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Family Justice and Race: the need for a fundamental review?

Rebekah Wilson, barrister, of Garden Court Chambers asks whether it is time for a review of the lack of racial diversity in the family justice system and of its consequences.

Rebekah Wilson, barrister, Garden Court Chambers

Rebekah Wilson, barrister, Garden Court Chambers

On the 31 January 2016 the Prime Minister announced a 'review of racial bias and BAME  representation in the Criminal Justice System'.1 The Prime Minister said: "we need to ask difficult questions about whether the system treats people  differently based on race."  The review was triggered by extremely worrying facts about the experience of black people in the criminal justice system, such as higher custodial sentences and over-representation in custody.   Family justice does not operate in a vacuum.   There are some troubling facts that suggest family justice and the children it serves are equally deserving and in need of a fundamental review of  any racial bias in the family justice system.

The 2% of adoptions and those 'harder to place' because of their race
In the public law domain minority ethnic groups appear to be overrepresented in the looked after population.  The majority of looked after children (75%) are in foster care placements.   Around 5% of the child population of Great Britain are from 'Black or Black British' and 'Mixed Groups' yet they make up approximately 9% and 7% respectively of the looked after population with 'White' making up 77% (House of Commons Briefing paper 04470, 5/10/15).

Several news stories and research projects have pointed out the stark concerns for BAME children in care:

"Black youngsters under five are forced to wait in care homes and with foster parents for an average of 1,300 days before they can legally belong to another family - compared to just 955 days for white or Asian children. 

The data also shows children born to white parents are three times more likely to be adopted than black children.

Black children in care have to wait longer than white children to be adopted new figures show. The inequalities were revealed by The Times and indicate unofficial racial prejudice operating within the care and adoption system, with young black children the victims." (Daily Mail)

Black children remain 'harder to place'.  83% (4,400) of looked after children adopted during the year ending 31st March 2015 were white, 11% (580) were of mixed racial background and 2% (120) were Black or Black British (CoramBAAF).

There is limited research in the area of race and family justice. But such as is exists is very troubling. An excellent paper in 2003  highlighted the need for more research to bring a "cultural lens to the work of the family courts" (Significant harm: child protection litigation in a multi-cultural setting, by Julia Brophy, Jagbir Jhutti-Johal and Charlie Owen, Research Series DCA 1/03).  That report recommended, inter alia, ethnic monitoring of care applications and a change to the welfare checklist in the Children Act 1989 to improve the focus and understanding of cultural diversity. 

In 2005 further in-depth research for the Department for Constitutional Affairs again flagged the immediate priority of ethnic monitoring of applications in the family justice system (Minority ethnic parents, their solicitors and child protection litigation, by Julia Brophy, Jagbir Jhutti-Johal and Eleanor McDonald, Research Series DCA 5/05).  That research found that 'the studies indicate there is room for a better balance to be struck in understanding and addressing issues of cultural, religious and linguistic diversity' (p225).  

It wasn't until 2015 that CAFCASS started to monitor ethnic backgrounds of children in public law care proceedings.  But now they do, more informed research could be done.

The fact that 2% of black children are adopted and that such children are described as 'harder to place' based only on their race is surely enough on its own to demand a review. 

Who is judging the best interests of the child? Family judges and diversity
Looking at London and the South East (the most racially diverse part of the UK) there are two full time circuit judges who are from a BAME group.  More worryingly the future does not look good.  Of the 10 recent January 2016 recorder appointments to London and the South East all were white.  There were 173 applicants who described themselves as BAME for those posts from a total of 1,143 applicants.

Does it matter if there are no black, Asian or minority ethnic judges judging family cases?  Given the expressed commitment of the Judicial Appointments Commission (JAC) to a diverse judiciary, then of course the answer must be yes.

It is hard to improve on the words of Sir Geoffrey Bindman QC and Karon Monaghan QC in their report Judicial Diversity: Accelerating Change (Novemeber 2014):

"The near absence of women and Black, Asian and minority ethnic judges in the senior judiciary, is no longer tolerable.  It undermines the democratic legitimacy of our legal system; it demonstrates a denial of fair and equal opportunities to members of underrepresented groups, and the diversity deficit weakens the quality of justice." 

