Richard said something quite profound the other day. (It happens sometimes.)
He was talking about child custody disputes before the Family Courts, in which child sex abuse has been alleged by the mother against the father.
Richard Carvath said, “Women and children would be better protected from abuse if custody were decided by tossing a coin than a family judge’s decision.”
We think Richard is right.
Though the secrecy of the family courts makes it impossible accurately to establish the truth of the matter, we think it reasonable to suggest that the allegations of child abuse made in family court cases will be false in under 10% of such cases.
Put another way, at least 90% of the time the allegations will be true.
Yet despite this (if we’re anything like right about this) the ‘Family Court formula’ seems to be that though at least 90% of child sex abuse allegations are true, family court judges accept allegations as true in under 10% of cases.
And on the final decisions of these judges – who are getting it wrong most of the time – hangs the fate of child abuse victims.
There is a strong and growing body of anecdotal evidence to prove that these judges are cocking it up left, right and centre – that they regularly remove child abuse victims from the custody of their non-abusing parent (usually the mother) and give them to the abusing parent (usually the father).
Richard is right about tossing a coin.
Many more women and children would be protected from abusive men by a 50/50 coin toss than by a judge!
When coin tossing would protect more people much better than the courts currently do, we either need to replace the rule of family law with the rule of heads or tails, or else the case for major reform of the Family Courts is overwhelming.
Even if the Family Courts system involved only those people who genuinely have the best interests of children at heart (what do you think?), and the problem with the findings of ‘fact’ being made were nothing more than that of ‘legal technicality’, the problem with that legal technicality around the standard and burden of proof is absolutely enormous.
Criminal courts operate to a burden of proof on the prosecution and a standard of proof of beyond reasonable doubt.
The Family Courts, which are civil courts, do not operate to a standard of proof at all, because ‘balance of probabilities’ cannot be, in logic, an actual standard of proof, but only a licence for the rule of a judge’s opinion.
The Family Courts make findings of probability and then pretend that these findings are facts. Because a judge says so, in law the findings are treated as facts, but in reality these ‘facts’ are frequently not facts at all.
So the decision-making in Family Courts is premised upon a false logic which inevitably leads to the deceitful misrepresentation of opinion as fact.
Are civil courts suitable for deciding criminal allegations?
In a criminal court, an accused person is found to be either guilty or not guilty; there is no possibility, if the accused is acquitted, of the accuser being found guilty of the same alleged crime instead, at the end of the trial.
Why then is this a frequent outcome in the Family Courts?
Because Family Courts do not really operate to a genuine rule of law (which has to be rooted in truth – which is always founded on actual facts), but rather amount to the rule of lawyers (i.e. the personal opinion of the judge).
The ‘rule of law’ in the Family Courts is really a licence for lawyers to rule how they see fit, which may include overruling the truth, disregarding facts or fabricating ‘facts’ to fit the judge’s wishes.
In the absence of any genuine standard of proof, strange and mysterious things also happen to the ‘burden of proof’.
The burden of proof becomes nothing more than the requirement to persuade the judge to side with you.
Having to prove that what you say is true and persuading a judge to give a ruling in your favour (regardless of what the truth may be) are not the same.
Criminal courts function on the basis of a burden and standard of proof. The Family Courts do not.
Family Courts exchange Burden of Proof for a mere requirement to persuade, and Standard of Proof for a judge’s licence to fabricate fact out of opinion.
Is this a modus operandi fit for the purpose of protecting children?
Clearly not. This system is in urgent need of reform.