The public has become grimly resigned to a ‘postcode lottery’ in many areas of life – but few would expect to find justice on the list. It is, after all, a truth commonly acknowledged that we have a first-class judiciary, and that English and Welsh justice is without peer.
But it was clear from the accounts of those attending the Gazette’s roundtable discussion on family law that the justice system has an approach to divorce, children and relocation that is horizontally and vertically inconsistent.
District judges separated by a county line give a different treatment to cases with near-identical facts. The High Court is known to take a different approach to questions of relocation to some county courts. And individual judges reach for gender stereotypes that should have been left in the robing room.
It matters who you are in front of.
In England and Wales, family law hands a great deal of discretion to judges on the grounds that people have complex lives – and formulaic solutions would have unintended and unwanted consequences.
Too often, though, in place of what should be sensitive nuance come judgments that look and feel arbitrary. In part this is due to a system denuded of resources – fewer represented parties and a caseload that the courts and Cafcass struggle with.
But our judiciary, it seems, could do better.