by Mary W Maxwell, LLB
Law wins. I’ve always known it. You can laugh at me, call me naïve. But I’m not naïve — I know what law really is. It is biological. It’s an exoskeleton in the species H sapiens. It holds the structure of society together despite the fact that, being mammals, we are individually selfish.
People obey authority; they are genetically predisposed to do that. Sure, that can lead to some persons or groups taking over the symbols of law and exerting brute force. Sure. Happens a lot, and happened in the Family Law situation that I am about to describe in the UK (which is virtually identical to the Family Law situation we have been screaming about).
But in addition to “physical” law there is intellectual law. Here the members of H sapiens have exercised another of their genetic traits, the tendency to carry thought to its highest reasoned point. For centuries, some of the great minds have worked at the subject of law, extolling justice. “Justice” which is merely a concept, is the antidote to naturally-formed situations of oppression and cruelty.
I am sure there will never be a time when “forces” will cause people to stop thinking about justice, as we are built that way. As EO Wilson pointed out in 1978 in his book On Human Nature, the concept of human rights is plainly and simply an outcome of human selfishness. We all want what we want — and this inevitably leads to the production of law that focuses on justice. Yay!
The Sheffield Case: Interim Order for Children in Care
A mother in Sheffield, England had the care of her two children. She and the father were separated and he had the kids for a holiday abroad. Upon return he sent only the younger kid back to the mother. She and “others” went to his house and reclaimed the older kid.
As a result she was arrested, the kids were taken into police’s protective custody and placed in foster care. At a hearing where she wanted to challenge this, a female judge, Annabel Carr, beat her down.
You don’t need to know details about the two parents, as the triumph of law to be celebrated here has only to do with legal procedure. Long story short, a judge at the UK Supreme Court of Appeal, in February 2019, ruled that during the aforementioned hearing, the behavior of the judge was so unacceptable that her ruling cannot stand.
Maybe her ruling will eventually be found to be the right decision in the case (a re-hearing has been scheduled). No matter, she can’t treat a litigant like that.
Law calls for exact correct procedure. There are many, many features built into English law (and therefore the law of US, Australia, Canada, etc) that have to do with setting up the “niceties” of law. They are not silly niceties. They were invented to counteract injustice. The authors of the niceties paid attention to moral hazard – e.g., court personnel might misuse their power or litigants might cheat each other. The law can anticipate that and try to stave it off.
Justice Peter Jackson Knows His Onions.
All right, I’ll get to the point that all Protective parents are waiting to hear: Lord Justice Peter Jackson held, on appeal, that:
–1. It is not OK for a judge to walk into the courtroom with her mind already made up without having given the parties a chance to speak. (That is something we see routinely in Family Law in Australia).
Judge Annabel Carr had said: “the preposterous proposition you’re putting to me, it’ll fall on deaf ears”.
–2. It is not OK for a judge to state that a litigant has no chance of winning, no matter what. (This is usually “taken care of” in Australia’s Family Law by the solicitor, who has already told his client that the deck is completely stacked against a Protective parent.) Judge Annabel Carr had said “I’m not making any findings against [the father] because he’s accepted the inevitable”.
–3. It is not OK for a judge to get the person to sign a consent order unless there is real consent, given freely. (Many of the mothers reported to Gumshoe say they were 100% coerced, by a threat of “never seeing the child again.”)
Justice Peter Jackson said the consent order in this case was “secured by oppressive behaviour on the part of the judge in the form of inappropriate warnings and inducements.” He said the ruling could not stand as “there has been a serious procedural irregularity” and “what occurred in this case fell well outside the proper exercise of the court’s powers”. [Emphasis added]
Interestingly, one of the dirty tactics identified in the case consisted of “isolating” the mother by telling her that all the other players are in agreement. (In Australia, this would mean the court reporters, the Independent Children’s Lawyer, the State Guardian, the psychologists and the social workers. Maybe God, too.)
So what happened? Lord Justice Jackson’s decision at the appeal level was to set aside Carr’s decision. He did make one change in the actual orders, by altering them to “short-term interim care orders” until the next hearing can take place. Frankly that is not quite good enough. Anything can happen to a child in the meantime. All the thousands of kids who were wrongly sent to a parent need to be looked at again, pronto. It’s urgent because a kid’s brain is still forming.
In the UK case it seems that the kid had not been awarded to the father, but that the father violated the term of the holiday. I know of three cases in Australia where the mum has long since obtained orders in her favor, yet the father does not return the kid (and the judiciary, police, et al say “Ho hum, who cares”). So our work is not over yet.
But for my money, the appellate decision in the UK case is sensational. I say – and Justice Peter Jackson virtually says — justice of procedure is indispensable for everyone’s sake and for the sake of law’s survival.
He did not go so far as to say that Judge Annabel Carr needs to be in jail. She committed Blackstonian crimes galore and the world needs to become aware of this. I say Lock her up. It was no mistake – she knew better.
Precedent and Further Development
Australian litigants, you’ve now got a precedent! Yay! Surely it’s great cause for rejoicing. Too bad it didn’t happen locally, but the locals, in every state—Tas, Vic, SA, NSW, Qld and WA — can now vie with one another to forge ahead quickly and make more developments, thrilling developments.
Hey, this is better than Abe Lincoln – the legal profession can free the slaves. In doing so they can free all of us from the child-trafficking mafia that has been destroying our judiciary. Even now, that mafia remains self-assured of their right to treat all humans as their plaything.
Gonna be findin’ out otherwise.
Woo-hoo.
