Some Parents Sue the CPS; There’s Also Equity

by Mary W Maxwell, LLB

The law maxim relevant here is Ubi jus, ibi remedium — Where there is a right, there is a remedy.  Gumshoe has, for the last few months, been meeting brick wall after brick wall with regard to the child-stealing propensities of the Family Court.

Definitely such things can be solved by law. Recently I have been emphasizing punishment – thus the focus of my articles has been on criminal activity of various parties. In this article I say nothing about prosecuting, but about suing. The place to do this is not Family Court; it is civil court or possibly the Court of Equity.

I Gag, You Gag

Certain Gumshoe staff members are dealing, behind the scenes, on real cases. In Australia, however, there is the all-encompassing rule about silence.  It is in the Family Law Act, 1975.

Section 121 forbids the publication of “proceedings before the court.” The ostensible purpose of that section is protection of privacy (well, it wouldn’t be the protection of court misbehavior, would it?).

So I will speak only in general term here.  The typical case (worldwide, it seems, not just in Oz) consists of a protective parent trying to guard his/her child from an ex-partner who happens to be involved with pedophilia.

You wouldn’t credit it (as we used to say), but there are institutions such as police, Child Protection services, and court personnel, especially the one at the top of the court, who have in mind to keep the child away from the protective parent.

As I said, you wouldn’t credit it.

Our desired goal is to get the kid back. Of course. But the lawsuits I am about to mention – other than Injunctions – are not intended to get the kid back.  Still, they could lead indirectly to that in two ways.

First, the act of suing causes your opponent (your oppressor) to get the label  “defendant” –- that will make you feel you are no longer on the defensive. It puts you in the driver’s seat.  You feel less inclined to collapse under the weight of what the Family Court is doing to you if there be a prospect of getting justice elsewhere.

Second, the improprieties of the Family Court stick out like canine appurtenances when seen on the light of normal civil court procedure.

What Remedies Are Available in Common Law?

Please note that I am a layperson. Although I have a law degree, I am not in practice. So the following inventory of remedies is probably very incomplete.

I see people go to civil court for the following three things:

1. to claim damages
2. to seek an injunction – forbidding someone to continue a certain practice or demanding that someone be “enjoined” to do such-and-such.
3. to get a declaratory judgment (Actually I’ve never seen that happen, but it’s on the books!)

Damages, Torts

You might ask for damages if someone has broken a contract – then the court would apply the law of contract.

If the matter does not involve contract, you will probably be suing someone under the law of tort.

The WEX Legal Dictionary gives this definition of tort:

“A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.

In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment in fact that an individual suffers.”

Thus, you can injure me by depriving me of a right, not just by throwing a brick at me.

If you did throw a brick at me, I could both file a criminal complaint and sue you in civil court for that injury. The judge may award “damages” – usually money.

The Restatement of the Law

In the US it may be hard to keep track of changes to the common law, as there are so many jurisdictions – those of 50 states plus the federal court system. The American Law Institute puts out, every generation or so, a “restatement” of the law. It offers a wrap-up and analysis.

Naturally the publication by a private group, the American Law Institute, is not authoritative but it helps. It can be consulted by Australians too as we also have common law.

We can look into its section on torts (many volumes) to see what injury or loss the protective parent or the child could sue for. If the child is currently under guardianship by a third party, the parent may have lost the chance to sue on the child’s behalf – I am not sure.

But let’s assume here that a parent is able to do it. And I am going to refer to Mum, not Dad here, as the protective parent, to make the conversation simpler, but we all know it can be either way.

Child As Plaintiff

The first step is for the plaintiff (the child) to identify an injury (invasion of rights) or harm (loss or detriment), caused by the defendant (often the father).

Say the father has raped her (rape is defined in South Australia as penetration, whether by a body part or an object (such as a toy). He has assaulted her by threatening her with punishments. He has disrupted her relationship with her Mum. He has invaded her privacy by making films of her in sexual acts.

In the US, every citizen has the constitutional right to demand a jury trial for civil suits as long as “the value in controversy exceeds twenty dollars.” Australia has reportedly lost the use of jury trials in civil suits. Thus the suit brought by the child may be adjudicated by a judge or a magistrate. (Magistrates handle small amounts.)

I think the child might also be able to sue agencies such as the CPS – Child Protective Service — but for purposes of this article I‘ll list those sorts of complaints as suits by the mother.

