This Has Nothing To Do with the Hampstead Children

by Mary W Maxwell, LLB

Six years ago, while in the US, I observed a situation where two teenage girls lived alone with their mother who was drug-addicted. She would wake them in the middle of the night to scream at them. I don’t know how the girls coped; today they are 20 and 22, but I haven’t seen them.

Back then, I knew nothing of a “child abuse hotline” or even of public services that could assist these teenagers. But looking back on it I would say that even if those girls are “doing fine” today, they must have been damaged by it all. When Mother would wake them, it was to scream blame at them for things of which they were innocent! (She could be useful at Guantanamo.)

The foregoing is just to say that I personally approve of intervention when needed – despite being an advocate of family privacy, as a general principle.

The Baby and the Courthouse Steps

This article is about a one-week-old baby who was taken into the care of the state (in the UK), owing to the Mother’s drug addiction. Someone sent a clipping of it to Gumshoe News without the date, so I took it to be a hot-off-the press, 2019 judicial ruling. The sender was very happy to have found this “wonderful new judge.”

I now see that it was a 2014 ruling, but 5 years is hardly an eternity so I’ll present it here as “news.”

The case reached Britain’s High Court. “Justice P” set aside the original judgment. She was not concerned with whether it is good or bad to take a baby. She was concerned that the court had handled the whole thing one-sidedly. So it’s a procedural issue.

Here is a short bit that will give you the essential procedural matter.The baby’s official codename is NL. The quote here is from FamilyLawWeek.co.uk

Justice P has deprecated the widespread practice in the family proceedings court by which parties, usually the local authority, draft the ‘Facts and Reasons’ which are then adopted by the Justices. [re the 2014 case of NL]

[They] drafted the entire ‘Facts and Reasons’ document in regard to an interim care order. The draft had been sent to the court, by email, prior to the hearing. It was made available to the parties’ legal representatives, in hard copy, outside court on the morning of the hearing. [It] included reference to an expert’s report obtained on the previous day. In her judgment… Justice P said:

“…I am profoundly alarmed by the existence [of this practice which] significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice…. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.

“Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again….”

Yes, that is great news. Even though it is no more radical or newsy than saying “summer is hot” or “the number 6 is in between 5 and 7,” it’s still exciting to hear.

Justice P is right. The case was mishandled. The judge or magistrate who failed to listen to the mother’s side of the story ought to be punished. We can’t allow due process to go down the drain.

My Meager Experience a Litigant

So far I have only been in litigation three times in my life, once as a defendant and twice as a plaintiff. In all three instances my side of the story did not get read by, or considered by, the judge.

The Mary-as-Defendant thing went like this.  I failed to pay a bill and it went to a collection agency. I rang them and asked if they wanted to do a deal. They said “Not at the moment.”  (They are sometimes happy to make money by charging interest, as long as there is collateral such as by putting a lien on your house.)

Then one day, ten years later, they sent me a demand, and I did not receive it.  This was my fault — my change-of-address notice to the Post Office had run out. So they filed in court for satisfaction of the debt. I looked up the relevant state’s legislation and was amazed to see that a defendant should never challenge it, as the law is written to protect the collection agency 100%.

If you dare challenge, you’ll only be getting yourself liable to pay the other side’s costs.  So I settled by writing a huge cheque and that was that. Presumably the court would have done what Justice P above railed against.  They would have used the plaintiffs’ facts and reasons in their wording. But I say it would not have been wrong of them to do so, such was the legislative intent!

But in Australia, I have the impression that many cases are handled like the UK’s Baby NL. And if so, it is inexcusable (as Justice P said) for a judge to simply take the language of one side’s pleadings. Judges are supposed to exercise cortical muscle, as it were, in their consideration of any dispute.

When You Are Up against the Government

As of the two times when I was a Plaintiff, they were both about the presidential usurpation of Congress’s “right” to declare war (which was written into the Constitution in 1787 with great care). My first try, in 2006, went only so far as a federal district court. The president of the US was the Defendant.

In response, the DOJ (technically, the US Atty General Alberto Gonzales) submitted the pleadings of the Defendant. Those words were of course sent to me, as each party gets to see each other’s position months before the hearing. (In the Baby NL case, the mother and/or her lawyer only saw the other side’s pleadings the morning of the trial, virtually on the courthouse steps.  Tsk Tsk.)

