Processes and determining factors when family court judgments are made in England about infants entering care at birth

ABSTRACT

This paper reports on the England part of a research project exploring judicial decision making in eight jurisdictions with respect to care applications in respect of new-born infants. Descriptive data are provided on a total cohort of 278 care applications made to three English family court care centres in 2016. Attention is paid to final orders made and findings are reported on differences between the three care centres with respect to the proportions of orders made (mainly placement orders; but also care orders and Special Guardianship Orders). A particular focus of the paper is on the ‘transparency’ of court processes as evidenced by the availability of transcripts of judgements. To add to the small proportion of cases (11%) where a transcript was available, 30 English judgements on new-borns reported to the BAILII data base in 2016 were also analysed. Differences were found between proportions of orders made when a judgement transcript was or was not available. It is argued that these results add to the call for greater transparency in the family courts.

KEYWORDS:

• Child protection
• new-born children
• family court
• judgements
• transparency
• court orders
• adoption

Introduction

This article reports on the England part of a larger study of decision-making in family court cases on compulsory removals of new-born children and adoptions from care, funded by the European Research Council and the Norwegian Research Council. The study includes child protection cases in eight jurisdictions (Austria, England, Estonia, Finland, Germany, Ireland, Norway and Spain) (see Burns et al. 2019 for a fuller account of these different family court processes). The over-arching aim of the research is to contribute to understanding of the reasoning and justification of ‘best interest’ decisions by providing contextual information about family court processes in contrasting European countries and by analysing samples of written judgements from each country (see Krutzinna and Skivenes 2021, Luhamaa et al. 2021).

This article, which focuses specifically on new-born care applications, reports on the process of collecting the sample cases in England. It provides contextual and descriptive data on the cases and the availability of transcripts of judgements. The findings lead on to a consideration of the extent to which the decisions of the family courts, which are likely to have a life-changing impact on the adults and children who are the subject of care proceedings, are ‘transparent’ to parties to the proceedings, to family justice professionals more widely, and to the general population.

Context of family court care cases in England

In the early stages of combined family courts Sir James Munby (2013, p. 4) in a View from the President’s Chamber wrote: ‘I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice’. Despite this determination ‘from the top’ and some easing of restrictions on media reporting and guidance about access to court documents (Munby 2014), progress has been slow. In his View from the President’s Chamber (May 2019, pp. 8–9) Lord Justice McFarlane restated the determination to make progress and announced a review of this issue: ‘It is important that the Family Justice system is as open and transparent as is possible, whilst, at the same time, meeting the need to protect the confidentiality of the individual children and family members whose cases are before the court’. Commenting that ‘the tension between privacy and publicity in the family courts is one of the most troubling issues in the family justice system of England and Wales’ Doughty et al. (2017, p. 8) present research findings and a detailed exploration of this issue.

The research reported in this paper was conducted against the background of growing concern about large numbers of children in care (see FRG, 2018) and the (Keehan) review of public law cases initiated by the President of the Family Division (Public Law Working Group 2021). Three specific issues form part of the backdrop to the paper: the decrease in adoption placement orders alongside the increased use of private law orders involving placement mainly with relatives; the rising numbers taken into care at birth (see the ‘Born into Care’ studies of Broadhurst et al. 2018); and the ongoing legal and practice debate around the place of adoption from care (Doughty, 2015, Featherstone and Gupta 2018, Thoburn and Featherstone 2018).

Since the implementation of the Children and Families Act 2014, applications for public law care and supervision orders and adoption placement orders are heard in one of 44 English combined family court care centres. The same courts hear private law cases, mainly concerning divorce and separation matters, but they also hear applications for adoption orders (following a public law placement order or in a small number of cases with the consent of the parent(s) witnessed by a Cafcass Family Court Adviser). Some care centres receive applications from a single local authority, and others from up to four local authorities. Each care centre has a presiding designated family judge and cases are heard by him or her, by other circuit judges, recorders, district judges, or lay magistrates.

