Monday, 23 July 2012

Family Court Cases - Understanding Some Numbers

In this post, I attempt to explain some of the recurring but often misunderstood numbers that are used in discussions about family law and the family courts of England and Wales. In particular, I show how these various numbers fit together to make sense of the claim that 'about 10% of separating couples have their parenting arrangements decided by a judge'.

Two of the posts that I have put on my blog previously - this one from April about what the research says about different care arrangements for children after parental separation, and this one from June about some of the correspondence I had following a radio debate with someone from Fathers4Justice about family law reform - have made reference to some numbers and statistics about family law. In correspondence, in comments on my blog, and in blogs written about me elsewhere, people have taken issue with some of these numbers, and this post is designed to answer one of the more recurring issues.

The question that people are asking is basically this: how do you reconcile the claim that about 10% of separating parents end up with a judge making the decision about their childcare arrangements, with the number of children involved in family court cases and the number of children whose parents separate every year?

The Starting Point: About 10% of Parents Get Childcare Arrangements Decided by a Judge

First the 10% number. I've always been clear that it is about 10%, not exactly 10%. Using a representative sample of people (meaning that the general population is reflected as closely as is possible in the sample of research participants) this 2008 ONS report found that 8% of resident parents and 17% of non-resident parents said that they had court-ordered arrangements about contact. In actuality, the numbers ought to be the same for both parents but, bearing in mind that these numbers come from the parents' reports, the disparity between the numbers could be caused by a number of things.

One reason might be that some cases involve both court orders and agreement between the parties - the court makes an initial order and the parents later agree to vary it to meet changing circumstances, for example. It may be that more resident parents classify that as 'agreement' and more non-resident parents classify it as 'court order'. 

The reasons for the variation are not entirely clear, and it does highlight one of the problems that we face in making absolutely precise claims about family law. The research isn't perfect. In this study, it turns out in retrospect that the question being asked wasn't quite precise enough for our purposes here, and it would certainly be interesting to explore in more detail why different answers came from the two sample groups. But even with that limitation, this is a strong and representative study. In particular, it started with a nationally representative sample, and everyone was asked the same question. Given that, there is no reason to think that one number is going to be more accurate than the other, and taking an average gives us 12.5%.

12.5% is obviously slightly more than 10%, and I'm going to use 12.5% here. I don't think that the difference between these numbers is hugely important, and when talking to the general public as I did on the radio and as I do on this blog, I think they are close enough that it's reasonable to summarise as 'about 10%' - but today I'm going to be as precise as possible, However, to be clear, these are 'best estimates', so the claim is still that about 12.5% of separating families get their child care arrangements determined for them by a judge.

How many family court cases are there?

Now some numbers from the courts. These are 2010 statistics, taken from Tables 2.3 and 2.4 of this administrative report that the Ministry of Justice compiles every year. Those Tables include both Public Law and Private Law and, put simply, Public law is about child protection (taking children into state care because of abuse or neglect) and Private Law is about parenting disputes - we are only interested in the Private Law aspects here.

Within that, I'm focusing on the contact and residence stats because those two types of case are the ones about children's living arrangements and relationships with their parents. (The other orders - specific issue orders and prohibited steps orders - are about details, like which school the child goes to, whether the child should have a medical operation, whether the child should have a religious upbringing and, if so, of which religion, and so on.) So, here it is:

- Number of children involved in cases about residence orders: 40,420
- Number of children involved in cases about contact orders: 46,350

This adds up to 86,770, but it is wrong simply to add them up because some children will appear in both categories - once the judge has made an order about residence then (if it is not a shared residence order) the same child may well be the subject of a contact order. I don't know how many children that would account for, but we can avoid any possible claims that I am trying to manipulate the numbers by using the 86,770 figure. That number is almost certainly too high - possibly by a large margin - but I'm okay with using it for present purposes.

On my post about high-conflict shared care arrangements, I referred to there being '95,500 cases that went to court about children's contact arrangements in 2010'. This is from Table 2.4, which shows that the number is actually 95,460 (for those who want precision). It was a little bit sloppy of me to call these 'cases'. I was trying to make it easier to read, but they're actually called 'dispositions' in the report, and the reason for that is that one 'case' may have many 'dispositions'. There were also 36,970 dispositions involving residence, which I didn't mention previously because it wasn't the focus of my discussion.

