et al. 2019, p. 49). Research conducted in Wales (Alrouh et al. 2019) found a striking increase in the percentage of cases concluding with a Care Order – from 29% to 64% between 2012 and 2018. It too wondered whether the 26-week rule had prompted this change in final orders.

The reforms to public law proceedings, set in train by the FJR and the ensuing legislation, were not designed to influence the orders made by the court and one cannot attribute all the changes noted by the above studies to them. The drop in Placement Orders, and concomitant rise in SGOs has been ascribed to case law, such as Re B-S ([2013] EWCA Civ 1146) (Masson 2017a). However, similar concerns to those raised by the research of Harwin et al. (2019) and Alrouh et al. (2019) were articulated by multi-disciplinary professional groups, the nub of which was that the reforms had brought unintended adverse consequences. Specifically, the PLWG (2019, p. 100) expressed concern that care orders were being used to conclude cases ‘artificially’ and issued interim guidance on the making of SGOs in response to issues raised by Re P-S ([2018] EWCA Civ 1407) in which the Court of Appeal overturned the making of a ‘short-term’ Care Order. Likewise, the CCR (2018, p. 33) reflected positively upon shorter proceedings but was critical of the ‘overly rigid approach’ to the application of the timeframe. Concerns included the making of some final orders before it had been properly established that this was the optimal viable option, and before the local authority had completed its care plan. It set out three circumstances in which it believed judgements had been rushed to the potential detriment of the child: the assessment of family carers; parents demonstrating they could provide safe care; and the testing out of the sustainability of a reunification with parents or placement with family. It posited that hasty decisions might lead to more breakdowns in placements, leading to subsequent applications in respect of the same child and thus creating further stresses on the system. The CCR (2018) also argued that the 26-week performance indicator did not distinguish between extensions designed, for example, to test out the placement of the child with a father with whom he had no previous relationship and those caused by a party failing to turn up at court or a hearing having to be cancelled owing to administrative errors. Child welfare issues risked being conflated with inefficiencies, with both falling under the pejorative term of delay. The PLWG (2019) articulated similar views citing a rigid adherence in some courts to 26 weeks, the contrived ending of cases pushing up the number of children going home on care orders and pressure on judges to put meeting the target ahead of the child’s needs.

I have noted above that the FJB was established to monitor, steer, share knowledge and so on, and that it is government chaired. Doughty (2014, p. 130) suggested that scanning its outputs ‘gives the impression that the comprehensive vision of the FJR has been reduced to a cost-cutting exercise’. The CCR (2018, p. 43) described its status as much diminished. The FJB’s website reveals long gaps between minutes of meetings³: one wonders then how actively engaged it has been in promoting improvement, sharing learning and such like. The baton apparently dropped by government has been picked up by the judicially-led PLWG and by the third-sector organisation the Nuffield Family Justice Observatory (NFJO) which seem to be fulfiling many of the formal functions of the FJB, identifying problems, proposing solutions and improving the use of data and research evidence in family justice. Neither the NFJO not the PLWG can, however, provide the direct link between professional communities, the evidence they generate and government, that the FJB was meant to supply. It may be considered whether the 26-week rule remains enshrined in law, not because its continuing value is supported by evidence, but because political interest has waned and there is no clear mechanism to review it.

I turn now to Complexity Theory, briefly summarising its main tenets, before applying these to the modernisation of public law proceedings.

