One of my law clinic colleagues did mental illness commitment hearings in her first job out of law school. She once told me how these hearings would start: the parties and lawyers went into a room in the hospital psychiatric ward, and the judge came in, put a little flag on a stick on the table, and that made it a courtroom. All it took was a flag on a stick.
In the courts where I practice, there’s a big flag on a stick. A couple of them, actually. And a state seal on the wall. The bench is usually elevated and imposing; there’s a podium at which to address the court; there are a couple of counsel tables; there’s a clerk and a jury box and a witness stand. Everything has the trappings of court. It all says, “This is serious business. This is where your case will be heard. This is where justice happens.” But you know what? It’s often an unruly mess, and the consequences are devastating.
In child protection law, the legal authorities we rely on are all written down. There are statutes, and court rules, and case law, a fair amount of which applies constitutional principles to this important area of law. Most of these authorities are readily decipherable. You read the stuff, and it looks like this is a law-driven, rule-driven business with a deep respect for the Constitution, as it should in a nation that has an alleged devotion to the rule of law. Yet the reality is a morass of lawlessness, hunches, ends justifying the means, poor advocacy, and questionable decision-making. As a teacher in a legal clinic, it’s frankly a bit awkward to teach students all about the law only to have them experience general lawlessness and chaos when they try to apply it. My students can make wonderful legal arguments, but too often they lose because various people – including those in charge – don’t like the result that the law demands. Too often, good legal arguments are met with head-scratching, puzzled looks, emotion-driven retorts, derision, or worse, but seldom are they met with anything that would pass for legal counter-argument.
If the system’s players believe that the law is insufficient to meet the purpose of protecting children while not needlessly destroying families, then they should work to get the law changed. Ignoring the law or coming up with tortured, illogical pseudo-legal analyses to avoid applying the law is not a permissible solution. And if you’re tempted to say that trial courts sometimes make mistakes, but that’s what appellate courts are there to catch, then you need to know that even the simplest appeal often takes a year to play out. During that year, a child might be bouncing around the foster care system and a parent may be burdened with complying with so-called “services” that have little to do with any actual problems the family might have.
The child protection system is a mess, including the legal side of it, and this is the system that decides the fates of children and parents every day of every week of every year. It makes decisions by the thousands, and I’m afraid that a lot of the decisions are wrong, and a lot of those that are right got that way by accident.
In its place, I’d gladly take a little makeshift courtroom with a table-top flag on a stick if the advocacy was good, the judge listened, everyone got heard, the law was followed, and a fair decision was rendered. You can keep your shiny trappings. I’ll take quality instead.