The Times is running a campaign for greater openness in the family justice system, which in many respects I support. The series of articles by Camilla Cavendish running this past week certainly make interesting reading.

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In response comes Sir Mark Potter’s recent article in The Times  – it makes a lot of sense to me – but BOY has it generated a lot of comments! Many of these appear to be from unhappy litigants (mostly parents I would guess) who have had adverse experiences in the family courts, and sadly many of them also appear to be very muddled about how judges and lawyers get paid – there are several commenters who appear to be under the misapprehension that somehow judges or lawyers benefit financially depending on the outcome of cases, in particular that lawyers and judges get paid more when children are removed. That betrays the depths of cynicism which exists about the legal system in this area. Trust is really at a low point. 

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The tendencies in this area are: firstly to accept all accounts of adverse experience or miscarriage of justice in the family justice system as reliable and accurate in spite of the fact that they are by their nature going to be partial and highly likely to lack expertise or objectivity; and secondly to attribute all so-called miscarriages of justice to corruption, conspiracy or malice.

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It ought of course to be obvious that so far as the privacy of family proceedings goes it cuts both ways – jsut as miscarriages of justice are not automatically exposed to the oxygen of publicity, inaccurate accounts about the apparent failings of the system or the individuals who are work in it cannot be corrected. If one could jettison the welfare of the child and publish everything and be damned, then no doubt the public would see mistakes and miscarriages of justice come to light, but also many of the inaccurate accounts of what has transpired in particular cases would cease to be reported by journalists as if they were verifiable fact or a complete account of a case.

The Times it seems to me is guilty of falling into this trap – whilst on the one hand saying that miscarriages of justice cannot be properly exposed because of the secrecy of the family justice system, the basic premise of the campaign is that there are miscarriages which need to be exposed – an assertion which is presently difficult to challenge or assess. Of course in the best run system miscarriages will occur and undoubtedly they occur in our family courts, but the insinuation is that things are systematically very wrong – and this is bound to do terrible and long lasting damage to public confidence in the judicial system. The starting point seems to be that the family justice system is guilty until proven innocent – I’m not sure that’s journalistically terribly rigorous.

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Whilst the only way to diffuse this cynicism and the constant accusations of conspiracy or corruption is to increase openness, I am in agreement with the President – the privacy of children must still also be preserved. The publication of anonymised judgments seems to me to strike the right balance between the competing interests – the suggestions by some that the evidence upon which the decisions were made should also be made publicly available are practically unworkable and would do nothing to advance the principle of open justice nor to enhance the welfare of the children involved.