Complexity theory

Complexity’s core proposition is that linear and mechanistic views of the world are of limited value when explaining complex social phenomena that are characterised by uncertainty and unpredictability (Regine and Lewin 2000, Marion and Uhl-Bien 2001). Two key related concepts are the complex adaptive system and emergence. Many subtly different definitions of the former are proposed – see, for example, Bovaird (2008), Innes and Booher (2010). A complex adaptive system is commonly depicted as comprising many agents that interact with other agents in the system and with the external environment, thus creating elements of order and disorder (described as far-from-equilibrium or edge-of-chaos), self-organisation, new system properties, myriad potential outcomes and unpredictable long-term evolution. Small changes can have major impacts and vice-versa. Organisations and public services are taken to be complex adaptive systems by Complexity theorists (for example Chapman 2004) and one can readily identify characteristics of family justice that might amplify its pre-disposition to organic growth, constant flux and surprise: around 150 local authorities in England alone; 43 Designated Family Judge areas; various professional disciplines; judicial independence; over 60,000 private and public law applications a year; and life-changing decisions made by the court. Viewed through the lens of Complexity, family justice is more than the aggregation of its parts. Its nature is forged by the myriad interactions and communications of the humans who operate within it, creating strange phenomena, unpredictable outcomes and a tenuous link between cause and effect. This process is referred to as emergence, the implications of which are that the policymaker’s capacity to predict and control is limited and likely to be eroded as time passes and the system adapts in nonlinear and unintended ways. Lindblom (1959, p. 86) expressed this idea elegantly over 60 years ago: ‘making policy is at best a very rough process … a wise policy-maker expects that his (sic) policies will only achieve part of what he hopes and at the same time will produce unintended consequences he would have preferred to avoid’.

Complexity has been applied to the making and implementation of public policy within many different fields including: health (Cooper and Geyer 2009, Geyer 2012); the law (Webb 2015); education (Geyer 2012, Szekely and Mason 2019); local government (Bovaird and Kenny 2015); and asylum (Webb 2018); It has also influenced child protection policy and practice in the 2010s, notably through the Munro Review of Child Protection (2010, 2011) and the Reclaiming Social Work model (Goodman and Trowler 2012) both of which pushed back on the over-reliance on targets, audits, inspections, timeframes and rules in favour of establishing therapeutic relationships with service users and enhanced professional discretion. It has not, however, to date addressed itself to the ‘hard end’ of child protection, the s31 care and supervision applications that primarily form the public law arm of family justice.

Complexity’s claim is that the rational model and its go-to methods are of limited value to a complex adaptive system and the ‘wicked’ problems they generate (wicked as in unique, mutating, ambiguous, unsuited to mechanistic fixes – Rittel and Webber 1973 as cited by Devaney and Spratt 2009). Complexity theorists accept that government should set strategy but dispute its impulse to control the course of policy thereafter, holding that control is partial at best and illusory at worst, and arguing that leadership, intelligence and problem-solving capacity are better provided through distribution across organisations than they are held by a central command (Gordon et al. 2017, Hobbs 2019). Political administrations are subject to competing demands and changes of personnel and are poorly equipped to exert day-to-day control or respond flexibly to the unforeseen (Herweg et al. 2017). Government attention is drawn to other priorities with the consequence that policies are commonly characterised by stasis, subject to small and incremental changes and ill-suited to adapt to changing circumstances, interspersed with the occasional ‘lurch’ – a dramatic event brought on typically by extensive and critical media interest, a sudden shift in the public mood or a new government – which forces a matter rapidly up the list of political priorities (Bovaird 2008, Baumgartner et al. 2017). The policymaker’s expectation of practitioner compliance (and periodic attribution of delinquency when it is not forthcoming) is misguided as public sector practitioners are obliged to use their discretion when applying organisational rules to the many unique problems they are faced with daily, creating coping mechanisms that effectively re-write policy bottom-up (Lipsky 1980). Introducing yet more regulation is, to quote Preston-Shoot (2001, p. 14) with reference to social work ‘a failure of thinking about complicated truths’.

The application of Complexity Theory to policymaking invites us to conclude that it is naïve to expect long-term grand plans to come to fruition. A complex adaptive system, faced with an inevitable stream of wicked problems, will not react indefinitely in accordance with the policymaker’s aspirations. The likelihood of a disconnect between policy and practice is amplified where the policy is not congruent with professional values. Humans are not machines having agency and will and the capacity not just to describe the world but to transform it (Byrne and Callaghan 2014, p. 66). Our behaviour is influenced by emotive and psychological dimensions (Little 2015) and we are disinclined to follow instructions indefinitely (Hobbs 2019). If the values underpinning a policy accord with actors’ values the prospects of the policy taking hold are raised. If they are not, the policy may stutter or fail, an example being the Best Value policy of New Labour which was thwarted by local resistance to top-heavy centralisation and inflexible ‘tick-box’ inspections (Bovaird 2008).

