Alternative Law Journal
by Gene Brucker, University of California Press, Berkeley, 1986, 121 pp.
I’ll start with the NYT review I read on the back cover, causing me to buy the book from a discount table: '[It's] about stubborn love and the forms of law, and the impossibility of each to accommodate the ultimate claims of the other'. Not bad eh? And it's all happening in 15th century Florence, illustrated with contemporary woodcuts from Boccaccio's Decamerone.
In one way the book is set in a world with no real parallel for us: Lusanna must sue Giovanni to prove their marriage only because of the emphatic class structure that defined life and relationships in Renaissance Florence. But, like a Shakespearean drama, once the stage is set not only are the players familiar to us, in their beliefs, desires, habits, and prejudices, they hold up a disconcerting mirror to our own conduct.
Did Lusanna, daughter of an artisan, commit adultery? Or did she wait until the death of her husband before allowing herself to be wooed by Giovanni, an aristocrat? Did she poison her husband because of her infatuation with Giovanni? Did Giovanni lead her on only to abandon her for a younger and more eligible bride? The account is based exclusively on public archives this, as they say, is a true story.
In the inquisitorial hearing each relies on hearsay to promote their own moral character and condemn the other's. As to the alleged betrothal, someone is lying. All the while lawyers craft their clients' cases, seek tactical advantage, play with words, and delay proceedings. Well before that inconvenient doctrine separating church and state, the judge, an Archbishop, has the useful ability to ex-communicate those who do not comply with his orders. He actually does so in this case. But that's all I'll tell.
Simon Rice is a Sydney lawyer.
by Rosemary Sheehan; Ashgate Publishing Ltd, Aldershof, England 2001; 268 pp; £42.50 hardback.
The Melbourne Children's Court of Victoria since April 2000 has been housed in a new, modem building. It would be pleasing to be able to report that this signified the paramount importance placed by society to the resolution of children's disputes.
The reality is different. The Children's Court is not in the least child friendly. It has an intimidating ambience. It is a place where children are not welcomed.
Rosemary Sheehan's scholarly analysis is an indictment of the jurisdiction. The Court is manned by magistrates who have little understanding of the dynamics of child rearing, and little respect for the voices of children. This study paints a depressing picture of a magistracy that is more concerned with their lowly status than proud of the privilege of shaping disturbed children's lives.
Sheehan is rightly critical of the legislative framework that governs child protection, with its emphasis on saving the child/family relationship at all costs. With justification she castigates the adversarial attitude of both magistrates and lawyers, and especially their intolerance of the unfamiliarity of social workers with legal procedures.
Sheehan argues that magistrates err in their decision making by dwelling on the factual circumstances giving rise to an application for child protection, rather than on a desirable outcome for the child. Indeed, the magistrates themselves
complain that they receive no feedback on the outcome of their decisions. Each case is treated as a single instance. There is little consistency of decision making.
The intensive investigation into the views of magistrates themselves reveals a degree of cynicism and arrogance that leads one to wonder whether the right people are being chosen for the position. Few of the present incumbents have had experience in child law or child welfare.
Despite the clear mandate of the legislation that the rules of evidence may be waived, there is a strong tendency for magistrates to berate social workers (and indeed parties themselves) for failure to observe the niceties of the law of evidence. Some magistrates them selves concede they are ill-equipped for handling the complexities of child abuse cases - especially those surrounding emotional abuse.
This is a scholarly, and extremely well-written critique of the Family Division of the Children's Court. It is a chilling indictment of the law, the procedures and attitudes that inform this Court. The excellent comparative study and the recommendations for reform Rosemary Sheehan makes deserve the most serious consideration. Her analysis (which my own limited experience of this Court confirms) suggests that the system itself constitutes a form of abuse of children. Certainly, the Court in no way harmonises with the philosophy of the United Nations Convention on the Rights of the Child.
J. Neville Turner
J. Neville Turner is a Melbourne lawyer.