Parent-Child Reunion Is the Goal, Part 1: Due Process of Law

by Mary W Maxwell, LLB

When in my Ivory Tower, I rarely have to solve an actual problem — I can theorize to my heart’s content. But since June 2018, Protective parents have been asking Gumshoe to help them get reunited with their stolen child.  Each kid is in a developmental stage where weeks and months of the wrong environment can seal their fate for life.

This new “Reunion” series will ask what can be done starting with the lowest level of attack, in the courtroom. Later we will go higher up to inspect what goes on in Parliament or politics or mind control or whatever. Part One, today, is only about due process of law.

Procedural Fairness

My background is American and so I have been taught to think of rights as either substantive or procedural.  It is my substantive right, say, to be compensated for land I own, if that land is taken by Eminent Domain for road building.

But getting the money is not enough: I am also entitled to procedural rights, known as due process. I must be informed in reasonable time before the taking of my land so I could find, say, a substitute place to park my cattle.

And I would need to be shown that the legislature has properly voted in a decision to take that land, and be given a right of appeal. Etcetera. If all those niceties were neglected, I may be able to stop the eminent domain from happening.  How? – by blockading the road? No, by getting a court to acknowledge my rights of due process.

Magna Charta

Procedural rights have been with us for eight-hundred and three years and nine months. King John was coerced into signing them in the Great Charter in June of 1215 AD.

“John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, To the archbishop, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greetings.

“Know that, having regard to God for the salvation of our soul…we have granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs…forever….”

He then named some substantive rights:

“No village or individual shall be compelled to make bridges at riverbanks ….No constable or other bailiff of ours shall take corn or other provisions from anyone without immediately tendering money therefor….”

And some procedural rights:

“No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law,” without credible witnesses brought for this purpose. … To no one will we sell, to no one will we refuse or delay, right or justice. All fines made with us unjustly…shall be entirely remitted.” [Emphasis added]

The magna charta stuff subsequently got claimed by Englishmen as their rights, from which there could be no derogation.  In the US it has been a proud job of the Supreme Court to define and further expand the particulars of due process. Australia does so too.  Here is an example: In South Australia you may be pulled over as a driver and told to blow into a breathalyzer.  It may record you as being over the legal limit of alcohol.

Later, if you can show in court that anything was amiss, such as the machine inaccurately recorded the date stamp, “due process” would be said to have failed and you could get let off for the charge of drunk driving.

Sometimes those things seem silly and can be used in irrational ways (if the guy was drink-driving, we want him convicted), but it is all part of our trust in our leaders that they will follow the law. Just imagine how bad it would be, if all was arbitrary:  You would never know if giving a breath sample could result in your being accused of robbing a bank.

Funny You Should Mention It

Many Protective parents have had almost that experience. They go to police to report a crime and find themselves charged with some other crime. All very traumatic, as the whole thing is inexplicable to them. In a recent gumshoe article we quoted Professor Freda Briggs, a social work scholar, as to many confusing parts of “parental law.”

So now, before chasing down the due process law, lets us glance at the jurisdictional issue. You can’t insist on due process if you don’t know what kind of court you are in.

Family matters are not part of the Australian Constitution. They are state matters but Article 51 allows any or all states to “refer” their powers to the Commonwealth government in Canberra.  The states did that in 1975, allowing a Family Law Act to emerge as a federal law.

It governs divorce, property settlement, and custody (now often termed “residence”) of minor children. The judge has much discretion as to handing out the property and custody. He then writes orders and if these are disobeyed the person is in “contravention” of the order.  It is then the judge’s call as to whether to cite the person for contempt – with a maximum penalty of one year’s imprisonment.

Please see Gumshoe’s article in December 2018 as to the possibility of contempt being a criminal or a civil matter. If the penalty is civil we do not refer to the person being “sentenced” to prison but only being “committed” to prison.

Here let me opine that it is proper for judges to guard the dignity of the court by using contempt, but he should not use it as a tactic to get the person’s cooperation, much less to prevent the person from telling the truth. We hear that judges do often do those two things.

(Note: I use the masculine pronoun HE for a judge but there may today be a preponderance of females in the judiciary.)

State Courts

The legislature of any state can enact a law whose purpose is to set up a court.  This goes against the grain of “separation of powers,” which is an important check on power.

(Note: ideally, if the three branches of government are distinct, they can be a check on anther branch getting too big for its britches. In particular, a court can find that a law is not OK, thus checking the Legislature’s (Parliament’s) power.)

