Exclusive for family law professionals: Fact-finding is a joke

In our latest Spring blog, John Bolch examines the court system and asks is it fit for purpose when so much is at stake?

For my sins I have now been writing about family law for nearly twenty years. In my ‘job’, if it can be so described, has included running various social media accounts, on various platforms, and consequently having to monitor responses that I have received to posts, from all and sundry.

It is one of the dubious pleasures of this task that I have regularly had to read the views of those who, shall we say, possess a dim view of the family justice system (it would have been much worse if it were not for the mute function).

Now, I have always accepted that the system is far from perfect, and understood that many of the criticisms have at least some merit. But there is of course a point along the path of debate beyond which fair criticism should not tread. When words and phrases such as ‘corrupt’, ‘stealing children’, and ‘scum’ (referring to a judge) creep in then, quite frankly, the user of those words and phrases has lost the debate.

My latest experience of this prompted this post. And the title hereto.

Fighting injustice

It came, as indicated, from a reply to something I posted on a social media platform. I won’t embarrass the writer by naming them, or assist their identification by naming the platform. Suffice to say that they describe themselves in the time-honoured fashion as a “father fighting against injustice in the Family Court”.

My post referenced a recent judgment concerning a fact-finding hearing in private law proceedings. The mother had made allegations of abuse against the father, and the court found the allegations not proved.

Fact-finding hearings are of course commonplace in children proceedings, and they are used to determine the truth or otherwise of allegations, for example of domestic abuse, by one party against the other. Obviously, it is essential that the truth of any allegations is established, as this can have a significant bearing upon the outcome, often so that the court can endeavour to protect the children concerned from the risk of harm.

The court is of course the arbiter of such matters, and this entails the court hearing the evidence and making a judgment upon each allegation. Now, judges are human and mistakes can be made, as in any human enterprise. But I think generally serious uncorrected mistakes are few, when one factors in that findings can be challenged on appeal.

Conspiracy theories

Now to the response to my post, which went as follows:

“Fact-finding is a joke. Call it what it is, you use assumption to pad your pockets everyone walks away w/something except for the children, that lose everything. Unless there are injuries you cannot make assumptions try to pass them off as fact. Family Court performs this civil rights violation daily.”

Let us break this down.

1. “you use assumption to pad your pockets” – Presumably, the old trope that family lawyers are only in it for the money. I assure the reader that most family lawyers could earn a lot more doing other kinds of work. As to ‘assumption’, that is exactly what the court does not do. Assumption is accepting something as true without evidence. Every finding the court makes is of course based upon the evidence.
   

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2. That the children lose everything. I think (having regard to the responder’s bio) that this refers to a parent, let’s say the father, being refused contact with the children as a result of the findings made by the court. But this will only happen if the findings are serious, and no protective measures can be put in place. It is of course a tragedy if a child loses contact with a parent, but in the end it’s all about the child’s welfare.
   

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3. “Unless there are injuries you cannot make assumptions”. I’ve already debunked the ‘assumption’ point, but even if the word ‘findings’ were substituted, it is nonsense to suggest that they cannot be made where there are no injuries. I would also say that ironically in a public law case I posted about just an hour later the court found that the father had inflicted some twenty bone fractures on his twin children. Fact-finding is a serious business.

OK, so why this post? It is not to make fun of anyone, or to make them seem a fool. I’m sure the feelings expressed are genuine. But that does not make them right. Judges are doing a very difficult job under extremely trying circumstances (no pun intended). They have no vested interest in making a finding one way or the other. All they are doing is searching for the truth.

It is now eleven years since the then President of the Family Division issued his ‘transparency guidance’, urging judges to publish more judgments in order to show the public how the family courts operate, thereby countering the charge that the courts operate a system of secret and unaccountable justice. (OK, I admit that the responder appears to reside in the US of A (lucky him!), but no doubt there have been similar initiatives by the family justice system(s) over there.)

And yet despite such initiatives these conspiracy theories persist, and show no sign of abating. Will anything bring them to an end? I doubt it.