The existence of aberrant Judges is precisely the reason we have an appeal system. If a particular Judge consistently makes fundamental mistakes, they are “counselled” by superior Judges and if they fail to mend their way then they are replaced. The system is far from perfect, but it has operated for many decades (and in some jurisdictions a great deal longer).
The Courts deal with literally thousands of cases each year, and the miracle is that there are so few blunders rather than so many. In Australia there is a far greater danger in my view (based on 35 years at the Bar) created by the huge increase in self represented litigants. The courts have to deal with the material before them, and in an alarming number of cases both parties are self-represented. To say that either case has a small chance of a just outcome is not an exaggeration. But that is not the fault of the Judges but rather a narrow and ill informed view by politicians that they are “saving” money, or delivering an efficient and just system.
James, I see one of the problems is the financial burden on people. In the survey on Family Court (sexual abuse cases only) I asked the question:
How much MONEY have you lost (or spent) trying to achieve (or manage) your outcome in the family court, so far? (This a TOTAL of solicitor fees, transcripts, supervised visits, court fees, etc) [71]
0 – $50,000: 28x chosen (39.44%)
$51,000 – 150,000: 16x chosen (22.54%)
$151,000 – 350,000: 16x chosen (22.54%)
$351,000 — 750,000: 7x chosen (9.86%)
More than $750,000: 4x chosen (5.63%)
32 (just less than half) lost a home.
And the outcome in most cases was not favourable.
Very few cases are over turned at Appeal. To go to Appeal you must first pay Auscript for Court transcripts usually $2k per day for transcript, most transcripts are redcacted (crucial and damning information removed by the judge). Most final hearing are a minimum of 3+ days. Then there is the cost of the Appeal books, if you do them your self your looking at a mimum of about $1,500. Then you pay for inadequate representation more money down the drain. The family court always seems to place the poor children in the full care of their abuser anyway.
Thank you Mary for your diligence in seeking out this legal precedent. I hope this brings rapid changes to the nightmare being perpetrated by the family courts.
Can’t believe I omitted the name of the case, Rachel. It’s: G (Children:Fair hearing).
There’s no “versus” and no “ex parte.” That’s a new one on me.
Hey Professor EO Wilson, you finished 90 of them yars. Goodonya. I wonder what your book count is at the moment. I see you have a new one called “Genesis.” Here, let me advertise 3 others:
For a mere $A8.15, at Abebooks.com, our caring Aussies can get “Half-Earth: Our Planet’s Fight for Life,” in which you say that humans should get the hell out of Dodge, and let 50% of all land be occupied by species other than us. Fine.
For A$5.73, there’s your one and only novel, “Anthill.” Subject: ants, of course. (Have you ever seen the Egyptian play, “Cockroach”?)
Then there’s your epic poem, “They Couldn’t Organize a Piss-up at a Brewery” — about scholars who oppose sociobiology. (Nah, kidding.)
Ed, I see the NY Times asked you what books are on your nightstand? You said:
Sean B. Carroll, “The Serengeti Rules: The Quest to Discover How Life Works and Why It Matters.”
Colin Mayer, “Prosperity: Better Business Makes the Greater Good.”
Daniel Pauly’s “Vanishing Fish: Shifting Baselines and the Future of Global Fisheries.”
Max Tegmark, “Life 3.0: Being Human in the Age of Artificial Intelligence.”
“All have something to do with the analysis of biological and human ecosystems, my current focus of study.”
What about “Mary W Maxwell’s The Soul of Boston,” eh? Everything I do reflects sociobiology. Anyway, happy birthday. Thanks for being my buddy in the olden days. Ta for inventing the study of biodiversity. Mostly, thanks for being a scream. — MM
This one should be interesting for man against the system. I know almost nothing about David McBride except that he blew the whistle on deployed Australian Defence Personal known as The Afghan Files.
https://www.abc.net.au/news/2019-06-13/abc-raids-afghan-files-leak-accused-court-canberra/11206682
This story has a video link outside the ACT Supreme Court, he is very calm defending himself there. Will be interesting to see how it plays out in court and after. I can see why David will just focus on the points of law, and not blow the whistle further.
He gave us more compelling evidence that the only reason we have spent 18 years there is to guard the poppy fields crops whist growing and transportation to the first refinement processors. It is a question of national security, imagine if that got out, it won’t.
Courts can be used to create a limited hang-out.
“(In Australia, this would mean the court reporters, the Independent Children’s Lawyer, the State Guardian, the psychologists and the social workers. Maybe God, too.)”.
Except for God, no bibles of oaths of honesty to a higher place in this place, and any other after the amalgamation of Federal Criminal court and FLA coming.
This is the setup. So many avenues(court appointed professionals) to guide the outcome and even the few that last the softening(you must be on best behaviour, obeying the directions without resistance or be seen as a abusive parent) and proceed to Judgement day.
Judges don’t want of that course, they would need to spend night after night because the cutting and pasting of reasons needs rewording(they are stressed too, give it up you human ones).
The French system is somewhat(a little) better in that the Families children are considered the beneficiaries of the broken estate so their Judges do not have to “read tea leaves” about future actions and potential windfall of the parents after redistribution of the remaining estate after the due fees are settled.
Abe seems sacrificed after his usefulness in the new agenda of economic theft had run its course like his veep Hannibal Hamlin. Maybe both personally objected to the coming “carpet bagging” that is now known to be part and parcel of the “bankers wars”.
Think this is playing out in Argentina currently, they are starving on the streets says the US because of economic ineptness, isolate their production so they can not repay IMF/World Bank, anything is better than staving even “slavery”, then carpet bag ’em.
Happy Birthday E O Wilson, I’d have bend your ear too be sure your not generic, but at least you seem to read your books.