Wednesday, 20 May 2015

It Is Better Than Ten Guilty Persons Escape Than That One Innocent Suffers...

In his Commentaries on the laws of England first published in 1765, William Blackstone, an English jurist laid one of the foundations of our cherished principles of due process, along the lines of the universally understood maxim that all free men are innocent until proven guilty, by including in his manifesto (still the cornerstone of the principles of British Justice) that “it is better that 10 guilty persons escape than that one innocent suffer”.

In 1785 Benjamin Franklin, clearly wishing to underline and solidify this remarkable principle once and for all (as if there might be those who wished one day to bend it) left us in little doubt over his sentiment when he raised the ratio, declaring“that it is better that 100 guilty persons should escape than that one innocent person should suffer.”
The principle is one that cannot be argued, one that cannot, by any reasonable person at least. We all get it, don’t we? For as bad as it may be to allow the guilty to walk, the idea of being the one wrongly condemned is unbearable. For all of us. And so we have safeguards, the principles of justice that guard against the unthinkable happening to us.

Staggering then, and actually unbelievable, that these principles are not only thrown out of the window when you open the door to the family court, but that this beautiful principle is actually demolished, with no trace of shame, or even recognition that the reversal of this principle might be, it may just be, the worst possible scenario for all concerned; that reversing it may lead to the most devastating and catastrophic and miserable miscarriage of justice; an almost routine conveyor belt of miscarriages of justice.

Now here’s the punchline to this brutal joke: what’s the worst, I mean the very worst imaginable thing that could happen to you? Ask this question to any parent, and the answer would invariably be one concerning the loss of one’s children, the harm of our kids. Just consider: how many parents would die for their children?

Death is preferable than losing them, and we instinctively get that, for it’s the rule of biology, the fabric of our being, the root of our DNA: survival, the perpetuation of the species, at the cost, if necessary, to our own mortality. Scientifically it is perfectly obvious, from the biological imperative, it makes perfect sense. Emotionally, it is no less pertinent.

We only live once, and anyone who supposes otherwise simply does not have evidence on their side, and extraordinary claims must require extraordinary evidence.

But I’ll offer a single caveat to this observable fact: we do live beyond our own demise: only once; through our children. We carry on, literally. Our genes survive into the unknown; this force is the most spectacular of forces, and the impulse to see this happen has driven the evolution of not just our species, but all species, and driven the delirious plethora of life on earth for hundreds of millions of years. To stop ourselves from living this impulse is impossible, it cannot be done. Nature takes care of our survival for us, like breathing, it is not voluntary, it is life.

And in the arena of family court; we are asked to stop living.

We are demanded to stop under penalty of losing our children, which often happens even if we concede defeat. The impossible is demanded of us, and it is done under the wretched 1989 Children Act which failed to get its ducks in a row and define exactly what its holy grail was when it neglected to be specific with its paramountcy principle: that of the ‘best interest of the children being’….blah blah blah.

And it is blah blah because nothing adds up, ever. Either we have principles of justice, or we do not. Either we have a line that cannot be crossed on principle, or we do not. The law has to be black and white, even if each case is different; for every murder is ‘different’ but the law must remain the same. The principle is the thing, and within that safeguard, we all have a chance of living without being molested by the long arm of the state.

Blackstone and Franklin would have been disgusted at the casual breaking of this rule, and how the principles of family law mutated and disfigured themselves into the complete antithesis of the maxim of universal, human justice.

For if a man, any man, any father in the UK is ‘safe’ from the routine miscarriages of justice in family law, well then I demand to see the evidence. Let us assume his innocence to a criminal standard of proof: innocent of any offence that might result in the loss of his essential freedoms, those enshrined in article 8 of the Human Rights Act, that being ‘The right to a family life’.

He is not safe. If his wife, or partner, or simply the mother of his children wished to remove said children from his life, and declare that he never see them again, then she can. Any father, no matter how secure they perceive themselves to be in their fatherhood, can , and routinely does, lose his children.

And not a shred of evidence is required on her part. But the family court side-steps this inconvenient little problem by simply re-writing the principle of innocent until proven guilty: guilt is assumed from the start. Funnier still, as if this weren’t hilarious enough, the very notion of ‘guilt’ is re-written too, to really tie the applicant father up in knots, and expensive legal counsel too.

For ‘guilt’ metamorphasises into the ‘best interests of the child’ principle, and no one likes to argue with that, for it sounds so reasonable. It is anything but. ‘Guilt’ now means anything and everything. And nothing. They have it at their discretion, and if we argue the toss, we are guilty of being angry and misguided and volatile and dangerous, because in the family court, these are crimes, and no proof is required to make them stick.

Cafcass are usually ready and waiting to set the wheels of presumed guilt into motion when they write their ‘reports’ their ‘finding of fact’ essays- there is no irony here. Cafcass approach each and every report in the following way: to assess if there is any ’cause for concern’ that the court ought to be aware of when making decisions about child access arrangements. No matter if there never were any in the first place, or that none have ever been suggested in the first place. That is their job: to assess the danger to the child, the possible ramifications and consequences of allowing ‘contact’ to take place.

Well, I never needed a report when my child was born, nor when I took my baby home from hospital, or to Spain, or the park, or to my dad’s for lunch. Now I need a report? What on earth? Why? Because I’m separating from his mum, and entering the family court and its attendant services? The ones where everything concerning natural justice, and the tenants of innocence are exactly upside down, inside out and back to front? Exactly.

The ‘Children and Family Court Advisory and Support Service’ didn’t used to be so called. They used to be the plain old Probationary Service. They assessed convicted criminals on their release from prison, and made the necessary adjustments required to facilitate their return to society. Which is why Cafcass do what they do: because it’s who they are.

In 2001, under Labour, the service was streamlined, and the P.S became Cafcass; a sideways move into a new area of criminal practice: that of the father, and his assumed guilt of everything and anything. They all kept their jobs but had a re-branding. But this is in their DNA: ‘protecting’ society, especially children from the dangerous and the nefarious; the target had just been widened to catch Harriet Bin Harman’s new, more cunning criminal: the wolf in sheep’s clothing. The Father.

Extraordinary claims require extraordinary evidence. Therefore, “what can be asserted without evidence, can also be dismissed without evidence” as Christopher Hitchens understood. What records then do the family courts keep on the outcomes for children whom they have decided the fate of? What outcomes do Cafcass keep in the same instances? How do they know what the outcomes are if they keep no records, have never kept any records? Ever? How can they inform best practice? How can they, with such confidence, such outrageous arrogance, make their decisions? How can they call that which is not based on evidence (since the family court has never required or insisted on any when making the ultimate decision) a decision that is in anyone’s best interests?

Let alone in the interests of the principle laid down by Blackstone two and a half centuries ago?

The rhetorical questions are too easy aren’t they? But is it not our right, our duty, our obligation to demand answers to them nonetheless; or at least demand that the family courts stop exactly where they are, and urgently re-assess their principles?

Those that govern every other facet of law in this country, and moreover the principles that govern a healthy and humane society? The principles that were recognised centuries ago as men emerged from the backward, the stunted, the terrified, the clawing dark ages into the age of reason, of due process, of truth and of justice and of light?

Let us hope for our children and our children’s children’s sake that it does not take another weighty, cumbersome legal tome, and another 250 years of enlightenment, for family law to live by the principles of decent, good human beings everywhere and emerge from the dark ages of fear and stupidity and prejudice that so retarded our civilisation for such an unforgivably drawn out period of time. ch'lo vintage chlo shabby chic

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