Subsequently, the federal district court judge dismissed my case. He did so with no facts or reasoning of his own. He merely copied, verbatim, what the Defendant suggested as reasons for dismissal.

I later looked at the dismissal of other citizens’ war-powers cases and they were similar. Presumably the DOJ has a template and just presses a button when any war powers case comes up. They simply say the person does not have standing and that “war is a political question.”

In 2017 I filed my second case, Maxwell v Trump (specifically about nuclear weapons, but still a war-powers case). The first response I received was from the district court  magistrate informing me of what she was planning to pass on to the judge as reasons for dismissal. I was given 30 days to disagree, and sent my disagreement to her within that time.

The judge then made a ruling to dismiss, in which all he said was “I agree with the magistrate.”

This time he did not re-print the words supplied in the DOJ’s pleadings. Why?  Because there were none — the DOJ had not even bothered to reply. I am guessing that the US Attorneys know that a district court will dismiss every war-powers case no matter what it contains.

I’ll bet you thought that if a party, the defendant, does not challenge a plaintiff’s pleadings, the plaintiff wins. It is generally understood that this will happen in a case where both sides are individuals. You win by default.  The judge, having not heard from the other side, has no material to use against you,

When the district court dismissed me, in January 2018, I showed my dismissal to a legal scholar and he too had not known of the practice, which I will call the twiddle-thumb practice of the DOJ not throwing any argument against me. (As I said, in the 2006 case, on a similar topic, the defendant DID come to the party by opposing my little treatise on unconstitutional warring. I guess they have since changed their policy.)

A Bit Fancier in the Appellate Court?

Being a big girl by the time 2018 rolled around — feeling my Cheerio’s, so to speak — I thought “Well, I’ll appeal the dismissal.” I went to town on researching the issue of “standing,” and decided I could win.

I must admit I expected that the court wouldn’t play ball. They are on the side the executive branch, not the legislative branch. Or should I say, they are not on the side of the Constitution, alas.

For sure, though, I knew my case would get some “facts and reasons” from the court’s mouth. They would have to defeat my excellent arguments.

Oh really?  The Appeals Court’s ruling – if you could even call it a ruling” consisted of saying “We agree with the District Court.”

So ultimately the ruling in the constitutional case of Maxwell v Trump came from a New Hampshire magistrate. On nuclear weapons. OMG.

What Has This To Do with the Hampstead Children?

And now for something weird. Recall that Justice P said:

“Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again….

Her name is not P.  I was being coy not wanting to reveal her name – Paulffrey. It seems she is famous for ruling against the case in which two Hampstead children claim ritual abuse. I think it is a brother and sister under age 10 but I don’t know the case and must not comment on it.

When the Gumshoe reader sent me Paulffrey’s “hot new 2014 ruling” I looked her up on Youtube.  And there she was giving advice to Social Workers, seeming to side with them.  Per the comments underneath that video, everybody hates her (maybe retrospectively because of the Hampstead thing? I don’t know).

Frankly I think her words to the social workers are sensible.  She is telling them to do their job confidently.

Reading about her led me to an interesting website suesspiciousnminds.com (no, not a typo). The webhost there had written, after the overturning of Baby NL’s case:

“…we trust that no judge in any future case will lift so much of a claimant’s submissions into his own judgment as this judge has done and that, if substantial portions are to be lifted, it will be with proper acknowledgment and with a recitation of the defendant’s case together with a reasoned rejection of it. It is only in that way that unnecessary appeals can be avoided and the litigant be satisfied that he has received the justice that is his due.

Whew.  I am so glad someone says that a judge must hear both sides. I am ashamed that I took it lying down on the war-powers matter. When you are a mere individual and the other side is the government you lapse into thinking “Well, they have the power to determine if they will break the law – that is all part of their job.”

OH, NO THE HELL IT ISN’T.

And thank you, Justice P, for saying so.

As I often say in regard to the Tsarnaev trial (currently in appeal in Boston), letting the government get away with breaking the law is going to have massive unhappy results on us all. And letting a judge abandon justice on the Bench is tantamount to saying we no longer have law.

Below is the 2-minute video of Judge P talking to social workers. At the end, Her Honour says “The judge will always be interested in hearing your views.”

But of course, but of course.

https://www.youtube.com/watch?v=KxdOjI5uSZc