If an offence against children comes to trial this is heard independently as a criminal case in the crown court. It has become usual practice since 2014 for the care case to be heard in advance of the criminal case to avoid delay in planning for the children. In such cases, if the nature of abuse to the child is disputed (most often in cases of physical injury or sexual assault) a family court judge, if feasible, may first list a ‘finding of fact’ hearing before proceeding to a separate hearing of the application for a care or supervision order.

Most care cases do not start with a fact-finding hearing (most concern allegations of actual or likely neglect or emotional harm, or proven harm to an older child, usually a sibling of the child who is the subject of the current application). In the majority of cases, at least by the time of the final hearing, the parents accept that the threshold for ‘significant harm’ has been crossed although they may dispute some of the detail and the judgements may note when this has happened and any agreed changes. Most often, however, parents contest aspects of the care plan, especially if there is a plan for limiting family contact, and more so if the care plan is for adoption.

Applications for care, supervision and (adoption) placement orders as well as emergency protection orders are made by a solicitor instructed by the relevant social work team. Applications for private law orders, including residence orders (ROs), child arrangement orders (CAOs), special guardianship orders (SGOs) and adoption orders (AOs), are made by a parent or other person with parental responsibility (including prospective adopters and guardians with whom the child is already living. However, judges hearing care, supervision or placement order applications can of their own volition make any order (other than an AO) even if not specifically applied for by a party to those proceedings. Leaving aside an emergency protection order and the (infrequently used) child assessment order, alongside the application made by the local authority, any party to public law proceedings may propose one of nine possible public or private law orders. Orders are often made in combination (for example a care order and placement order; a care order and an order for specified contact arrangements; a special guardianship order and supervision order). The judge or magistrates may decide to make no order and occasionally a local authority (LA) will be given permission to withdraw an application.

The court may also attach ‘recitals’ summarising what has been agreed in court, often with respect to contact arrangements. To give an example from one of the judgements reviewed for this study, ‘it has been agreed that the child will return to the care of [named parent] whilst the care order is in place’ and including an ‘agreement between the child welfare agency and the parent that she will continue with treatment’.

The provision for a Sec 34 contact order alongside a care order is rarely used as there is a presumption of reasonable contact between children in care and their parents and siblings. If made, this is most likely to be to permit a local authority to limit or prevent contact with one or both parents. There is provision for an adoption placement order to include a requirement for continuing birth family contact during the period before an adoption order is made. This is very rarely used, although informal arrangements may be referred to in the judgement. Monk and McVarish (2018) argue that more use might be made of this order especially if there is a plan for ongoing sibling contact.

The key decisions with respect to adoption of a child who is judged to have crossed the ‘significant harm’ threshold for the making of a care order is whether an adoption placement is necessary and whether the parent/s’ consent should be dispensed with. Although parent/s technically continue to have parental responsibility until the adoption order is made, they share it with the local authority, are precluded from exercising it in any meaningful way, and may not contest the adoption at the final hearing unless they have leave of the court and (usually) have made significant changes (see re SC, LC and TC Case No: B4/2020/172427 November 2020 for a case when a parent was given leave to contest a Placement Order but when the Appeal court decided that the proposed adoption should continue). Parents may be heard at the adoption hearing but may not dispute whether an adoption order is to be made and very few attend the hearing. Legal aid is only available to parents for the adoption and any separate placement order proceedings in exceptional circumstances. However, when a placement order application is heard at the same time as the care order application, parents’ legal costs are covered by legal aid since consideration of the care plan has to be part of the care proceedings.

