The Prime Minister’s decision to close the hunting season three days early was always going to be met with negative responses, ranging from jaded disdain to uproar and even open revolt.
It was inevitable that many would bleat that 9,994 ‘righteous men’ should not suffer for the sins of six; that this paltry number could not possibly amount to flagrant abuse and that this was a dangerous precedent posing a menacing threat to democracy and the rule of law.
Of course there are those for whom Joseph Muscat can do no right. Such diehards, on full party autopilot, would undoubtedly applaud the same move from a PN administration. Only here they are, condemning the political posturing as vintage Muscat and a fine example of far too little, too late.
I don’t agree with either position. With apologies to Meatloaf, three out of 17 ‘ain’t bad’. It’s long enough to make a point: that actions of abuse will not be tolerated and there’s a line the hunters simply can no longer cross.
As for the bleaters, I’ll paraphrase Bob Dylan. Exactly how many deaths should it take for the Prime Minister to know that too many kestrels or cuckoos have died? The derogation is a solemnly negotiated exception under EU law which simply can’t envisage further ad hoc exceptions. When you’re talking about a formal derogation negotiated at the highest international level, the only way to enforce it is with an equal formality worthy of our nationhood. If you can’t play by the rules, it’s game over for everyone. Tough.
As far as I am concerned, this is a bold and righteous move, no matter how unpopular. In fact, I’d now like this spirit of enforcement to cascade onto other areas of public life, such as heritage, environment and development.
Still, I wanted to talk about an entirely different kind of abuse today. The case of the Gozitan man who was ordered to pay €83,000 in damages to his daughter after court-appointed experts calculated the woman’s psychological disability at the level of eight per cent – making restitution of a kind to a woman whose life was declared to have been permanently ruined by her abusive father.
This of course is quite a novelty and a rather unprecedented sum by Maltese (and Gozitan) standards, and has caused quite a ruckus in the legal profession, sending many of us to our Civil Codes to check whether we’ve missed something. That would of course be the long overdue amendment to Maltese law putting moral and psychological damages on a par with physical disability. Quite some novelty indeed.
I won’t be going into the merits of the case, not least because I don’t feel qualified or competent to do so, even after having read a large part of the 43-page judgement. There’s a huge and marked difference between reading a court judgment and actually living through the entire process. That experience is usually the preserve of judges, magistrates, litigants and their lawyers.
However, I should still like to discuss one very important procedural aspect of the case, on which much hinged and ultimately depended. It is a common enough feature, especially in social and family cases of this kind.
It’s time the criminal rules of justice applied in the family courts
I am referring to the role of the ‘expert witness social workers, psychiatrists, psychologists, Children’s Advocate and anyone else to whose professional expertise a presiding magistrate or judge will turn in cases involving child custody, child abuse, domestic violence and family.
When we read about abusive, unstable or unfit parents whose children are taken away from them for one reason or another, we invariably accept the official ‘narrative’ and judgment because it derives from an expert’s report.
It never occurs to us to doubt the veracity of such reports because the thought of a psychologist or social worker being anything other than independent and professional is an anathema to most. When, therefore, there is reason to doubt the procedural integrity of a social worker or other professional, there then exists the very real possibility of a serious miscarriage of justice.
A social worker, for instance, who has been asked to draw up a custody report, must meet both parental parties, separately, jointly and in the presence of the minor, before filing a report.
The Child Advocate, who is charged with recommending with which parent the child should live, should do the same. The psychologist tasked with establishing whether abuse occurred can’t simply rely on the testimony of the victim but must meet the alleged aggressor and any other persons who might shed light on the matter. In such cases, less is definitely not more.
All this must sound terribly obvious. Surely no expert in his or her right mind would ever dream of expressing an opinion before listening to all concerned. And yet I have heard terrifying stories and know first hand of cases where experts have made recommendations based on flawed or one-sided evidence.
These are the cases where mothers and fathers were never heard but were still branded as unfit. This of course affected not only their lives but also those of their children.
As lawyers we are trained to listen to all sides of an argument before reaching a verdict. We are also wary of hearsay evidence. We know there is no place in a court of law for gut-feeling based on the flimsiest evidence, yet our courts often let those sacred rules fall by the wayside.
It’s time the criminal rules of justice applied in the family courts. It’s time the experts are specially regulated and properly scrutinised and vetted, because sometimes ‘experts’ – intentionally or unintentionally – do break up families with the rubber-stamp approval of presiding judges and magistrates.
This does a great disservice to bona fide victims, who may really have suffered the most harrowing abuse at the hands of patriarchal or matriarchal bullies, and who now face the second ordeal of having their cases wide open to review and a successful appeal.
michelaspiteri@gmail.com