Jade was summoned to court straight after giving birth and told that she would not be allowed to keep her newborn daughter. When she returned to her hospital room her baby had already been taken away; she watched a social worker putting her baby in a car from her window.
Separating a mother and baby at birth is perhaps the most brutal of state interventions. It should never be undertaken lightly, and one hopes it would rarely be necessary.
Yet it was not until researchers commissioned by Nuffield Family Justice Observatory began analysing administrative data in 2018 that we learnt that about 2,900 newborn babies are removed each year in England, and that for no known reason this number had increased by 20 per cent in less than a decade.
For the judges deciding these cases in the family court this glimpse of what is happening in the wider system, and how their judgments fit into national trends, is rare. Judges, and most professionals working in and around family courts — including barristers, solicitors and social workers — see only the families who come before them. Life-changing and often distressing decisions are made every day about particular cases but with little wider contextual information.
The question of transparency has vexed the family court for decades as it is an area that many view as shrouded in too much secrecy. Last week the outcome of a transparency review was published by Sir Andrew McFarlane, the president of the family division of the High Court in England and Wales. He noted that a genuine increase in transparency requires a cultural shift for the family judiciary.
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The review focused on the arrangements that regulate the access journalists and the public have to family court proceedings and the reporting of information heard in court. It asked whether the line had been correctly drawn between the need for confidentiality for families and children whose lives are exposed in the courtroom, and the need for accountability and public confidence in the work of the family court. Rightly, it has recognised that a balance can be struck but that we need to move towards greater openness.
The review notes that allowing reporting in court is only one route to improving openness; the family justice system is also too opaque to those who work within it. Judges tasked with making the most delicate of decisions are operating in the dark, with little access to national data and research evidence, and little ability to assess the long-term outcomes of their judgments.
It is striking how far the family justice system is behind other public systems in this regard. For example, the health service has far more sophisticated systems for collating and sharing data and research to help professionals to better understand the context in which they are making decisions. The principal family court data available, collected by HM Courts and Tribunal Service, is almost exclusively focused on monitoring the administration of the system — it tells us very little about the experiences of children and families.
The potential is clear. Now, thanks to recent data analysis, we have a better understanding of cases like Jade’s. We have been able to explore the data and see that the number of babies being removed from their parents is rising more dramatically in certain areas of the country. And by comparing areas with similar demographic profiles, we can interrogate whether there are inconsistencies in practice at a local level, in how much support there is for families, or how decisions are being made by professionals.
This kind of insight does not just rely on information collected by the family courts. Thanks to advances in data science, we have the means to link data already being collected by different agencies — such as health, education and children’s services — in ways that guarantee anonymity and security. This can transform our understanding of the circumstances of the children and families who come into contact with family courts.
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Anonymised GP and hospital records reveal that pregnant women who are at risk of having their babies removed are far more likely to have had mental health problems compared with other pregnant women. Further administrative data shows that almost half of newborn babies in care proceedings are born to mothers whose previous children had been subject to proceedings.
These details allow us to take practical action to address the issues, shaping support to meet families’ needs. We can begin to understand what happens to families after decisions have been made about them.
Ultimately, family judges have to be satisfied that the decisions they make are in the best interests of children. But to do that we need greater transparency. This is not only about ensuring public confidence in the courts. It is also about ensuring that judges, and all who determine the futures of vulnerable children and families, are not having to make decisions in the dark.
Sir James Munby is the chairman of the Nuffield Family Justice Observatory