Methodology

Access to transcripts of court judgements was obtained in two ways. We searched the British and Irish Legal Information Institute (BAILII) data-base of published and anonymised care cases heard in 2016 with respect to infants entering public care as new-borns. These give only a very partial picture of care and placement cases as publication on the BAILII data-base is at the discretion of judges (see Doughty et al. 2017, 2018 for research and discussion on the judgements published on the BAILII data-base). Some judges have concerns in some cases about anonymity for families even when judgements are carefully redacted, but there are also time and cost considerations. In order to consider a more representative sample of cases, we sought the approval of the Children and Family Court Advisory and Support Service (Cafcass) ethics committee and research team and were provided with anonymised data on a total sample of 278 care applications heard in 2016 concerning new-born children in three family court care centres (covering five local authorities). With the agreement of the former and present Presidents of the Family Division and two experienced designated family judges we were granted confidential access to the court case files on these cases. This allowed us to complement the BAILII sample of judgements with any available transcripts of judgements of what we refer to as the ‘care centre’ cases.

Data were provided by Cafcass on dates of applications and hearings, dates of birth, sex, ethnicity and the final orders made. We (author and accredited researcher from the University of Bergen) were able to extract further details by examining the court files on 260 of these children (court files for 17 had been transferred to other care centres).

A pro forma was used to extract non-identifiable information from the court records, covering: the court process; the level of court and whether adjudicated by magistrates, or judges; the parties to the proceedings; whether parents and other family members were legally represented or not; whether parents and other respondents gave evidence; whether either parent contested the finding that the child had crossed the ‘significant harm’ threshold; and whether there was agreement about the evidence presented to support this. Particular attention was paid to the care plan, and whether all or part of it was agreed or contested by a parent and to whether the social worker, children’s guardian, and any expert witnesses agreed with all or parts of the care plan and the order/s sought. It was noted whether, alongside the formal legal order in the court records and the magistrates’ ‘facts and reasons statements’ there was information about whether parent/s were present in court to hear the magistrate(s) or judge give an oral judgement and any explanation for the conclusions arrived at. For the 37 cases where there was a judge authorised transcript on the court record this was redacted by the researchers and a copy made for detailed content analysis and comparison with the judgements from the other seven countries in the research project (see Krutzinna and Skivenes 2021, Luhamaa et al. 2021 for further details of this cross-national analysis). For the purposes of this paper, the author read all transcripts and noted the contents and arguments relied on when reaching the judgement. The focus for this paper is on the range of orders made rather than the details of the cases and the reasoning underpinning the judgements.

Although not formally interviewed, through conversations with judges, Cafcass senior staff, solicitors and court administrators whilst gaining access to the case records, and during the many hours in court buildings examining the records, background knowledge was obtained about the court processes and case recording.

Findings

Descriptive data on the cohort of 278 care applications on new-borns made in 2016

The 278 care applications with respect to children entering care very shortly after birth in these three county and two urban local authorities comprise all such applications from a population of almost 40,000 children aged under 12 months (approximately five percent of all children in England aged under 12 months in 2016). Urban and rural populations, small towns and cities, and areas with very high and low levels of deprivation were included.

The judgements in these three family court care centres were made by one of 12 circuit judges, 12 district judges and 14 ‘benches’ of magistrates. Some judges had only one case in the sample, but others made 15 or more of the judgements. For the cases for which we had this information, 38% of cases were adjudicated by a circuit judge, 50% by a district judge and 12% by magistrates. A small number of cases moved between court levels, but we were informed that generally the aim was to provide judicial continuity.

There were 17 cases where an older sibling was also the subject of the same care application, and for eight of these there was an adoption placement application for at least one sibling as well as the new-born in our sample.

