Some thoughts sparked by the thought-provoking post of legal blogger Andrew Pack, Suespiciousminds:
Someone had blundered
Case in point concerns the vanishingly rare revocation of adoption on appeal, possibly only the fifth time since the 1970’s.
RE J (A Minor: Revocation of Adoption) 2017
Balances and checks exist for a purpose which must be followed to the letter, for children won’t adopt themselves to strangers.
Mr. Justice Hayden:
“14. I am profoundly conscious of the impact of my decision on both the birth parents and the prospective adopters both of whom will be distressed and unsettled by this uncertainty. I would however, emphasise one important and, in my judgment, inalienable right, namely, that of J to know in the future that the process by which he may have been permanently separated from his family was characterised by fairness, detailed scrutiny and integrity.”
Over-interventionism through ‘potential risk of future emotional harm’ has run its course and cannot withstand objective factual scrutiny. It is a ticking time bomb which will clog up the courts with future class actions so must be scrapped now as a catch-all basis for forcible child removal from birth families for both adoption and long-term fostering purposes.
It’s hard to see how the legal fiction of adoption on this basis with the concomitant severing of birth ties can now survive the (still teething) holistic not linear, proportionality, fairness, ‘nothing else will do’ or nothing else is better and overriding objective CPR tests as reasonable and necessary in all the circumstances of the child and family.
Absent parental fault, forcible child removal is nothing but social engineering and a gross violation of the limits of state intervention into family life and possibly straying into child identity theft.
Child’s inalienable right to Truth
It’s only common sense that the right to Truth of every single forcibly-removed child trumps any presumption of no duty of care, whether it be vicarious or non-delegable shouldn’t really matter.
Wider judicial recognition that the corporate parent’s resources (which include having an in-house legal department) create an unfair advantage against birth parents who often end up gagged is still needed.
Good-enough parenting presupposes good-enough representation to adduce it
The historic failings of birth parent lawyers who bat for the other side to undermine their own client’s cases (birth parents) mitigate against the presumption of good-enough representation in order to adduce good-enough parenting at court by providing a point-by-point rebuttal of the local authorities case.
Do we really need shadow legal representation in this country as touted in the US to ensure that parents interests get represented properly at critical times in public law proceedings before things improve?
Need for good practice
Equally concerning are semi-literate so-called guardian ad litems with no compunction in replacing the child’s voice with their own, who operate as the eyes and ears of the court with impunity and for whom justice is long overdue.
Access to justice remains impeded not just by cuts to legal aid but by instances of Judges retaining lawyers after parents have fired them to prevent parents engaging and securing their family human rights in practise.
But, above all, there is a special opprobrium for selective blindness by those judges who against their training and instincts choose to look the other way and blindly rubber-stamp forcible child removal on wholly inadequate evidence.
Duty of candour
How long before the new post-Hillsborough public ‘duty of candour’ applies to local authorities and over-zealous child protection social workers?
And to all public officials with no exception?
Though perhaps history will view the public family law excesses in recent decades in this country as another Blairite blunder of WMD proportions emanating from Pestminister this is little comfort to those whose lives have been destroyed. Though the lie may have spread, and been believed and even rubber-stamped, it will not be through those innocents who conscientiously object to lemming logic based on fake facts and fake consensus.
By any measure, individual and family autonomy outweigh statism and corporatocracy and not the other way around to be and remain democratic. By definition, undue influence and closed procedures are disturbing hallmarks and features of totalitarian regimes unbefitting liberal democracies, much less our so-called ‘fount of democracy to the world.’ How court proceedings can miss this beggars belief.
To be functional, rule of law must not just recite res judicata but include judicial review together with correcting errors of fact in good faith on appeal in practice. Birth children and parents being stereotyped and disentitled to family life by default is a grave wrong which must be righted and anyone who complains is not just a whining ingrate to be ignored. Blaming the victim epitomises the problem which is abuse of power and the vile perpetrators who feed off each other perpetuate these problems, all at taxpayers expense.
Austerity, swingeing cuts, and value to the taxpayer
Adoptive and foster care placements are an expensive community resource, which, like hospital beds, should be allocated strictly according to clinical need.
Parliament never intended or envisaged s31 would become a basis for non-fault forcible child removal. Children should remain their parent’s responsibility and not the state’s unless they are guilty of actually harming them. The historical track record and proven propensity of state abuse of ‘likelihood of harm’ per CA 1989 s31 2 (a) and (b) means it is no longer fit for purpose hence ripe for reform.
Munby as President and author of the CA has recently decided to delay his retirement.
Perhaps Justice is finally coming and may yet prevail …