Ethnicity in the family justice system

Resolution kindly invited Nuffield Family Justice Observatory (Nuffield FJO) to attend its national conference in May and provide a workshop on what is known about ethnicity in the family justice system.

There is growing recognition that there are deep inequalities in children’s social care. Research suggests that children from Black and some Mixed or multiple ethnic groups are most likely to be in care, while children from Asian ethnic groups are the least likely. White children sit somewhere in the middle of the two.

For family justice to be just and equal, it is important to expose, address and act on any disparities faced by families. And if progress is to be made, it is essential for practitioners and policymakers working in this area to understand the factors that shape inequalities.

But research on ethnic disparities within the family justice system remains relatively scarce, and studies have focused almost entirely on social care intervention, with few examining care proceedings. We know next to nothing about the part played by the family court and judiciary – and, crucially, whether they amplify existing inequalities within children’s social care or mirror them.

Our Resolution National Conference workshop largely focused on Nuffield FJO’s current research on ethnicity; data gaps and future research requirements; and our work supporting an anti-racist family court initiative. The workshop took place on the morning after the conference’s black-tie dinner and dance, but if it had been a late night for the participants, they didn’t show it – they arrived enthused and highly engaged in our session (and in the smorgasbord of other workshops on offer).

We began the workshop by asking attendees whether they agreed or disagreed with four different statements. The statements were purposefully provocative, and did not reflect the nuances found in the research. The intention was to encourage attendees to reflect on their own assumptions before considering the research evidence. They were:

1. Black and other racialised minority groups have higher levels of intervention by way of final orders made in the court than their White counterparts.
2. Black and other racialised minorities’ disparity in outcomes starts at the door of children’s services.
3. The family court cannot be a corrective for the societal failures of racial inequality.
4. The family court provides equal treatment to families journeying through family proceedings.

As one attendee pointed out, the room was split, with participants disagreeing on various points – but we navigated this in line with Nuffield FJO’s spirit of promoting problem solving and collaboration.

A summary of our previously published research on ethnic diversity in the family justice system in England and Wales was then provided. The analysis showed disparities between the proportions of different ethnic groups appearing in both public and private law proceedings compared to the general population – echoing previous studies – as well as variation in diversity across regions.

The presentation led to very interesting and thoughtful reflections on the key findings. There was particular concern about the over- and under-representation of Black and other racialised minoritised groups in private and public law. Deprivation, income inequality and culturally uninformed decision-making across the system (legal, social and judicial) was seen as placing these groups at a further disadvantage.

Attendees certainly felt that with its national and regional overview, the research raised serious social and access to justice questions that are worth pursuing.

A key question was raised as to whether the changes to legal aid brought about by LASPO – which, according to Law Society figures (2023) have resulted in a reduction in initial help (falling from almost a million in 2009/10 to just 130,000 in 2021/22) – are having a disproportionate discriminatory impact on Black and other racialised minorities and whether an Equality Act assessment had been undertaken in the last 10 years of the impact of this legislation on vulnerable and protected groups.

We then moved on to a presentation and close examination of Nuffield FJO’s newly published “hot off the press” briefing paper on the ethnicity of children in care and supervision proceedings in England – it was our first formal presentation of the research to external stakeholders.

The paper is based on new research carried out in collaboration with the Centre for Child and Family Justice Research at Lancaster University. It aims to increase awareness of the inequalities that exist across ethnic groups in the family justice system, and how we can use data to monitor and measure them. As this is recently published research, with new and significant findings, we will, for the benefit of readers, summarise the information that was shared.

Using population-level data from Cafcass England, held in the Secure Anonymised Information Linkage (SAIL) databank at Swansea University, the study examined differences in the demographic characteristics of children from different ethnic groups who appeared in care proceedings for the first time between 2016/17 and 2021/22 (and where the case had concluded by the end of the observation period) – this comprised 105,334 children. It has only recently been possible to carry out this type of analysis, as information on ethnicity was not routinely collected in Cafcass data prior to 2017.

The research also analysed the legal outcomes for the children; how long it took to get to a final order; and whether their parents returned to court with a new child after the final order was made.

One of the key findings in terms of demographic characteristics was that Black and Asian children are, on average, older than White and Mixed or multiple ethnicity children upon entering care proceedings for the first time. The large disparities in age are striking, but we do not yet have reliable evidence to ascertain if the state is intervening too early or too late.

Black and Asian children in the study also lived within more deprived local authorities, although the deprivation levels in the local neighbourhoods where they were living were similar to those of White children and children from Mixed or multiple ethnic groups in the study.

In terms of legal orders, the research shows Black and Asian children are less likely to be on an adoption/placement order than children from White and Mixed or multiple ethnic groups. The likelihood of being placed for adoption generally depends on age, being in care proceedings with a sibling and location (among other factors) – however, we looked at various sub-samples for different ages, sibling groups and regions, and the differences in order outcomes still remained – suggesting ethnic disparities in adoption/placement orders do not appear to be related to demographic differences.

On average, Black and Asian children also receive legal orders that we class as “less interventionist” than their White counterparts. Adoption is the most intrusive form of state intervention in family life, and therefore this is defined as the most interventionist – followed by secure accommodation/deprivation of liberty (DoL) orders, care orders, special guardianship orders (SGOs), child arrangements orders, supervision orders, other orders, and no order. Legal orders made for Black and Asian children are more likely to be at the lower end of the scale. They are both more likely to have a supervision order and to not receive an order than children who are White or from Mixed or multiple ethnic groups. Black children are less likely to have a legal order for an SGO than White and Mixed or multiple ethnicity children. Asian children are even less likely to have an order for an SGO.