Observations through the lens of complexity

I have noted that Complexity has been employed in the analysis and shaping of public service policymaking, child protection included, but explicit contributions to the field of family justice have not been forthcoming. How then might it be applied to family justice reform and what kind of analyses would ensue?

First, the influence of rational thinking upon the modernisation of public law proceedings becomes evident. Holding a review and making an indefinite plan are go-to tools of rationalism as they fit perfectly with the idea that policy should be made downstream and with the constantly-shifting demands made on political administration that cause a public policy matter to rise up the list of priorities – and then drop down again (Cairney 2016). The TORs were narrow in respect of public law and directed the panel firmly to one aspect of a highly complex system – the time taken to conclude cases – thereby over-simplifying the causes of lengthy proceedings and the consequences of these for children’s welfare. Rationalism is also identifiable in the solutions posed by the FJR – the stipulation of a one-size-fits-all (or virtually all) timeframe, the reliance on a performance indicator to boost compliance and the reduction of judicial discretion. We should not be unduly surprised as this is how public policy has been traditionally made, commonly ending in disappointment for policymakers and professionals alike (Grunau and Schonwandt 2010).

Secondly, it provides a cogent explanation of why modernisation gained medium-term approval but then faltered. Conceiving of public bodies such as family justice as a complex adaptive system is central to this explanation. The behaviour of a such a system emerges primarily from the interactions and communications between actors, and thus is constantly in a state of flux. It does not therefore bend indefinitely to the will of the policymaker. Modernising the family justice system for public law cases was successfully ‘sold’ on a win/win premise: justice could be dispensed in a mandated timeframe and children’s outcomes would thereby improve. This struck a chord amongst many actors who shared concerns about unduly long proceedings. Professional compliance was also facilitated by the attention paid to implementation. It was piloted and positively evaluated, albeit with caveats, and there was a gap between the FJR and legislation that allowed for training, preparation and a touch of arm-twisting. Policy will not hold indefinitely, however, particularly if professional values are affronted. In family justice’s case the influence of formal policy has waned as apprehension has grown that it has put pressure on courts to make difficult and life-changing decisions in the absence of appropriate evidence, had an unintended bearing on orders being made, shunted delay to other parts of the system and failed to promote the welfare of some children. Case durations have subsequently risen steadily and their mean length (even before Covid-19 caused further disruption and delay) was, at 36 weeks, higher than the duration envisaged for many cases requiring an extension. This trend implies a reframing of delay in daily practice from invariably bad to a more nuanced view that it should be weighed against other welfare considerations.

Thirdly, it suggests that increasing regulation is liable to produce unintended consequences. Performance indicators are crude mechanisms, unsuited to the ‘wicked’ problems produced by family justice. Examined through the prism of Complexity there are two strong arguments against the 26-week indicator. One is the issue of reliability: does it tell us what it purports to tells us, in this case that children’s outcomes are improved by adherence to it? The tri-borough pilot evaluations gave rise to some optimism that this was the case but the groundswell of professional opinion, articulated by the CCR and PLWG, no longer supports that view. The other is the concern that an indicator distorts practice, leading to cases concluding before the optimal placement has been established, thus meeting the standard but failing to deliver permanence for the child.

Fourthly, the response of the professional community to the faltering of the FJB can be understood in Complexity terms as a positive example of system self-organisation. The government’s apparent disengagement has not led to chaos notwithstanding the substantial challenges of reform, rising demand and then the pandemic. A new order has emerged, one that has shown remarkable resilience and organised itself to fill the gaps. The CCR, PLWG and NFJO are striking examples of professional collaborations formed in the latter part of the 2010s to make sense of developments in public law, drawing on data, research, experience and expertise. The shortcomings of the FJB are plainly a source of frustration to professionals but the functions the FJB was expected to fulfil have been provided by other bodies.