The Mother As Plaintiff

The protective mother needs remedies from the law, first as against her ex-husband partner, the perpetrator, and also against many people who caused her an injury (invaded her legal rights), or caused her harm, such as loss to her health or wealth.

Thumbing through the aforementioned Restatement of Law (dated 1977), I see that a mother in the United States could claim invasion of her parental rights and infliction of emotional distress.

What entities can she sue? Note: some of the following things may also constitute crime, so maybe she can try to get prosecutions going but prosecution is not being looked at in this article.

Can Governmental Entities Be Sued?

It is generally hard to attack the wrong-doer when the wrongdoer is a part of the government. Below, I will show a video of a mother in US who was awarded $3 million for being accused of harming her child when she had not harmed it.

Possible defendants are:

–Teachers, nurses, and others who are subject to mandatory reporting of child abuse but who did not report it for the child o question even when they saw injuries on the child’s body or the child disclosed to them.

— Police who refused to listen to urgent reports of crime or imminent danger to the child

— Social workers who wrongly wrote a notification that the protective mother has mental health issues.

In the United States it is not uncommon for the Mum to be diagnosed with Munchausen-by-Proxy syndrome.  That is, she keeps taking her child to the doctor because she herself is a hypochondriac or wants attention. (Can you imagine?)

I believe that these government workers can be sued in their individual capacity. Granted when they’re at work they have some immunity, but if the thing they have done is “not in their job description” – e.g., it is not in a policeperson’s job to conceal evidence – then why should they be immune?

To grant them immunity would suggest that anything any government employee does under color of law – no matter how wicked – is acceptable.  The law has never made any such declaration.

Declaratory Judgment

What is a court?  It is a place where disputes are settled. It is a place where the might of the law is able to coerce any individual or organization. It is a place where society’s thinking about fairness over the centuries ends up in the body of jurisprudence.

It may be very helpful to a person to get a court to say whether such-and-such is a breach of the law, even if no damages are sought and no criminal complaint is made.

When someone knows a wrong has occurred, he or she wants at least to tell friends and have friends say “Yes you are right, that was a terrible injury.”

The recent formal apology by the Prime Minister to abused children was a great reliever of stress to many victims. In my own life someone wronged me in a business deal. Many years later I ran into the businessman and the first thing he said was “I apologize.”  I was flabbergasted. It also surprised me to find how a big burden was lifted off me just by those words. It was almost dizzying.

Anyway, the courts are able to give declaratory judgments. Lawyers seldom pursue this perhaps because there would be no payouts in which the lawyer could share. I recommend that protective parents seek declaratory relief.

The Court of Equity

Above I quoted the maxim “Where there is a right, there is a remedy.  Here is another one:  “When a common remedy ceases to be of service, recourse must be had to an extraordinary one.  Ubi cessat remedium ordinarium ibi decurritur ad extraordinarium.

Under English law there was a court of chancery and a court of equity. They used to be separate, until British Parliament passed the Judicature Act in 1873, combining them. Even after 1873, however, a person could still use the coordinated court to ask for a judgment according to the principles of equity.

In Australia, nearly a century later the state of New South Wales got around to combining the courts, via its Law Reform Act (Justice and Equity) in 1972. Other states had already done so. Australia’s High Court recognizes the principles of equity as still extant.

(I should point out that the Court of Equity does not deal in criminal matters.)

Can our model child ask for Equity?  I say why not? Equity allows a judge to go outside the strict law and make a “constructive remedy.” It is especially used when the law as such would result in an obviously unjust outcome.

Since the twelfth century in England, the Court of Equity has included a provision for the “disgorgement of ill-gotten gains.” As everyone knows, child trafficking is a lucrative business. Surely everyone knows that the lucre involved is ill-gotten. Let’s get some disgorgement happening.

And Now for the Bad News

I mentioned that there is a case in the US where a mother got a payout of $3 million. She had been accused of Munchausen by Proxy syndrome as her kid looked like he was starving. He had an illness that prevented growth. So she sued and got that huge compensation.

The bad news – which is incredible – is that she has not yet got her son back. She is allowed a two-hour monitored visit with him once a week.

I think this tells you all you need to know about the reasonableness (not) of the Family Court and the true motives for taking children away from Protective parents.

It sure ain’t to help the parent and it sure ain’t to help the child. Please watch the 4-minute video: