Magistrate refuses to adopt the law

Times, Oct 23rd ‘Christian JP Refused to Rule on Gay Adoption’.

A Magistrate is claiming for unfair dismissal at the employment tribunal because he was denied his request not to sit on cases involving gay adoption, with which he does not agree on religious grounds. When his request was denied he resigned, hence his claim. He lost at tribunal and is now on appeal. According to The Times Mr McClintock believed that placement with a gay couple was ‘an experiment in social science’. His argument on appeal at least appears to have been based on his ‘reasonable and responsible opinion as a scientific officer’. He said ‘In my view the best interests of a chlid are best served by a dual-gender upbringing’. 

I’m sorry, am I missing something? We ALL have our personal views about things but isn’t it pretty fundamental that if you are involved in the legal system you leave your baggage at the door and get on with the job at hand? I don’t get to say ‘actually I don’t want to represent this client because I don’t agree with his beliefs about the role of women’ and a Judge doesn’t get to say ‘actually I’d rather not deal with this case because its a bit difficult, or a bit unpleasant’. And none of us get to say ‘you know what? I don’t much like that bit of the law, would you mind if someone else dealt with it?’

A Magistrate’s role is as a Judge of the evidence and an applier of the law. No more, no less. A Magistrate is NOT a ‘scientific officer’ even if in another part of his life he is in fact one. A Magistrate is NOT an expert. His job is to listen to the experts (the social workers, the psychiatrists, the psychologists etc) and to weigh up their evidence – including that of the risks of a particular course of action – and THEN (and ONLY THEN) to make a decision about what is right for THIS child. Not what is right for ‘children’. THIS CHILD.

And – WHAT RISK is he insinuating? That a gay couple might be paedophiles? That they will teach a ‘normal’ child to be gay? Or simply that a child may be bullied because of his parents sexuality?

Mr McClintock believes in ‘dual-gender’ upbringing and yet I don’t see any reference to him asking for exemption from cases involving sole adopters (not so uncommon). If the proposition is that all children are better off with a Mummy and a Daddy, as it seems to be, the principled approach would be to refuse to deal also with those cases. And so it becomes apparent how slippery a slope this really is.

Its not so much the religious belief which irks, but rather the fact that the Magistrate has applied his religious (sorry ‘scientific’) views to ALL children without giving them the right to a fair trial of all the evidence before deciding something very fundamental about their life. It is fundamental to the justice system that decisions are more than just value judgments based on generalisations (a child is best with his Mother, two parents are better than one, bangladeshi women are often beaten by their husbands, the fathers are always the instigators of the violence….etc) – all lawyers learn from bitter experience that what you think is a foregone conclusion is not always so. And to suggest that questions of this importance do not merit consideration on a case by case basis demonstrates a failure to understand the purpose of a trial – it is the process by which a decision is reached and NOT a charade which has to be played out before a generic answer is applied.

It seems to me that this Magistrate has so misunderstood his role that he has failed to see that his job is not to do what he thinks is morally right, but to listen to and weigh up the evidence and apply the law. 

The point is – this Magistrate would want (if he could) to rule out all gay adopters for all children without considering the evidence of this child or these adopters. Instead he takes the option of refusing to apply the law. Every child deserves the chance to have the people making decisions about her life to consider all of the options to ensure that her new family is the best one for her. Any Magistrate who would discount an individual who might just be the best Daddy in the world for this vulnerable child without listening to the evidence should not be hearing family cases at all.

If this Magistrate were to have been permitted to continue sitting on ‘straight-only’ adoption cases would that be OK? You only have to ask yourself the question of whether you would be comfortable having him make a decision between a dual-gender placement or a return to a single gay parent and you probably have your answer.

2 thoughts on “Magistrate refuses to adopt the law

  1. Hear Hear. Well argued all the way through.

  2. […] 8th, 2007 by familoo The EAT has rejected Mr McClintock’s appeal in this case. More detail than was previously available from press reports is apparent from the […]

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