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It's our right to challenge the state through the courts

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The wrongful removal of a Roma child from her biological parents in Dublin because she didn’t look like them is a timely reminder of the importance of our right to challenge the state through the courts.

In a settled peaceful society like ours it is very easy to take this right for granted. Especially because these things don’t happen to people like us. They don’t do they?

The fact is that bad things do happen, it may be rare but we all know someone who has been or is being affected by wrongful or neglectful acts or omissions of the state: local authorities, public bodies such as the NHS or the police or the Inland Revenue. Then there are institutions like schools, universities and religious groups.

Our courts have for centuries been the independent forum to challenge these powerful bodies. A central duty of the justice system in our country is to resolve disputes by a balancing of the rights and freedoms of individuals against the aims and objectives of the state at any given time.

It is part of the democratic contract. Majority rule usually results in a dissenting minority. In recent years the ruling party has often received a minority share of votes cast. The democratic contract, unwritten, provides that there is the opportunity to challenge the executive via a judicial process administered by an independent judiciary.

The official website of the Judiciary of England and Wales highlights the “need for the judiciary to be independent of government”. The website emphasises that the judiciary must be able to perform its functions free from “any improper influence”.

Our democracy depends on what is known as the separation of powers between the legislature, the executive and the judiciary to provide a system of checks and balances to prevent any government acting in a dictatorial fashion and ignoring principles of governance and civil liberties.  So when government, the executive, is seen to be openly influencing the judiciary that is a time to be worried. It is a time for individual citizens especially lawyers and judges to scream and shout from the rooftops. It is not a time to sit on our hands and watch in silence. Bad things happen when good people do nothing.

In recent years both Labour and the Coalition governments have brought pressure to bear on the family courts in a way that interferes with the administration of justice. In a series of recent cases (Re B Supreme Court and Re BS Court of Appeal being the most high profile) the judges in the superior courts seem to be encouraging practitioners and judges to defend the right of individuals robustly when the state intervenes.

Family lawyers have become rather good at compromise and collaboration. And mostly that is a good thing. However there are occasions when it is necessary to put up a fight.

By Mike Devlin, Partner & Head of family law department