The History of Family Courts in the UK: Are They Fit for Purpose?

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1. Origins of Family Law in the UK

The family court system in England and Wales has undergone major reform over the past century.

• Pre-20th Century: Family matters were overseen by ecclesiastical courts, with the High Court later assuming responsibility for more complex cases.

  
  

• 1925 – Guardianship of Infants Act: Marked a turning point by empowering courts to resolve custody disputes in divorce cases.

  
  

• 1959 – Legitimacy Act: Allowed courts to make custody decisions for children born to unmarried parents.

2. The Children Act 1989 – A Landmark in Child Welfare

The Children Act 1989 introduced a child-centred legal framework, most notably:

• The “no order” principle: Courts should not issue orders unless doing so clearly benefits the child.

• A legal emphasis on the welfare of the child as paramount.

This Act remains the cornerstone of family law in the UK.

3. Fragmentation Before Reform

Prior to 2014, family law cases were handled by a patchwork of courts:-

• County Courts

• Magistrates’ Courts

• The High Court (Family Division)

This fragmentation often led to inefficiencies, delays, and inconsistency in outcomes.

4. The Family Court: A Unified Structure

The Crime and Courts Act 2013, effective from April 22, 2014, created a unified Family Court, consolidating the roles of magistrates and county courts.

Today’s Family Court handles a wide range of cases:-

• Divorce and separation

• Child arrangements

• Domestic abuse and non-molestation orders

• Adoption and surrogacy

• Local authority child protection interventions

5. The Legal Aid Crisis: LASPO 2012

The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 introduced severe cuts to legal aid, implemented on April 1, 2013.

Consequences:-

• Vast reduction in access to justice for vulnerable individuals.

• Legal aid became available only to those with evidence of domestic or child abuse.

• Accused individuals are ineligible, even when claims are unproven.

• Many are forced to self-represent, navigating complex family law alone.

In some cases, victims must apply for a non-molestation order simply to become eligible for legal aid — a workaround that burdens victims and the courts alike.

6. Abuse of Process and Post-Separation Abuse

There is growing concern that abusers exploit the legal system to continue post-separation abuse — a tactic known as legal coercive control.

Key concerns:-

• Using court proceedings to harass ex-partners.

• Withholding financial support or manipulating child arrangements to punish the other parent.

• Prioritising “winning” over children’s welfare.

• Perpetuating control through delay, false allegations, or legal stalling tactics.

Victims often emerge from such proceedings financially ruined, emotionally drained, and isolated — while the abuser manipulates the system to maintain dominance.

7. The Rise of Parental Alienation as a Counterclaim

In recent years, “parental alienation” has gained traction in UK courts. However:-

• CAFCASS has cautioned that alienation is often conflated with children’s justified resistance due to abuse or neglect.

• Many legal professionals argue that parental alienation is frequently used to discredit abuse allegations, especially by perpetrators of coercive control.

• There is no consistent, evidence-based method to assess alienation claims, and much research relies on self-reporting and lacks peer-reviewed robustness.

8. Expert Evidence and Judicial Decision-Making

In 2021, the President of the Family Division issued updated guidance on expert evidence, reminding courts to:=

• Scrutinise credentials, methodology, and relevance.

• Reject evidence not grounded in established or impartial knowledge.

Yet, judges still rely heavily on advocates, raising concerns about inconsistency and bias in family court decisions — especially when litigants are unrepresented.

9. Financial Abuse and Systemic Inequality

The economic imbalance between separating parties often extends into the courtroom:-

• One party may leave with a mortgage-free home, pension, and assets.

• The other — often the primary carer — may exit with nothing, relying on inconsistent child maintenance and unable to afford legal representation.

This disparity can drive further litigation, where revenge-based claims, hidden assets, or unpaid maintenance deepen the imbalance.

Such tactics are a form of coercive control, draining time, money, and emotional energy — often with little intervention by the court to halt these patterns.

10. Are the Family Courts Fit for Purpose?

The family court system was established to uphold the welfare of children. But systemic challenges are undermining that goal.

Key issues include:-

• Lack of enforcement mechanisms for false claims or vexatious litigation.

• Abusers exploiting legal loopholes to maintain control.

• Insufficient training in coercive control and trauma-informed practice.

• Legal aid restrictions that silence vulnerable victims.

A Call for Reform

To protect children and survivors:-

• Family courts must recognise coercive control as a severe form of domestic abuse.

• Court misuse must carry penalties, including cost orders or suspended applications.

• Maintenance and financial proceedings must be coordinated to prevent exploitation.

• Judicial and CAFCASS training should reflect the realities of abuse, not just legal theory.

Conclusion: The Children Must Come First

The Children Act 1989 prioritised child welfare. That principle must remain at the heart of every case — especially where emotional, financial, or psychological abuse is present.

Family courts were not designed to be battlegrounds for control. They must evolve to close loopholes, end post-separation abuse, and protect the innocent.

It’s not enough to say the system is doing its best — when the stakes are this high, it must do better.

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Deanna Newell Family Law

Advocacy for truth-tellers, survivors, and the children who deserve better