Uncertainty, Incoherence, Bias and Bewilderment in The Family Courts

In a scathing attack on the family courts Dina Rabinovitch in The Guardian on 9 January accused family judges of being so-out-touch that Dickens would have considered them too broadly sketched to be creditable even as satire. She alleges that under the protection of the privacy of hearings in chambers wildly uncertain outcomes are the norm, leading to a chaotic justice system in which an individual judge’s rulings hold sway, without any reference to precedent, with judges making completely different decisions based on often identical facts. She cites the President having stated in a famous judgment that a shared residence order where there was acrimony between the parents would require exceptional circumstances and her judgment in the Court of Appeal in November ( In re D, see page 18 of this issue) that despite considerable animosity between the parents there should be a shared residence order. It is not only the judiciary that comes under fire: ‘The judges based their decisions on reports by court welfare officers, a body of people untrained in family dynamics and drawn from, of all places, the criminal probation services’. The result, the author alleges, is an atmosphere of uncertainty and bewilderment. Solicitors and barristers will advise their clients not to go to court, to come to any agreement whatsoever rather than risk facing the uncertain nature of a family judge’s decision-making. She advocates the publishing of all family judges’ decisions which could then be broken down into categories, identifying how often residence is awarded to mothers and how often to fathers. Another category might show how many years it takes for a non-resident parent to attain overnight contact, and the percentage of cases in which contact is opposed where the non-resident parent still wins alternate week-end contact – and how long that contact took to be established. If this were done those coming before the family courts – and indeed those practising within them – could begin to have some sense of what is going on. Justice would be served, injustice might well be exposed, but without the risk of compromising anybody’s privacy if the statistics were compiled and published with complete anonymity.