OK, so, more thinking, more theories. Still trying to get in the head of the judge…
I think we can make a simple case for the explanation of why judges are as useless as they are. This time, the reason is political. The reason is cowardice. This theory emanates from my memory of when my mother was in hospital, dying. She had Alzheimer’s disease and had been on a slow mental decline for a number of years, culminating in mini-strokes and having to be admitted, in the end, to hospital.
I know that, if my mum had been able to express it, she would not have wanted to be a burden. She would not have wanted a situation where she was completely dependent on others for her food, and all of her personal needs. She would have asked, in an ideal world, to have her life terminated – to be (to use a pretty horrible word) ‘euthanised’. But no doctor would do this. Partly because to do so would be illegal, of course, but the issue of morality comes before the issue of law – that is, we get our laws from our morality, not the other way ‘round. So, let us suppose for a minute that assisted suicide were legally permissible in England. Do we think that doctors would then be killing patients right, left and centre? I suspect not.
The reason is this. To carry out a mercy killing, doctors must be brave. The doctors were not brave. For example, towards the end when we were deciding whether to feed or not feed my mum, the doctors left the decision to the nurses. Their excuse was that the nurses are with the patient all the time and are better placed to make this kind of decision. This was a lie. All that was going on was a doctor being unwilling to make the big decisions, the tough decisions. ANY decision. Because if one makes a positive decision, and one is wrong, one can be criticised. If the doctor does nothing, she can blame nurses, or the natural progression of the disease. I call this ‘slopey shoulder syndrome’.
I use this example as an analogue for what the judges are doing in PA cases.
Judges are simply frightened (so much for ‘without fear or favour’). Frightened of making a positive decision that might have negative consequences – I mean, how is the judge going to look if she transfers residence of the child to the father and the father then gets the kids in his car and drives off a cliff (this does happen sometimes, of course, although extremely rarely)?
But judges should understand that a decision to do nothing is still a decision.
And judges, when deciding to do nothing, know, or ought reasonably to know, that the child will suffer harm. The judge knows perfectly well what is going on – that the (usually resident) parent is seeking to harm the child by depriving it of a relationship with its other parent. But the certainty of psychological harm is somehow less of a worry than the extremely remote chance of physical harm if contact is ordered, or residence transferred. So, the judge makes a political and cowardly decision. It’s political because, rather than being fearless, logical or proportionate, the judge is worried about a possible leader in the Daily Mail that this judge has ordered the child to go with a ‘dangerous’ parent. She’s worried about her reputation (and that of judges in general), not about the child’s best long-term interests (which is what the case law and the Act mandate). So, our judges are cowardly politicians, not fearless at all.
In criminal law, it is possible to murder ‘by omission’ – i.e. by doing nothing, if (and only if) the putative murderer has a duty to the victim. Doctors, for example, have a duty to save lives so anything they do to shorten it might amount to a criminal offence. Equally, a parent has the same kind of duty – not to kids in general, but to their own children. If your child is in danger, you have a legal duty to act. And that’s because you have a moral duty to act – again, the morality comes before the law.
Now, it seems to me that a judge in a children case has the same moral duty to the child, as the doctor, or the parent. Morally, she must take action to protect the child from harm. But legally, there are no repercussions for the judge. A doctor has this ‘sword of Damocles’ hanging over her head all the time. A doctor has an ethical and legal duty to act. The judge has only the ethical duty.
And we know that this duty is routinely ignored. How is this possible?
Because you can’t sue a judge. You can’t prosecute a judge for putting a child in harms way. You can’t get a judge sacked (not in practice). You, as a parent, and we, as the State, can do nothing.