Justice for family law

The most corrupt legal entity in the democratic world may be about to change. I refer to the family law system of England and Wales, of which I have some personal experience. It is no small thing to call it more corrupt than the Irish family law system, but I don't lightly describe it in these terms. The prospect of a change arises from a Court of Appeal ruling last week ending the automatic ban in England and Wales on identifying children involved in family court proceedings. The court ruled that a father who spent more than three years in dispute with his former wife over contact with their now 10-year-old daughter should have the right to debate issues about the family justice system with reference to his child's case. A campaigner for fathers' rights and a volunteer adviser to other fathers, he had been silenced by the usual blanket injunction, which would have remained until his daughter's 18th birthday. Henceforth the issue of publicity will be a matter for judges in individual cases, who will balance whether any pressing need for anonymity should outweigh the right to freedom of expression.

Publicity will not be allowed where it could harm or cause distress to a child. The rationale offered for this development is that it will disperse the "slur" levelled at the family court system, particularly by fathers who have been "disappeared" from their children's lives by the arbitrary and summary mechanisms available under this system of "justice". Politicians and senior family judges believe that greater openness will help to "boost public confidence" and dispel the impression of decisions taken behind closed doors by unaccountable judges. The implication of these responses is that the charges levelled against the family law system are false and that greater openness will help to demonstrate this.

Oddly enough, this is probably what will occur. If the actual workings and process of the family court systems of Britain, Ireland and many other western countries were subjected to the full glare of publicity, the result would be a total collapse of public faith in justice and the law.

Barbara Kay recently wrote in the (US) National Post: "At the crux of family law's failure is a cynical tolerance for erratic courtroom decisions, with unaccountable judges routinely winking at perjury and child-access obstruction – jail-worthy misdemeanours acknowledged by court players and observers to be systemically rampant. Indeed, one lawyer confided his intention to abandon family law, as he becomes physically ill anticipating the arbitrarily plucked ruling awaiting his male clients."

This is a cogent summary of what happens in most family law jurisdictions. But it would be a mistake to imagine that what will henceforth happen in England and Wales is that such abuses will for the first time become visible to the public gaze. Assuming that the system does not find a way to nullify the new provision, the most likely outcome is that family law practitioners – lawyers, "expert" witnesses and judges – will have to begin approaching their work in the same way as in any other kind of case. Child psychiatrists, for example, will have to assume that they will no longer get away with a farrago of mendacious nonsense to be offered for rubber-stamping to a judge seeking a piece of paper to get him off the hook and will now have to compile reports that will make reasonable sense to public opinion. The most likely result is that the rancid corruption of the system will simply fade away, as though it had never occurred. They will say then, of course, that those who had levelled accusations of abuse and criminality have been engaging in monumental defamations of the system and its practitioners.

But it will matter little what they say when their reign of horror has been ended and justice has emerged from its long night.