Research and the family justice system

Research can play a vital role in the family justice system, says Professor Judith Masson

Gavel illustrationMost of my research is around child protection and how the courts operate when dealing with families.

Research within the family justice system is not common, or easy.

But it can be beneficial, from helping professionals to understand how the courts operate to improving the process for children and parents.

Research barriers 

The family justice system doesn’t always recognise the value of research studies or comparing outcomes.

The clash between legal and research culture is perhaps the biggest obstacle researchers must overcome. They’re looking at patterns and explanations drawing on a variety of information. Courts consider individual cases on the basis of the legally defined evidence presented to them.

The majority of practising lawyers aren’t exposed to socio-legal research in their training. They look at other family court cases, but these reports are long and have to be read in full to be understood.

Law reports don’t provide a basis for understanding how the courts are operating in the majority of unreported cases, how the family justice system is handling cases, or the implications for children, families or child protection.

Cost and resources are barriers, and there are ethical, legal and confidentiality issues. You can’t just march into a courtroom and rifle through sensitive files.

Records of proceedings are shaped by the legal process and speaking to those involved brings different perspectives that need to be taken into account in research design and analysis.

Once the legal system has made a court order, it’s no longer interested in the case. The court exercises its discretion in the best interests of a child, operating on a basis of individual justice and assumptions about what’ll happen after the order is made. 

Outcomes for children

I believe research can make a significant difference to family justice. People who operate the system should have a better and more realistic understanding of the outcomes for children.

I’ve conducted a series of studies based on court records, looking at what care proceedings are really like, how long they take and regional variations.

These studies, analysing court files, observing hearings and interviewing lawyers and social workers, were instrumental in making the case for the introduction of a 26-week time limit on the length of cases. 

Pre-proceedings process study

Between 2010-2012, I was involved in a study that looked at the pre-proceedings process, where parents are formally warned of the possibility of care proceedings, receive legal aid and are invited to a children’s services meeting. The study looked at the impact of this process.

One quarter of cases were diverted from care proceedings. Some parents improved their care, some accessed the support they needed, others decided their children would be better with other members of the family.

We collected data on the cases that went to care proceedings. We’re now linking this information to administrative data from the care system to see what happened to these children in the short term (after 1 year) and longer-term (after 5 years).

We’re looking at key factors including:

  • whether children are still in the care system
  • what further proceedings have been brought
  • the circumstances if children have left the system
  • to what extent permanent placements have been achieved.

With administrative data, there are limitations - you can’t tell if the children are happy. But by looking at this data we gain a better understanding of their care careers and outcomes following proceedings.

New studies in the family justice system

I’m currently looking at how court proceedings have operated since the introduction of the 26-week time limit, focusing on decisions for children. Shorter proceedings may lead to different orders and more children going home, so we’ll see if arrangements last and children are protected.

The shorter process means we should find out what the court has decided in a 2-year study that wasn’t possible previously. We’ll also look at how the shorter process impacts on decision makers.

Research would also be useful in establishing how parents understand what’s happening in court and whether they’ve had a say, helping legal professionals learn how parents experience proceedings.

There are ethical difficulties in involving parents in research during court proceedings, but useful research has been conducted on representation that focused on their lawyers.

Research into court proceedings could be made less costly if data about proceedings, such as length of proceedings, number of hearings and orders made, could be captured automatically. This wouldn’t end detailed studies, but would tell us more about the effects of change.

Even if judges used a series of tick boxes after making a court order, to summarise the reasons for this decision, it would help us compare outcomes between cases. Over time, this would enable the courts to have better information about the work they're doing.

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