Family law in a post-truth world

Family Law|October 24th 2016

It is often said these days that we live in a post-truth world, a world where the truth doesn’t matter, in which politicians and others tell us whatever they wish, irrespective of the facts. If you have a point to make that contradicts the evidence, then simply tell your listeners that the time has come to stop being told what to think by ‘so-called experts’.

I’m not sure that politicians these days are any more dishonest than they ever were, but the advent of the internet has certainly provided many non-experts with a means of putting across their fact-free ideas to a large audience of like-minded people, anxious to hear exactly what they want to hear, and deaf to all else. In this way the expert can be drowned out in a cacophony of populist noise and nonsense.

And so, sadly, it can be with the family justice system. I see many examples, but a particularly egregious one popped up on Twitter (my thanks to @SVPhillimore) the other day, publicising a speech to be given by a certain gentleman at a certain event next month with the blurb: “British courts are out of control and using secret closed courts or ‘star chambers’ to steal children property businesses and elderly people…“. With no irony (or hyphen) the strapline was “ReAsserting the Rule of Law“.

Now, just how many things can be wrong with such a short piece of writing?

Let’s start with the first word, ‘British’. What exactly is a ‘British court’? There is no such thing. Does the writer not know, for example, that Scotland has its own, separate, legal system? OK, I suppose the Supreme Court ‘covers’ the United Kingdom, but even that isn’t the same as ‘Britain’. It doesn’t inspire confidence in the speaker if there is such an obvious error relating to the very thing he is intending to speak about.

Then we come to the word ‘secret’, a particular favourite with the family justice system truth-deniers. As I have explained here previously, the family courts are not ‘secret’. They may be ‘private’, but there is a very big difference between the two things. In any event, these days more than ever the family courts operate in an open manner, with many hearings accessible and many judgments published for all to see. To describe the courts as ‘closed’ is simply to mislead.

And then we have the reference to ‘star chambers’, another common motif of family justice system truth denial. Do the people who use this term actually know where it comes from? I certainly doubt that their listeners do. The Court of Star Chamber (probably so called because it sat in a room in the Palace of Westminster that had a star pattern on the ceiling) was, as I understand it, actually an open public court, that was once well regarded, before it was abused by Charles I. Whatever, the term ‘star chamber’ is used in a pejorative sense to describe a court that operates without due process, or in secret. That is not an accurate description of the family court.

It may be noted that the blurb does not specifically name the family court. However, the mention of stealing children is clearly a reference to public law child care proceedings, and the mention of ‘elderly people’ obviously refers to the work of the Court of Protection (‘property’ may refer to divorce settlements, but I’m not sure what court work ‘businesses’ refers to). The indiscriminate use of the emotive word ‘steal’, though, does not make it true: courts do not steal anything from anybody. What courts do is what the strapline says: they assert the rule of law. They do what they do only after carefully following the law.

All of this relates to one small, rather sad, example of family justice system truth denial. But it is typical of the type of nonsense peddled these days, with the assistance of Tim Berners-Lee’s wonderful invention. The truth doesn’t matter, what the experts (i.e. we lawyers) say doesn’t matter; all that matters is that you say what you want to say and hear what you want to hear.

Well, if you should find yourself caught up in the family justice system there’s something you need to know: the truth does matter, the facts (which we call the ‘evidence’) do matter, and those things will determine the outcome of your case.

Say what you want about the family justice system, but you won’t change the reality. The truth may be inconvenient, but it’s still there, and to tell people otherwise is to do them an enormous disservice.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Andrew says:

    But John – you know that if you read it on a website it must be true!

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