In summary our paper is based on a total sample of the 278 ‘new-borns’ who were subjects of care or placement order applications in three English Family Court care centres in 2016. (We defined ‘new-born’ as any infant born after October 2015 who was the subject of a care order application in 2016 and had never lived in the unsupervised care of a parent). This is a rate of approximately 80 per 10,000 live births in 2016 across the local authority areas covered. Population sizes differed resulting in 45% of the applications being from court A; 36% from court B and 19% from court C. The chances of being the subject of a care application as a ‘new-born’ varied between the three geographical counties covered by these care centres (66 per 10,000 live births in one area; 96 per 10,000 and 71 per 10,000 in the other two). This difference is congruent with the Broadbent et al. (2018) research which shows that local authorities vary considerably in the rate of care applications made in respect of new-borns, (between 50 and 23 per 10,000 live births in the different English Regions).¹

There were variations between counties in terms of the proportions of applications concerning children of minority ethnicity (18%, 10%, 5%). However, there are problems in interpreting these data as there was a great deal of missing information on this variable in the Cafcass information and in the court case files in all three areas.

Turning to final court orders, in a large majority of the cases the care threshold was found to have been crossed. Leaving out the 15 cases where the final order was not available, the most likely order was a care order (37% of the final orders), followed by a placement order (24%); a supervision order or child arrangements order with the child leaving care to live with a parent (20%) and a SGO or CAO (child to live with relatives or friends) in 16% of cases. There was an order for no order or the case was withdrawn in seven (3%) cases (see Table 1 columns 1 and 2). There were differences between care centres in terms of the proportions of orders made – for care orders the proportions were 43%, 32% and 33%; for placement orders the proportions were, respectively, 21%, 28% and 27%; for SO/CAO (child to live with a parent)- 15%, 21% and 23%; and for SGO/CAOs child to live with a relative 17%, 18% and 12%. When comparing these court outcomes with those from the Broadhurst et al. (2018) research, the proportions for ‘no order’/ case dismissed are very similar. However, more in this study returned to a parent, and there were more placement orders and SGOs in the Broadhurst et al. research.

Table 1. Court orders made in 3 care centres (applications made in 2016 with respect to new-borns) and % of different final orders when transcripts available

Final order where known	Number of ‘care centre’ cases	Percentage of cases where order known	Orders made for 67 ‘care centre’ and BAILLI transcript cases
Placement Order	64	24%	37 (55%)
Care Order	97 (includes 6 where child living with a parent)	37%	10 (15%)
Special Guardianship	43 (includes 7 with Supervision Order	16%	10 (15%)
Supervision Order/CAO (child living with a parent)	52	20%	4 (6%)
No Order/other ‘case specific’	7 (includes 1 case withdrawn by LA)	3%	6 (9%)
No final judgement available	15
Total	278	100%

There were 37 judge-agreed transcripts on the court records (most of which appeared to have been requested by the Local Authority although this was not always clear). These comprised 14% of the 263 for which a final order was known. There was variation amongst LAs in terms of frequency of seeking a transcript. From this sample, they tended to have been requested in controversial or contested cases (usually either a fact-finding hearing prior to the full hearing of the care case or in more complex care and adoption placement order cases. This request was also more likely if the proceedings concerned more than one child, or in cases where the judge declined to make the order sought by the local authority and/or supported by the Cafcass guardian. Details on these cases are discussed in the following section. There were 13 of the shorter ‘Facts and Reasons’ statements required in all magistrates’ court care cases. (It was decided by the research team that, because of the brevity and somewhat ‘formulaic’ nature of most of these, they would not form part of the detailed analysis of judgements).

The 67 cases for which an approved transcript was available

The 37 ‘care centre’ judgements

All were with respect to a new-born although eight also concerned one or more older siblings subject to the same application. Placement orders were made with respect to 23 of these cases. Of the other 14: in two cases the threshold was not found to be crossed and no order made; care orders were made in six cases (with child living with a parent in one case); in one case the threshold was crossed but the child returned to the mother under a supervision order (in total there were four cases where the child returned to live with a parent) and in five cases the child left care to live with a relative under an SGO or CAO.

The BAILII judgements

We identified and analysed 30 judgements on care or placement order applications with respect to an initial application made regarding a new-born infant and published on the BAILII web site for 2016. (Three of these cases also concerning one or more older siblings).

