What is the rule of law? The World Justice Project https://worldjusticeproject.org/about-us/overview/what-rule-law defines it as a durable system of laws, institutions, norms and community commitment that ensures accountability, just laws which are enacted, administered and enforced fairly, and accessible to the communities they serve.
The UN recognises the importance of the rule of law: https://www.un.org/ruleoflaw/what-is-the-rule-of-law/
The rule of law is fundamental to international peace and security and political stability; to achieve economic and social progress and development; and to protect people’s rights and fundamental freedoms. It is foundational to people’s access to public services, curbing corruption, restraining the abuse of power, and to establishing the social contract between people and the state. Rule of law and development are strongly interlinked, and strengthened rule of law-based society should be considered as an outcome of the 2030 Agenda and Sustainable Development Goals (SDGs).
I would have expected a profession such as social work, based as it is on countering oppressive practice, to be very alive to and keen on promoting the rule of law. However, I often see practice and comments that make me wonder about the state of general legal education for social workers and their understanding of and commitment to this foundational principle.
I first wrote about my concerns back in March 2016. https://childprotectionresource.online/care-proceedings-article-8-and-the-rule-of-law/ It was alarming to see some social workers question why I had referred to a Portuguese case as relevant to English practice. It was, of course, relevant because it was a clear example of where a State had failed to pay proper regard to Article 8 of the ECHR – respect for family and private life – hence it was directly relevant for the English courts. Some social workers in the conversation however asserted that the law was simply an ‘aspect’ of decisions around respect for family life, such as non-consensual adoption. I did not, and do not agree.
Using the analogy of driving, I stated that the rule of law is not the car, it is not the driving license – it is the road. It doesn’t matter how fancy your car is or how skilled you are as a driver – if you leave the road and drive off a cliff, your destination is clear but it isn’t anywhere we should be going.
There is of course sometimes a perceived tension between keeping children safe and obeying the law, particularly around due process. I am well aware of the frustrations of some social workers and police officers expressed at the court system which upholds the ‘rights’ of parents that they just ‘know’ are dangerous. And yes, in many individual cases the instincts of these professionals are probably right. But it’s the handful of cases where they are wrong that illustrate so precisely why we all need a system of rules which apply equally to all. Because – if you were faced with a care plan that sought to remove your child, you would presumably want no less than a properly evidenced and fair assessment? As indeed I imagine would any child.
When any professional elevates their personal belief or prejudice above due process or respect for court decisions, this poses a very serious risk of injustice. My concerns about this were raised again by a recent article in Community Care by Dr Michelle Janas, https://www.communitycare.co.uk/2020/12/11/puberty-blockers-consent-treatment-analysis-high-courts-ruling/
reflecting on the Bell v Tavistock judgment and children’s likely incapacity to consent to a treatment path ending in cross sex hormones.
I was particularly struck by a comment which said.
Puberty blockers are not “experimental” and there is plenty of evidence about their effectiveness in relation to trans children. Gillick competency cannot simply be suspended in cases where adults don’t children being able to make their own decisions – that’s the whole point of Gillick competency. Sometimes adults don’t make the best decisions for children.
There is a lot to unpick in that short paragraph, not least the misunderstanding of what Gillick competency means. The Tavistock decision did not ‘suspend’ Gillick competency but affirmed it. We all agree that sometimes adults don’t make the best decisions – that is precisely why cases about difficult medical decisions come before the court when parents and doctors can’t agree.
But it is the first line that troubles me even more. The High Court made a clear finding, after consideration of the evidence and testimony from a variety of expert witnesses and children, that puberty blockers are an experimental treatment, to which it is highly unlikely children have the capacity to consent.
That finding, unless and until the decision is appealed or varied, stands as a fact. Everyone must accept that fact and operate according to that fact. This is the rule of law. Without it, there is anarchy and chaos. I pointed this out and in turn was accused of not wanting to allow social workers to criticise a judgment. I responded to say that what was being said here went far beyond legitimate disagreement and questioning. Instead, the court ruling was simply rejected and a bald assertion offered in its place. This is not acceptable. No one gets to choose which findings of a court they will accept and which they will reject – least of all social workers, who have immensely responsible and difficult jobs and who wield, even if reluctantly, enormous power over the people they are trying to help.
The Tavistock have successfully obtained permission to appeal from the Court of Appeal but shockingly, the actual appeal hearing may be as far ahead as March 2022. This is of course difficult for everyone – those who support the initial ruling and those who wish to challenge it as putting harmful obstacles in the way of treatment for children who are genuinely gender dysphoric.
But – unless and until that appeal succeeds, the finding stands. I do not argue here that court judgments are immune from criticism or should never be challenged – the appellate system exists because Judges, as humans, are fallible. Mistakes must be put right. But the rule of law demands that we must not substitute personal opinion for a court ruling.
Those social workers who criticise me, probably reasonably, for being dogmatic, even ‘combative’ about this may wish to think about how things will play out if they are ever giving evidence in court and they show any lawyer in cross examination, that they have disrespected or disregarded the rule of law. It’s these exchanges that us aggressive lawyers live for. Don’t give us the pleasure.