Consider the child protection legislation.  It may call for a statutory body such as a Child Protection Board. Naturally it would lay out what that Board can (and perhaps cannot) do. I will use a South Australian example, The Children and Young People (Safety) Act 2017 (SA), as amended October 22, 2018.

This is a quote from the Lawhandbook.sa.gov.au, with bolding added:

“Key reforms from this date [2018] included:

• A broadening of the reporting requirements [This is the same law that makes it mandatory for professionals to report child abuse]
• The Department for Child Protection now has the power to remove children suffering or likely to suffer serious harm for up to 5 days without a court order…
• The Department for Child Protection now has the power to direct parents to attend assessments or random testing. The Court can still order both children and young people and their parents … to undergo assessments and granting of the child or young person to the Chief Executive [This means the state becomes guardian, the child is a ward of the state.]
• Family group conferences no longer need to be convened or attempted before court orders are sought…
• Custody and guardianship is granted to the Chief Executive rather than the Minister
• Contact arrangements (between parents/families and children in care) are determined by Chief Executive, but reviewable by a Panel [“children in care does not include those at a parent’s home or a relative’s home.]
• The Chief Executive can direct that child or young person’s name be changed, and the Court can declare the same where a child or young person has been in continuous guardianship for 24 months. [This may make it hard for biological parents to later track their child.]
• Those aggrieved and sufficiently interested in the Chief Executive’s decisions under Chapter 7 of the Act may apply for internal and external review (by SACAT), with children’s views to be considered….
• Prescribed child protection complaints have gone to Ombudsman SA since 18 December 2017.” [The ombudsman’s office has no ]

What Court?

This law gives certain powers to “the court,” and thereby hangs the tale in regard to Due Process.  It appears to me that the Youth Court of South Australia is a creation of Parliament and that it does not feel obliged to be judiciary-like.

This is a quote from Courts.sa.gov.au:

“The Youth Court of South Australia was established under the Youth Court Act 1993 and hears matters in relation to criminal offending, child protection, adoption and surrogacy. [Here we are only interested in child protection.]

All Youth Court hearings are closed to the public.  The Youth Court Act 1993 states that the only persons allowed into court are:

• Officers of the court
• Officers of the Department of Human Services
• Parties to the proceedings and their legal representatives
• Witnesses while giving evidence
• A guardian of the child
• An alleged victim
• A genuine representative of the news media

Although the media are allowed into court, the Youth Court Act 1993 restricts reports of the proceedings so that nothing may be published which may lead to the identification of the youth.”

On principle, I object to the closed-ness of any court. The decisions of judges cannot be secret. They must be lawful and “be seen to be lawful.” Without doubt much goes on today in the various state’s Children’s Courts that is unlawful.  I do not think they follow due process.

In the United States, Judge Henry Friendly compiled a list of things that we now take for granted as proper to due process:

• Notice of the proposed action and the grounds asserted for it.
• Opportunity to present reasons why the proposed action should not be taken.
• The right to present evidence, including the right to call witnesses.
• The right to know opposing evidence.
• The right to cross-examine adverse witnesses.
• A decision based exclusively on the evidence presented.
• Opportunity to be represented by counsel.
• Requirement that the tribunal prepare a record of the evidence presented.
• Requirement that the tribunal prepare written findings of fact and reasons for its decision.

(Obtained from Peter Strauss’s article at Cornell University’s website: law.cornell.edu/wex/due_process.)

At GumshoeNews, we have received complaints from parents who say they are not even given a chance to speak in court (though they have paid the fee to be present), and the good evidence they submit is unfairly deemed “inadmissible.” I have also heard that they are asked to make up their minds and sign a consent order for this or that, with no time to consult anyone.

A good lawyer could make mincemeat of any rulings handed down to an individual Protective parent if due process had been evaded.

Bring Back Runnymede

At the moment I am unaware of the technical procedure necessary to do the aforementioned mince-meating of a ruling. Later in this series we will cover it. But please consider that ultimately if we have a right to due process and the “king” blocks it, it is up to ensure it.

This is how the barons at Runnymede “negotiated” the matter with King John. It is at the bottom of the Magna Charta:

… We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well. …

[W]e give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted…so that if we [the king], or our justiciar…shall in anything be at fault towards anyone…

and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us…and, laying the transgression before us, petition to have that transgression redressed without delay.

And if we shall not have corrected the transgression…within forty days…the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles …saving harmless our own person and the persons of our queen and children.”   [Emphasis added]