How would you feel if you found yourself listening to a judge, who was telling you that in all likelihood, she thought you had physically harmed your child and was making her recommendations on that basis, only to discover, without prior warning, that the judge had then changed her mind in a written judgment of that same hearing, taking the view that she was now unable to tell who had harmed the child in question and was now recommending something different? That is exactly what happened to this family, in a series of events which are all too familiar inside the family justice system.
This recent case shows the tensions between reasoning, procedure, common sense and compassion and whilst the Supreme Court are very clear on their take in this case, it left us feeling less than comfortable.
What are we rambling on about? Well, in the case, a young child was taken to hospital with severe injuries and it was later established that these injuries were not accidental. The blame rested between the mother and the father – the trouble was, there was no way of telling which one was responsible, or if there was, the truth had not been uncovered. A comforting aspect of this case was the dignified and balanced way in which the local authority conducted itself but concerning in this case was the ease with which the judge who changed her mind was able to assuage the parties by justifying the move as one which did not significantly alter the direction of the judgment.
But it did. The judge took the view that the father should now be subjected to further examination to see whether or not he was able to care for his daughter despite having expressed clear views that she felt the facts made him a very unlikely carer, and yet, by the same token, little was done to further examine whether or not the mother was in fact conclusively removed from the ‘pool of perpetrators’. In the end, the case found its way to the Court of Appeal which allowed the mother’s appeal post the initial judge’s change of heart and also ordered that the original findings pre written judgment were re-instated.
The father then appealed to the Supreme Court, which then went on to uphold the judge’s right to change her mind. The central premise for the Supreme Court’s take on the judge’s change of heart was that “It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.”
This seems perfectly fair on the face of it. After all, it is far better to have a judgment which is fully considered than one which is wrongly concluded and not corrected. But what of the human elements?
This case seems to highlight to us at least, the many flaws with the current court process in matters relating to family law. It’s the twenty-first century – do we really need to watch judges pontificate from a platform (even an eye-level one) within a mostly staged environment ruled by laborious directions and process? How about simplifying the process so that it is dignified, so that if a judge needs time to think about the complex nature of the facts before her, she can do so in a more appropriate environment?
We could do this by changing the way cases are handled forever – by making sure that everything is transparent when it needs to be, rather than laying emphasis on court-style hearings where the truth is offered a stage, but there’s no guarantee it will manifest behind half drawn curtains in the form of incomplete evidence and hasty summing up.
As rational as the Supreme Court’s judgement seems to us, it also seems to highlight the undeniable yet oft forgotten human element in these cases. To be accused of harming one’s child at the eleventh hour and then to have that accusation retracted but only revealed in a written document without prior notice, seems unintentionally callous, and deeply distressing for all the parties concerned. There must be a better way. Of course, to err is human, it would be wholly wrong of us to suggest otherwise, and to have the chance to redress an error is a chance worth taking, but once again for us at least, the manner in which these things are done are the key to having a noble and worthy justice system.
So what are we really saying? By all means, change your minds if you must, but please don’t forget that your audience is human.
I think this illustrates (yet again) that the care and welfare of children and young people is far too important a matter to be left to the determinations of someone with only legal training and conducted in an arena of adversarial conflicts.
Judges do not have the knowledge and have not studied the developmental needs, nor the intricate nature of child abuse, particularly child sexual abuse. A system which is accusatory and adversarial does not establish the facts and the truth and may be good enough for criminal proceedings, but falls far short of meeting the needs of children. This is compounded by the use of reporters/`experts’ who similarly have little knowledge of conducting child abuse investigations and give opinions which are based more on mantras from weekly social work magazines, than an extensive study of child maltreatments and children’s developmental needs.
Proceedings regarding children should be conducted by an Inquisitorial Tribunal with a judicial head assisted by persons with specialised knowledge in child development and child abuse, and domestic violence, and a single counsel to assist the Tribunal. In children’s proceedings, no one is charged with an offence (although they may be later if there is sufficient evidence to meet a higher standard of evidential proof) and should not be conducted as a quasi-criminal hearing.
Of course the judiciary and the legal profession will object to such an approach because of diminution of their powers and the likely loss of financial vested interests, but it is long overdue that the system is run for the benefit of children, and not those whose income depends on the continuation of this dysfunctional system.
Where a child has been seen as suffering obvious abuse, the child and siblings should have been removed and placed with specially trained carers. And I repeat specially trained in an element of abuse that relates to the abuse. NOT a run of the mill foster carer, NOT a children’s home but a normal home that has ‘parents’ similar to foster parents that are highly and specially trained.
Not having such support is the first loophole in the protection of children.
The specially trained carers with 24 hr care could assess who the guilty person was that caused the abuse.
It would also remove the ‘fear’ element of the children. A child
will find it very difficult to be truthful when they are fearful of the one who caused the abuse. And often the child will lie in favor of the abuser because of that fear.
Secondly there needs to be a order similar to an EPO that can be granted a short notice to remove a child to the specialist care where there is OBVIOUS serious abuse.
There should be a blueprint for social workers as to what is classed as serious abuse where upon the social worker hands over the case immediatly to a specially trained child protection officer who can act promptly.
This would un-muddy the waters and give the courts the right information on which to make judgement.
At the same time the social services can deal with cases where assistance is the order of the day and reduce the vast numbers of children being wrongfully removed into care for little or no reason.
These comments contain some potentially valuable ideas but there is one major obstacle – cost. To restructure things as suggested will cost plenty at a time when the Court service is having its budget greatly reduced. There are no votes in money to ‘benefit’ lawyers in any way, directly or indirectly. NHS or lawyers? No competition!
I confess that I am now tired of the casual cliche about lawyers only being interested in money. With mortgages to pay, children and family to feed, house and clothe, we’re no more in a position to work for nothing than anyone else. Yes, we expect to be paid for the work we do, just like everyone else. You get what you pay for in life. If you want dedicated professionals of any discipline at all helping to rescue children from failed homes, it’s going to cost. What is going to be the budget for this and where will it come from?
Hi Jonathan, I agree with all that you’ve said. I think there are lots of problems over and above cost and the troubles the economy’s facing, though. These problems also, ironically, contribute to an increase in costs because they tend to create obstacles to having a lean, mean justice machine. And yet those same obstacles cannot be addressed overnight, nor can they, often, be addressed at all, due to the very pressures you mention. So what do we do? Keep going until we run the service into the ground, or do we elect leaders with balls who will challenge the system yet at the same time ensure that people like lawyers have work and offer something valuable too?
We elect those leaders for sure – if we can find them from somewhere. This is the biggest frustration of all – where are the men and women of integrity who will choose not to pander to the populists with cheap and easy shots at unpopular groups? I don’t see them queueing up, sadly.
Hmmm – lawyers are well represented in Parliament (probably the largest single occupational group) are they the people you say are lacking in integrity?.
A Tribunal of Inquiry model would be far, far less costly than the present system with only one lawyer involved. Of course lawyers have a right to a fair return for their services, good, bad, or indifferent, but some of their charges are now definitely way into the grossly exhorbitant range.
Parents in Family Law proceedings have used hundreds of thousands of dollars and re-mortgaged their homes to meet the costs – some have become bankrupted, especially in proceedings involving the custody and contact with children.
Only this week I received information from a Sydney mother who had paid her lawyers A$120,000 dollars but after calculating the joint remaining financial assets, they abandoned her on the Court Room steps. As there is a small amount of equity left in her house she does not qualify for legal aid. This is now a common occurrence. Are the needs of lawyers’ children so great that other parents and their children have to be driven into penury and homelessness.?.