An exception to this finding is secure accommodation/DoL orders. Black and Asian children have the highest proportion of these orders: 1.3 per cent of both Black and Asian children in the study were on a secure accommodation/DoL order compared to 0.5 per cent of White children and 0.6 per cent of Mixed or multiple ethnicity children. While we acknowledge the sample size is small, it indicates that some racially minoritised groups are more likely to be subject to these orders. Recent Nuffield FJO analysis of DoL applications also found similar suggestive evidence.

Cases involving Black and Asian children also took longer to conclude than cases for White children. A further finding was that White and Mixed children are more likely to have at least one parent who comes back to court with a new child, compared to children of Black and Asian ethnicity.

The presentation of these findings sparked an enriched and passionate debate about the differences in outcomes for some ethnic minority children. There was real concern about the picture of adoption and Black children and the over-representation of Black and Asian children in secure accommodation/DoL orders. There was also a discussion about how well, and how appropriately, these children are being represented, taking into account all their identity and cultural needs.

Attendees then reflected on how factors such as the age of children when they enter care proceedings and the duration of cases might play out on their trajectory through proceedings and order outcomes.

The limitations of the data were also addressed. For example, the study only captures children in court – we don’t know anything about their previous interactions with children’s social care. We also don’t know whether the orders granted were what the local authorities applied for/to what extent the legal order made by the judge differed from the order applied for – and whether this differs by ethnicity.

We are also missing evidence on care orders and placements – that is, whether children are placed in the care of family and friends or returned to their parents’ care – which makes the interpretation of differences in legal orders by ethnicity challenging. Due to the coding in Cafcass data, it is impossible to distinguish between where, and with whom, children will be living when they are placed on a care order. Cafcass is making improvements to its data collection and progress has certainly been made, but it remains a challenge to draw robust conclusions and an understanding of how the placement of children differs by ethnicity. Of course, this is a limitation of using administrative data (which is primarily designed for the purpose of operations) for research purposes.

There was definite agreement in the workshop that a basic next step would be to at least ensure that the wide range of applications issued in care proceedings record the ethnicity of the parties. There is, however, a need to think about which other sources of data and data linkages are necessary in order to further explore the issues raised. It is also worth mentioning that while the quality and completeness of data on ethnicity of parents and children in Wales is much improved, unfortunately it does not enable us to replicate the analysis for Welsh care proceedings.

The research has provided a basis for future work, with many questions remaining unanswered and under-investigated. We covered some of the areas that require further analysis in the workshop, and, encouragingly, many of the practice reflections tallied with the questions we believe need answering in future studies.

Research on the factors that drive the different experiences of children and families in the family justice system, and the reasons behind variations in age and final legal outcomes for children of different ethnicities (including how interventionalist they are and how long cases take to conclude) is particularly needed.

We also believe future work should investigate the impact of disparities on children, their families and communities (including what happens to them following the order); whether individual or institutional biases are affecting decision-making and outcomes; and whether there is any evidence of adultification bias in the family court as there is in the criminal justice system. Research suggests that Black children are most likely to experience adultification bias – when notions of innocence and vulnerability are displaced by notions of responsibility and culpability – resulting in their rights being diminished or ignored and hindering child protection responses.

In the data used in our study, children’s ethnicity was coded into five high-level ethnic group categories used in the 2021 census in England – Asian or Asian British; Black African, Caribbean or Black British; Mixed or multiple ethnic groups; White; and Other ethnic group. More in-depth analysis that goes beyond these categories is needed. For example, it’s important to ascertain whether intervention rates differ between Black African and Black Caribbean ethnic groups.

We will be presenting and discussing this research and our recommendations for future work in a webinar being held on 21 June 2023, 4.30-5.30pm. The presentation will be followed by a panel discussion – where will be joined by Bibi Badejo, a barrister at Four Brick Court; His Honour Judge Bedford, the Designated Family Judge for Sussex; and Millie Kerr, Anti-Racist Lead Practitioner at Brighton & Hove City Council. By the time you read this it may be too late, but if not, you can register and submit questions for the panel on the Nuffield website.

During the workshop, we also discussed the Anti-Racist Family Justice Network, which Nuffield FJO convenes. The initiative was inspired by the work of The Howard League and the anti-racist work of Sussex QC and Sussex LFJB, which produced an Anti-Racist Family Court Statement in 2021, revised in 2022 with input from the FJYPB. Nuffield FJO is bringing together a wide coalition of groups and individuals with a focus on the promotion of anti-racist initiatives across the family justice system, convening space for organisations and practitioners to promote anti-racist practice in the family court and hold people to account to act.

Among the workshop attendees, there was clear agreement that despite improvements in how the family justice system is attempting to address questions of ethnicity and culture and disadvantage, it is not providing equal treatment for all families. Participants felt the drivers and factors for the differences highlighted by the research and the impacts of disparities needed to be grappled with and understood by lawyers and the judiciary as a matter of urgency. We are hugely encouraged that attendees left the workshop with a determination to share their learning and to seek opportunities for wider dissemination of the research in their regions.

We sincerely thank Resolution for the opportunity to host this vitally important workshop.

For further information, please visit www.nuffieldfjo.org.uk.