Recovery – a complexity-influenced approach

In summary, from the perspective of Complexity the critique of modernisation of family justice for public law cases lies in rather too much faith in mechanistic, top-down, strategies which over time have proved to be limited in their impact or to have delivered unintended consequences. How then might Complexity Theory be applied to the challenge of stimulating family justice recovery? If the hope is that we are to be gifted a clear bullet-point list of steps that should be taken, then disappointment will follow. This is in part a consequence of the point made in the introduction regarding Complexity being a framework of theories rather than one unified theory. However, it would also be hard to square core theoretical concepts such as emergence and uncertainty with unequivocal statements of how things should now be done. Caution is required to ensure that, in making the case that Complexity has something to offer, one does not betray its fundamental positions (Cairney and Geyer 2015, p. 461), one of which is that there are no quick fixes to messy problems. The strength of the theory seems to reside more in its capacity to provide insights into what is going on and why (Innes and Booher 2010) than it does in prescribing how an organisation or system should be run (Cilliers 2016). Therefore, considering how a complex adaptive system like family justice should recover from the impact of Covid-19 requires humility and an acknowledgement that ideas influenced by Complexity are duly tentative.

The following are some suggested principles to guide policymakers and those charged with driving reform such as the Family Justice Reform Implementation Group:

1. Engage professionals actively in determining how family justice recuperates, not as an event as happened with the FJR but as a sustained process. When, as will surely happen in time, accounts of how family justice survived the pandemic are published, I expect them to highlight the resilience and ability of professionals to adapt in embracing remote hearings at very short notice (having personally observed such phenomena while conducting an ongoing ethnographic study of a family court). Important work has already been undertaken in generating learning from family justice during the pandemic (Ryan et al. 2020a, 2020b). This needs to continue to ensure that professionals’ experiences of finding solutions to thorny problems are maximised moving forward. Experiences, perspectives, successes and failures need to be captured, disseminated and debated.

2. Encourage local leaders to try things out. This nods to two Complexity principles. One is the importance of context – what works in one time and place does not automatically work in another (Ansell and Geyer 2017). The second is the principle of pragmatism as advocated by, for example, Geyer and Rihani (2010) in the belief that trial-and-error makes good use of professional experience and problem-solving skills. In this regard much can be gained from experiences in other public services such as the success of the vaccination campaign which drew on local resources compared to the problems of track-and-trace that did not (Charles and Ewbank 2021).

3. Provide leadership, make plans and set policy but do so lightly, tempering these responsibilities with support to professionals to adapt hierarchical injunctions to make them work in the environments in which they operate. Chapman (2004, p. 12) expressed his exasperation with those in authority – governments, policymakers, managers – who conflate power with wisdom and therefore ‘know better’. In so doing they risk blinding themselves to their own limitations and to others’ abilities. Complexity suggests governance is at its strongest when it is flexible and decentralised (Ruhl 2008) and when leaders can wear various hats – mediator, advocate and guide as well as commander (De Roo 2010).

4. Facilitate an informed debate about the future of the 26-week rule. This article has argued, in line with Complexity thinking, that performance indicators are a flawed response to the problems of complex systems, while acknowledging that the 26-week rule brought a medium-term benefit in helping the system stay afloat. (The issue of whether it has benefitted children is, I think, more contested with the weight of opinion apparently against.) As the time taken to conclude proceedings has grown it is unclear to me, and perhaps to others, what its purpose now is. An evidence-based decision as to its retention on/removal from statute, ideally commissioned by government as it only has the power to amend the law, feels overdue.

This is, to the best of my knowledge, the first attempt to apply Complexity to family justice and empirical evidence cannot be put forward to support or rebut the claim that these principles will strengthen recovery. My case is that it is worth a shot. Embracing Complexity would not require a complete renouncing of the traditional way public policy has been made. It is essentially a plea to think, and therefore act, a little differently. The plea is made in the belief that doing so would lead to a different kind of order, one that is lither, more pragmatic and better attuned to the properties of a complex system like family justice and better suited to making good use of professional expertise. These are properties that family justice is going to need as it emerges from one of the greatest shocks it is ever likely to face.

Acknowledgments

my thanks to Professors Karen Broadhurst and Robert Geyer for their helpful comments on drafts of this article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Kensington and Chelsea, Hammersmith and Fulham, Westminster.

2. https://www.cafcass.gov.uk/about-cafcass/research-and-data/public-law-data/ (Accessed 18 March 2021).

3. https://www.gov.uk/government/groups/family-justice-board#membership (Accessed 18 March 2021).