Taking a baby away from its mother must be the most draconian power a state can exercise. And yet 2,447 newborns were taken into care in England alone during 2016/17 – an increase of 136% over nine years.

Joshua Rozenberg

Joshua Rozenberg

These figures were compiled by the Children and Family Court Advisory and Support Service (Cafcass) and published in October by the nascent Nuffield Family Justice Observatory. I cannot imagine what it must be like for a mother to be separated from her child within days or sometimes hours of birth. But nearly half these mothers had previously had a child or children taken into care by a local authority because the child was suffering, or was likely to suffer, serious harm.

Of course, a care or supervision order under section 31 of the Children Act 1989 does not necessarily lead to the child’s permanent removal. But any period of separation must damage the bond between mother and child.

Cases involving newborns put particular pressure on the courts, because they must be handled on an urgent and unplanned basis. The Children Act was not drafted with unborn children in mind and so legal proceedings cannot be started until the mother gives birth. But Sir Andrew McFarlane, president of the High Court Family Division, said last month that ‘the vast majority of such cases involve the birth of a further child to a mother whose circumstances are already well known to the authorities’. He suggested a change in the law to create a prospective pre-birth jurisdiction in appropriate cases.

It is not just newborns who are putting pressure on the family courts. Three years ago, there were more than 11,000 applications for care orders in England. For each of the past two years, the annual figure has exceeded 14,000. In September 2016, Sir James Munby, McFarlane’s predecessor, saw this ‘seemingly relentless rise’ as a crisis for which the courts were ill-prepared.

Munby did not believe that the abuse or neglect of children had increased by 25%, as the figures might suggest. That left two possibilities for a cause: either local authorities were becoming more adept at identifying mistreatment or they were lowering the threshold for intervention.

Sir Andrew McFarlane

Sir Andrew McFarlane

Munby’s concerns persuaded the Nuffield Foundation to support an inquiry by the Family Rights Group, whose findings were published in June as the Care Crisis Review. It found ‘many overlapping factors contributing to the rise in care proceedings’ which meant there was ‘no single solution’ to the problem.

Since taking over as president in the summer, McFarlane has begun an ambitious series of visits to all 42 court centres in England and Wales that have a designated family judge. He says his ‘number one priority is to understand, not only this unprecedented rise in the number of care cases, but also the current high volume of private law children cases where parents, many of them now acting as litigants-in-person, seek orders from the court as to the arrangements for their children’.

Lawyers and judges simply cannot cope. ‘I am genuinely concerned about the long-term well-being of all those who are over-working at this high and unsustainable level,’ McFarlane told the Association of Lawyers for Children last month. Some individuals have already collapsed under what one judge described as ‘remorseless and relentless’ pressure.

It seemed to McFarlane that local authorities were seeking care or supervision orders from the courts in cases that would previously have been handled without judicial intervention. Isabelle Trowler, the government’s chief social worker for children and families, recently recommended that more cases should be diverted from the courts. She thought the vast majority of decisions to initiate care proceedings were reasonable, but questioned whether all were necessary. McFarlane said this chimed with his own developing thoughts.

Trowler’s report explains how her former social services colleagues have gone astray. Rather than use the pre-proceedings period as a final warning to parents and a last chance to prevent children getting caught up in the judicial system, some social workers were treating it as a late stage on a conveyor belt to court. As a result, said McFarlane, some applications for care orders were ill-prepared – creating even more work for the courts – or unjustified, meaning that the opportunity of diverting a family away from the courts was missed.

The answer to this problem is as easy to say as it is difficult to do: social workers should be doing more to keep care cases out of court. Some local authorities are good at this and the Family Rights Group report shows how it can be done. But others – perhaps hard-pressed financially, perhaps risk-averse – seem too willing to pass the buck. If they do not take responsibility for cases that may not require judicial intervention, the courts will no longer be able to cope with those that undoubtedly do.