Of these 30 BAILII- reported judgements, 22 were combined applications for care and placement orders and these were the most frequently made orders (14 cases). Sixteen did not involve a placement order application; initial applications for placement orders were changed during proceedings, or the judge declined to make a placement order. Final orders made in these cases were: care order in five cases (with a care plan for child to return to a parent in three of these); SGO and placement with a relative in six cases; threshold crossed but child returned to a parent under a supervision order (three cases); threshold not crossed- no order made in one case and one case was adjourned for further work to be undertaken by the local authority.

The orders made and reasoning recorded in cases where transcripts were available

Putting the BAILII-reported cases together with the ‘care centre’ cases, we accessed 67 judge-approved transcripts of judgements on new-borns made in 2016. Of these, 37 resulted in placement orders and in 10 cases a care order was made (with the child to live with a parent in four of these). In 20 cases the child left care before or at the end of the court case; in 10 cases under a SGO or CAO to live with a relative and in four cases to live with a parent under a supervision order). (There were six cases when no order or a less usual, case specific order was made.) (Table 1, column 3)

Because in most cases the threshold for ‘significant harm’ or likely harm attributable to parental care was fully or partially agreed, most of the judgement was taken up with why an order, and this particular order, was necessary in this particular case. This involved consideration of the local authority’s care plan (spelled out, by the Local Authority and commented on by the Cafcass guardian and any additional experts, and sometimes quoted in the judgement), and an appraisal of services provided prior to or during the court processes or planned to follow the proceedings. If the child would not be living with a parent, or parents were separated, there were usually (but not invariably) comments in the judgement about any arrangements for continuing birth family contact. This was also the case if there were siblings, including in some but not all cases an appraisal of plans for siblings to be placed together or separated and of any arrangements for sibling contact.

Where placement orders were made, judgements cited relevant case law and how the alternatives to adoption had been weighed, but there was considerable variation with respect to detail. In some cases, particular attention was given to why the alternative plans proposed by other parties (especially parents and relatives) were not being accepted, but in others there was a brief statement that no alternative other than adoption was ‘in the child’s best interests’. Most judgements referred to the Children Act 1989 Section 1 checklist (as amended by the 2002 Adoption Act), some in more detail than others. All made reference to any relevant earlier judgements with respect to this or other children of these parents. Some, but not all, made reference to the UN Convention on the Rights of the Child and relevant sections of the European Convention on Human Rights.

Most were lengthy and very detailed, but some were very short, summarising the relevant case law and the evidence on which the judgement was based, but without spelling out the main facts and underpinning reasons for the decisions. For the fuller judgements, different amounts of space were given to the circumstances leading to the application for the care order, the services provided to support the parents in meeting the infant’s care and protection needs, and the arguments presented by the different parties in support of their proposed plans for the child’s future. Some, but not all, spelled out at length the arguments put forward by parents who were opposing a local authority care plan and commented on efforts of the parent/s to meet the child’s needs. Some set out the key arguments in social workers’, Cafcass guardians’ and other experts’ reports, making reference to psychological theories including ‘attachment’ ‘the importance of the child’s time frame’ (linking this to the no avoidable delay principle) and spelling out tensions between the importance of identity and continuity within the birth family, and the need to put down roots in a substitute family if problems with the first family could not be safely resolved. There were also differences in whether the judge appraised the quality of the services provided to the parties and to the court during the proceedings (mainly by the local authority social workers but sometimes by the solicitors and barristers and by Cafcass guardians).

