Archive for April, 2014
by Robert Whiston FRSA
Based on a March 2014 article in the The Register Citizen (Connecticut), by Andy Thibault
The judiciary as a whole cannot abide being told they are doing a poor job or are falling down in the proper administration of the law. They cannot abide being criticised when the grotesqueness of their failings are as plain as the noses on their faces.
Can you believe, for example, that the official body in England with responsibility for judicial conduct handed out a formal warning to a High Court judge who they deemed ‘outspoken’ in his support of traditional marriage ?  Would that have happened even 10 years ago if a judge had spoken out in favour of same-sex marriage ? Of course not. That would have been viewed as quite acceptable and, indeed, it has been legalised this year.
No, the judiciary would rather blame others, or swear black is white rather than admit they have it wrong. So, if these shrinking violets are too sensitive to criticism and find these home truths too intimidating, let us help them to look overseas. To gauge whether “if the same hat fits” elsewhere as it does here in Britain, lets see if the bungling is any worse or the same.
If we look across to the New England state of Connecticut we find a realisation, at last, of the full denial, by the courts, of rights granted under their Constitution – in much the same way as our courts defeat the intention of Magna Carta and other bills of rights etc, such as UN Conventions.
With Putin’s thugs in the Ukraine aping Hitler’s government-by-thuggery of the 1930s in Czechoslovakia, and North Korea stomping its tiny feet this week in yet another trumped-up paddy (excuse the unintended pun), lets look at how not-very-different-from-them we really are when it comes to some human rights.
The main complaint in the UK is the dread secrecy surrounding anything to do with Family Courts.
- “The fact is, family courts are like North Korea. In North Korea they can deprive you of your freedom and your wealth without due process. In family court they can also deprive you of your freedom and your wealth without due process.”
Anyone who has been through the family courts knows how accurate this description is. But these aren’t the words of an English legislator – they wouldn’t have the temerity – no, they belong to State Representative Minnie Gonzalez and Edwin Vargas describing their Connecticut family courts regime – and both, coincidentally, are not lawyers.
As they point out, in North Korea citizens are murdered with impunity and while family courts don’t exactly ‘kill you’, they do crush the life out of parents on a regular basis as surely as north Koreans are starved to death. For a great number of parents not being able to see your child is as good as being starved to death.
For 20 years the English judiciary has, bit by bit, reluctantly acknowledged that all is not well. Greater progress than ever has been made in the last 12 month with the president of the family division, Lord Justice Munby’s pronouncements, though nothing tangible can be counted to date. ‘Transparency’ is the latest buzz word but is this another case of rhetoric over reason, of time-wasting by window dressing antics rather than solid action ?
How familiar does the following Connecticut assessment sound to English ears ?
- Aggrieved parents who have not been able to see their children for years put so much heat on the legislature and the judicial branch that even Chief Justice Chase Rogers has acknowledged some sort of reform is needed.
For her part, the near 60 year old Chief Justice Chase Rogers prefers to characterise the system as not quite “totally broken” – the obvious inference (which dare not speak its name) is that it is totally broken. As the famous riposte of Mandy Rice-Davies would have it, “He would say that, wouldn’t he.” (see Profumo Scandal, 1963). 
Left: Chief Justice Chase Rogers, born Nov 12th 1956.
And how familiar is the following complaint from parents ?
- Many of these parents trapped in the system have shelled out huge sums – tens and hundreds of thousands of dollars – not only to regular lawyers, but also to court-ordered and unsupervised guardians.
Some reporters are starting to wake up and in the vanguard is Connecticut based Andy Thibault who writes a weekly column for ‘The Register Citizen.’
Interesting parallels are drawn in Andy Thibault’s article between probate courts and family courts as both are, in effect, closed off from public scrutiny.
This ground is incredibly fertile for responsible legislators and reporters to uncover which court shafts citizens’ worse – probate or family. Both courts share the shield of doing much of their business out of public view.
In the aftermath of the 2008 banking crisis, financial institutions have continued their disgraceful behaviour by foreclosing on homes they don’t even own. Fraudulent papers have been presented to courts that in turn have not made the requisite enquiries and have rubber-stamped claims to repossess houses.
The inevitability of it all, its sheer momentum, is comparable to Gen. Sherman’s rape of the South and reminiscent of Atlanta’s Burning.
- “The system is broken … the system is letting these people down … they are losing their houses, they are losing their money,”
No matter that victims of family court have paid hundreds of thousands of dollars to lawyers they have virtually no hope of justice or relief from the onslaught.
Legal Aid has not been available in US custody cases and now it is no longer available in the UK, so we can expect the rise of the litigants in person (LiP). If justice is to be made available to all these comments are prescient: 
- “If the Judicial Branch will not take a step back to allow the flooded legal market to correct itself, perhaps what divorcing families really need is not an attorney, a therapist or mediator, but help from the FBI’s white-collar crime unit.”
Quite apart from divorce and custody issues but definitely linked to family courts is the matter of perjury. Courts almost encourage perjury in the obtaining of restraining orders and ouster / eviction notices. It has been a problem in England and Canada for many years and is clearly a problem in the US.
Perjury is at higher nominal levels because in custody hearings claims, often false, of domestic violence are common. These are made in order to ensure sole mother custody awards. In Sept 2000 the obstacle it caused was highlighted in a submission by Louise Malenfant entitled “Perjury in Family Courts” which asked, “Are we fueling violence ?” 
The conclusion is that on both sides of the Atlantic, family courts are in a sorry mess and the chances of obtaining any semblance of justice are slim. Not only is this clinically depressing for combatants but, and perhaps surprisingly, for judges too. More than a few in England have given up family court work altogether as it is too emotionally draining on them. And we have only to look at Mr. Justice Coleridge of the High Court to realise that many more are so dissatisfied (see reference above).
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 “Judge Sir Paul Coleridge disciplined for stating views on traditional marriage.” Official body with responsibility for judicial conduct hands outspoken High Court judge a formal warning. 17 Dec 2013 http://www.telegraph.co.uk/news/politics/10523138/Judge-Sir-Paul-Coleridge-disciplined-for-stating-views-on-traditional-marriage.html
 “Senior judge orders greater transparency in family court judgments”, Guardian, 16 Jan 2014. http://www.theguardian.com/law/2014/jan/16/judge-transparency-family-court-judgments , see also http://www.familylawweek.co.uk/site.aspx?i=ed61385
 ‘Opinion: In Defense Of Self-Represented Litigants’ 27/3/14
 Perjury in Family Courts – Alberta Submission to the Unified Family Court Task Force, September 2000 – Are We Fueling Violence ? http://sharedparenting.wordpress.com/2013/07/17/34/ . Presented by Louise Malenfant Family Advocate of Parents Helping Parents Edmonton, Alberta.