History
Prior to the ''Guardianship of Infants Act 1925'' in the case of divorce to married parents the father of a child was given custody over a child. The guardianship act gave courts the ability to rule on some disputes about the upbringing of a child. The ''Legitimacy Act 1959'' gave courts the ability to rule on children born to unmarried parents. The ''Matrimonial Proceedings Act 1958'' required all divorcing parents to file a statement of arrangments for the upbringing of a child which a court approved.The foundation of current family law in England and Wales was the Children Act 1989. The Children Act introduced a no order principle, where no order will be made unless it improves the welfare of a child. The Legal Aid, Sentencing and Punishment of Offenders Act 2012, LASPO, reduced funding for family courts. An earlier report in 2010 had argued that legal aid funding lead to drawn out cases. By April 2017 the number of cases where both parties did not have legal representation had increased to 36% from 19% in 2013.Transparency
Courts in England and Wales have a principle of open justice where hearings are held in public but family courts are held in private because it has been felt that this protects children. Concerns have been expressed in some sections of the media about a lack of accountability in the family courts. Some members of the Judiciary called for more people to have access to family courts. Certain judgments from the family are made public with some being available on BAILII.Litigants in person
Legal aid is generally not available for decisions involving child arrangements, which leads to parents representing themselves in court. Ligitants representing themselves cause delays in cases when compared to those who are represented by a lawyer. There are examples of the judiciary having to research law itself because the litigant does not present complex legal arguments well. There are cases where the behaviour of a litigator representing themselves in an emotional charged setting have led judges to make negative conclusions about themselves relevant to the case. Legal aid is available for those who make accusations of domestic abuse or child abuse but not for those accused of said abuse. Parents for whom there is no evidence of abuse are able to apply to the court for a non-molestation order and use this as evidence for legal aid and are abe to apply for means-tested legal aid to apply for this non-molestation order. Protective injunctions such as a non-molestation are the most common evidence given for domestic abuse. Individuals are able to apply for non-molestation orders without informing the party to whom the order applies but those responding to the order do not have access to legal aid.Use of expert witnesses and research
In research internationally, scholars express fear about the misue of social science literature as evidence in trials. Scholars argue that research may be used selectively to support arguments specific to a case and lawyers may lack the knowledge to cross-examine researchers. Some Judges were found to distrust evidence given working for local authorities and there were concerns about the lack of expertise. A scoping review in 2016 looked at attitudes to research in courts. Judges would try to keep up with social science research in general tems but would not introduce such evidence themselves to court relying on the advocates in the case to do so. Judges and lawyers are concerned about how authoritative research is and whether it includes a consideration of contradictory research. There is concern that research commissioned by Government Departments may be biased. In 2021, the President of the Family Division issued a memorandum regarding the critera for use ofParental alienation
In 2017 and 2018 petitions were arranged by pressure groups calling for the legislatures of England and Wales to recognise parental alienation, where one parent attempts to cause a child have negative feelings towards their other parent. The Welsh branch CAFCASS, commissioned an independent literature review. While parental alienation is distinguished from cases where a parents own action causes a child to dislike them such as poor parenting or domestic abuse, researchers have found that claims of parental alienation and domestic abuse can occur at the same time. The research on parental alienation was found to often use self-report and retrospective reviews making identifyingReferences
{{reflist English law