Underpinning some of these differences were variation that could be picked up from the choice of words as to whom the judge appeared to have in mind when writing the judgement. All were writing with an eye to a possible appeal to a higher court. Differences in style and content also depended on the nature of the case and also on the judge’s own view of the purpose to which a judgement might be put, and the reader/s in the near and longer-term. Some wanted to try to ensure that poor practice by family justice professionals would be picked up in future cases. Some judges, especially when a placement order was made, clearly had in mind that the infant may, as a teenager or young adult, want to know why he or she had been removed from one family and become a legal member of another. There were also varying degrees of expressed empathy towards birth parents and other relatives, especially if they had given evidence, taking care to make clear, for example, why adoption was necessary whilst at the same time commending parents or relatives on their efforts to care for the child. Variation was also apparent in the way any future contact arrangements were covered in the reports (between parents but also separated siblings and other family members). Some judges appeared more likely than others to have given thought to the impact of their judgement on potentially life-long relationships, and possible future meetings if the plan following the order was for birth family links to end.

Strengths and limitations of the research

This research provides descriptive data on the final orders made with respect to a particular group of children – those entering care very shortly after birth. The sample of cases studied does not cover the whole country but is broadly representative with respect to rates of children entering care and is large enough to allow for consideration of different local authority court and judicial practices, especially since the important variable of age at entry to care is held constant. However, data are used descriptively as numbers in each area for the different orders are too small for the use of statistical techniques. It is important to note that this is a ‘snapshot’ of the court and care histories of these children. For example, the data do not tell us how many of the 102 infants on whom care orders were made subsequently left care to return to a parent or relative, or left care via adoption, nor whether the 78 children on whom placement orders were made were in fact adopted, although this is highly likely given their young ages.

Discussion

A comparison of final orders from the cases on which judgement transcripts were available, with orders from the full cohort of cases heard at the three care centres gives a clue as to how representative (or not) are those where a written record is available (see Table 1). Judgement transcripts were more likely to be available if an adoption placement order had been made (24% of the care centre cases, but 57% of the cases for which there was a transcript), and less likely if the child left care to live with a parent (23% of the care centre cases and 10% of the cases with a transcript). There was little difference with respect to SGO case outcomes.

These findings on court judgements can be further explored alongside other research studies that consider care planning and placement outcomes for cohorts of infants who enter out-of-home care. Similarities and differences with the Broadhurst et al. (2018) research on new-borns entering care proceedings at birth were noted earlier. A broader perspective is provided by the Neil et al. (2019) analysis of 761 children starting to be looked after in one large local authority when under the age of two (most of whom were under 12 months). In that study, when followed up for between two and eight years after entry to care, 41% had left care by adoption; 32% had left care to live with a parent; 17% had left care via a SGO to a relative and only 6% remained in local authority care. This further illustrates that the ‘transcript’ cases differ from the majority (the 40% eventually adopted in the Neil et al. study includes some who had returned to a parent or remained in care and subsequently been adopted and is still lower than the 57% of the ‘transcript’ cases that resulted in a placement order).

These findings fit with the reasoning for asking for a transcript given to the researchers in conversation with judges, solicitors and report writers. Making an adoption placement order is recognised as a major encroachment into family life, and is the case outcome most likely to be actively opposed during proceedings. It is most likely to be appealed, but even if not, some judges wanted to make sure that the parties, including birth relatives, adoptive parents and also children (as older adoptees) could have access to their reasons for making this decision. Cases which result in a care order are less contentious, but in the smaller proportion of such cases where transcripts were made, this was often because the judge had not agreed to a local authority application for a placement order. This was also likely to be an underlying reason for a transcript to be made if the judge made a SGO or returned a child to a parent when this was not the recommendation of the local authority or there was disagreement amongst the expert report writers. Alongside the information provided about the range and frequency of court orders when new-born children become the subject of care proceedings, the judgements themselves are important in the sense that they explore the judge’s analysis of the proposed care plans, especially for the around a third of those infants who remained in care.

Conclusion

In summary, this paper provides further evidence that full transcripts of judgements which explain how family court judges weigh the evidence when making these life-changing decisions are available (stored within confidential court papers/ electronic records) in only a minority of cases. Even fewer are redacted and made available to the public through publication on the BAILII data base. Further, our descriptive data demonstrate that there are differences in the orders made between cases where there are transcripts and those where no transcript is available. For the majority of cases, although there may be considerable detail on the family, the child, and the social services and court processes within the court documentation, there will be very little information about why the judge made the decision he or she did. Electronic records of proceedings including the oral judgements are made but are even more inaccessible.