The House of Lords Constitution Select Committee's report on Judicial Appointments (2012) noted this last point when it said:

"Judging is a complex activity: it is necessary for judges to understand the wide array of concerns and experiences of those appearing before them.[120] A more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself."

More starkly, US research has shown that the race of a trial judge can have "very large effects on his or her decision making".  A detailed study by Christina Boyd of the University of Georgia found that in cases directly involving diversity (such as discrimination cases) a black judge was more likely to act favourably to the black plaintiff (Representation on the Courts? The Effects of Trial Judges, Sex and Race C Boyd UCG 2015).   

Nobody would argue that favouritism of this sort is conscious but the risk had already been identified (in an employment law context) by Lord Nicolls in Swiggs and Others v Nagarajan [1999] UKHL 36 where he said:

"I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated."

Is family law infected by such 'subconscious motivation' on the parts of the players within the family law system, whether they be judges, advocates or social workers. The fact is that we do not know. Accordingly, we need to have our own research in the UK for those black children who are not adopted, subject to care and placement orders and remaining without permanence.

Where there is case law …
There are troublingly few cases which report directly on issues of cultural needs and race.  This may be because, as some of the research set out above argues, some courts and professionals are not always consistently alive to the issues (see in particular 2005 DCA research).

There is however one case which alone underlines  the need for a fundamental review,  Re X, Y and Z children (treatment of a family of African heritage) 2014 WL 4636866.  The case was heard at Chelmsford County Court before Her Honour Judge Roberts and provides shocking reading. In summary, it concerned three children whose mother was originally from Africa.  She had suffered the loss of two other children there and at some point returned there to their graves.  At times her children had been neglected and left alone.  She had agreed to their accommodation in care and the local authority then sought their permanent removal.   The judge did not approve of that care plan making some devastating observations in her judgment,

"My strong impression is that this family has not been treated fairly throughout this process and my strong impression is that they would have been treated differently if they had been white and the mother British bornThere has been no consideration of M's different culture background or that of her children.  The level of ignorance displayed has been shocking…. She has been treated with unreasonable and undue suspicion about irrelevant matters such as where she earns her money and about her family in Country L.  I also do not think a white British mother who has had two of her daughters die in this country within two years of each other would have been treated with the very limited compassion this mother has received.  I have noted a lack of respect for this mother and a failure to treat her properly in these proceedings." (para 13).

She went on to consider the characteristics of the children:

"There is strong evidence that child X no longer has pride in her colour or ethnicity; she wishes she had a lighter skin….It is unfortunately the case that black children generally do not do well in the care system and where their ethnicity is not properly recognized the outcome is likely to be worse." (para 44)

Looking holistically at race, justice and all we do know, it would be impossible to conclude this is a one-off situation.  More likely there are not many HHJ Roberts who focus on the issue so ably and do not shy away from it.

In conclusion
In the week in which the government has launched an ovedue consultation into racial bias in the criminal justice system, it is equally imperative that there is a thorough review of the lack of diversity in the family justice system and the potential existence of racial bias. However, even if such a review is not forthcoming in the near future, all family practitioners should be well versed not only with their own professional codes of conduct which address equality issues but also with the Equality Act 2010 itself.   For the avoidance of doubt it is unlawful to treat someone less favorably because of a protected characteristic, such as a person's race or religion, except in very limited situations (S13 EA 2010).  And there is an equality duty on public bodies:

"149  Public sector equality duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1)."

Family justice presents with similarly troubling facts as those identified in the criminal justice system.   These may be for diverse and complex reasons but the difficulties in assessing those reasons can be no bar to trying.  Children in family cases deserve at least a review too.  And in the spirit of the Children Act, that should happen without delay and at least start within 26 weeks.


[1] I adopt and use this acronym 'BAME',  black, Asian and ethnic minority for ease of reference recognizing that persons classed as falling in this group, globally speaking, are not in the minority.