Typically, the reason why one case has many dispositions is that a case has one or more 'interim order' made before the final order is reached. (When it is obvious that a case is going to go on for a while the court almost always makes an interim order to put some arrangements in place pending the final decision.) Another reason why there are more dispositions than cases is that some cases come back to court several times - a point I'll come back to later.

So this is how it can be that the court made 132,430 dispositions about residence and contact in 2010, when, at most, 86,770 children were involved in family court proceedings about residence or contact that year. What's more, thinking about it logically, many dispositions will involve numerous children per disposition. If Dave and Sarah have two children but go to court only once, they will add in two children but only one disposition to the statistics. So we need to be a little cautious about using these raw numbers without thinking about what they mean in practice.

But Look How Many Children Go Through Parental Separation Each Year...

The next claim made is that if the 12.5% figure is right, then you can't tie that in with the number of children whose parents separate each year. The argument goes like this: if 86,770 is 12.5%, then that means that 694,160 children are involved in parental separation every year, and that's obviously not true. A fairly standard estimate is that about 240,000 children go through parental separation each year, though we don't really know because parents who are not married (which accounts for nearly half of children in England and Wales) do not have to inform the state when their relationship ends.

However, the 12.5% figure can't just be used to multiply the total in this way, because the two numbers relate to different things. The 12.5% figure is about the proportion of parents who obtain court-adjudicated outcomes. This is a very different thing from the number of court orders made, or the number of children involved in court cases. To understand this, the way that a family court works needs to be understood.

The family court does three main things:
  • One is the typical 'court' job - hearing evidence from two parties who disagree and then making a decision about the outcome of that case. This is called adjudication - the judge actually decides the outcome.
  • The second thing that a court can do is to formalise an agreement that the parties have reached, making what are called consent orders. While the judge has the power to reject the substance of the agreement, consent orders are basically the court rubber-stamping a deal done between the parties.
  • The third thing that the court does, which is not relevant here, is case management - setting dates by which things need to be done, ordering that documents be disclosed, and so on.
In the court statistics that we were looking at, there is no differentiation between adjudicated dispositions and consent dispositions. There is just a total, with no breakdown into categories. I don't know any statistics about the frequency of consent orders in this country, but they are very common. (For comparison, in New Zealand consent orders make up two thirds of all family court orders, and undefended applications a further 24% - only 8% of orders come from contested hearing where the judge has to decide between two sides.) This is very important, because the 12.5% figure that I was quoting is about adjudicated dispositions - about 12.5% of parents have their case resolved by a judge actually deciding what should happen.

So right away that takes the 86,770 number down a good way. I would guess it might be about half of all cases, but I'll go with 30% to minimise the chances that I look like I'm fiddling the numbers. So, the remaining 70% gives us about 60,000 children. That number is still double the 30,000 children that we'd be looking for if the 12.5% number were right. So how do we explain that?

The answer is actually rather obvious. Lots of cases go to court more than once, and they do so over a number of years. Parents do not necessarily separate and go to the court all in one year, and then never return - there are many patterns. Some people go to court almost immediately after they separate; others muddle through for a few months or even years before something happens (often a new partner or a new child comes into the family and upsets the delicate balance of the existing arrangements). Some families get one court order and then manage to make things work in one way or another after that without returning to court. Other families are serial court users, most commonly with intractable disputes that drag on, with interim orders along the way, over several years.

A straw poll of family lawyers that I know estimated that between 35% and 75% of their child law cases involve re-litigation or on-going litigation - that is, either families returning to the court a second, third or fourth time, or families whose cases go on over months or years, with multiple hearings and dispositions along the way. When Nadine O'Connor and I were talking on the radio a couple of weeks ago, she said (as I recall) that she had been involved in about 50 court hearings about her children. That doesn't necessarily equate to 50 dispositions, but it will be several dispositions and, one would think, they will have taken place over the course of a number of years.

So yes, many of the children involved in the 2010 court cases were parents who separated in 2010, but many of them will have gone through separation several years earlier and will still be appearing  on the 2010 statistics. And that's how it is that even when you attach actual numbers to the family court cases, it's reasonable to say that about 12.5% of separated parents end up getting a final order from a judge about residence or contact arrangements.