As argued by senior member of the judiciary (Munby 2013, McFarlane 2019) and researchers (Doughty et al. 2017, 2018) this has been recognised for some years as a loss to public understanding of family court processes, and to the understanding and learning processes for legal representatives, local authority social workers, Cafcass guardians and expert witnesses. With respect to public and professional understanding, the conclusion may be reached on the evidence of published judgements that a larger proportion of family court cases results in children being placed for adoption than is in fact the case; or the efforts of judges to find ways of meeting children’s needs within their families, or to stay in touch with adult relatives and siblings they are separated from, may be under-estimated. But it is with respect to parents, foster carers, adopters and especially the children that this lack of information should be most concerning. It is not known what proportion of the children who are the subject of family court proceedings will at some stage seek permission to access their court records. It is a growing part of the work of adoption agencies to help adopted people across the age range to access their records and for some it will be important to know why the judge reached the conclusion he did. For those birth parents and relatives who lost contact with a child following the court case, this information may be of immediate importance, or may become important after months or years, perhaps when they re-connect with a child or need to explain to a brother or sister.

It has not been the purpose of this research to explore other ways in which family court processes and judgements can be made more ‘transparent’. In their submission to the President’s Transparency Review the Transparency Project authors (2021, p. 82) ‘recommend that steps are taken to make the process of obtaining transcripts more straightforward’ and make detailed proposals on how key family court documents including judgements can be safely stored, and made available under strict guidance on anonymisation. Opening up the family courts to the media in strictly regulated ways may be a more effective way of achieving that purpose. Baroness Brenda Hale in a public lecture (2018) during her Presidency of the Supreme Court, started from the premise that ‘there is the public interest in open justice, in the public knowing how the coercive power of the state is being exercised in their name’ and set out five principles to be followed when questions of openness to public scrutiny are to be determined in family court cases (see also Tickle 2021and the proposal submitted to the Law Commission by, Munby et al. 2021). Rather this paper adds to the still small body of research providing descriptive data on the present (highly partial) position with respect to openness to scrutiny of judgements in care cases and raises questions as to what steps might be taken, whilst protecting the privacy of the parents and children, to increase understanding of how the family court goes about its highly sensitive task of making life changing decisions.

Disclaimer

This publication from the project reflects only the author’s views and the funding agency is not responsible for any use that may be made of the information contained therein.

Acknowledgments

I am grateful for the time and insights of Professor Marit Skivenes and members and affiliates of the University of Bergen Centre for Research on Discretion and Paternalism. This research on English care centre cases would not have been possible without the agreement to access court records of the two Presidents of the Family Division, Sir James Munby and Sir Andrew McFarlane; of Anthony Douglas and Sarah Parsons and the members of the Cafcass team who identified the ‘care cases’ sample, of the DFJs and family teams in the three court centres and the family solicitor who provided advice and insights. I am extremely grateful for their encouragement, interest, time and patience in explaining their ways of working, and providing insights into the complexities of their roles within the family justice system. I also thank Dr Julie Doughty for very helpful comments on an earlier version of this paper and Lucy Reed, Chair of the Transparency Project and attenders at an April 2019 workshop for thought-provoking insights on different aspects of ‘transparency’.

Disclosure statement

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

Additional information

Funding

This project has received funding from the Research Council of Norway under the Independent Projects – Humanities and Social Science programme (grant no. 262773).

Notes

1. The higher rate in this study is explained by the different ways the new-born samples were defined. In our sample all children born after November 2015 and in 2016 who were subject to a Section 31 application during 2016 were included if they had never been in the sole care of a parent. Some originally entered care under Sec 20 provisions and care proceedings followed.