Opinionista Robyn Wolfson Vorster 14 September 2016

When justice forgets to be blind: Lessons from the ‘latrine baby’ case

It has been more than three months since Judge Mabel Jansen’s racist comments on social media forced the country to interrogate questions of judicial objectivity and the potential impact of judicial bias on those whose future they determine. It is perhaps ironic then that at the same time, another case of judicial partiality has been playing out in a courtroom in KwaZulu-Natal.

At the time of Judge Mabel Jansen’s remarks, the government was quick to emphasise that “the judiciary should be beyond reproach because the fate of a number of people lies in their hands”. It is perhaps ironic then that at the same time, another case of judicial partiality has been playing out in a courtroom in KwaZulu-Natal. But, in this case, with an important distinction: the area of this magistrate’s bias is one that is also shared and propagated by the government.

So what happens to a judicial officer who refuses to uphold the law or to suspend his subjectivity when making decisions? Troublingly, nothing at all. But can that really be our final answer?

To understand the case in question and just how concerned we should be, we need to know the back story which, despite the matter being ongoing, we can establish from various media reports in the public domain. The most prominent was published by the Sunday Times in July. Entitled Latrine baby in adoption tug of war, the account reads somewhat like the script for a movie. Its probable intent was to bring into question social work practices in adoption. In reality, it raised a lot of even more troubling questions, specifically related to judicial neutrality, the power of Children’s Court magistrates and why some are permitted to exercise such enormous discretion in deciding the fate of children.

The Sunday Times article ostensibly focuses on the fate of Baby S (the so-called “latrine baby” from the title). This two-year-old boy was abandoned shortly after birth, and appeared in Children’s Court in the hope of placement in a family. However, it is more specifically about one heroic magistrate. In the article, he modestly states that he is “not a crusader”. But, it is he who single-handedly opposes an inter-country adoption for Baby S (which he describes as a ruse for child trafficking, designed to financially benefit an unscrupulous social worker at the expense of the child’s poverty stricken family), tracks down the child’s biological granny and father, and then reunites the family, thus keeping the child in his kin and culture, and thwarting those who would want to “sell babies”.

In its Madonna-esque portrayal of inter-country adoption, it is an inflammatory read. But it is somewhat one-sided (well, let’s be honest, completely one-sided), and perhaps unashamedly so, because although the article’s authors state that the other parties involved – specifically the social worker and adoptive parents – did not respond to their request for comment, they failed to mention that this was because they didn’t want to unduly influence the outcome of the case. In addition, other accounts of this story also exist, and they paint a very different picture.

Chief among them is a version which is equally fantastic, but a lot less like Disney. This account begins with the same violent act: the abandonment of a 15-day-old baby boy in a pit latrine. It is a deed cynical and calculated enough to earn his biological mother an arrest and conviction for attempted murder (something practically unheard of in abandonment cases).

Baby S, who miraculously survived the near drowning, is then abandoned a second time, this time by his biological granny who fails to collect him from the hospital after he is released into her care (despite social workers’ best attempts, she does not make an appearance until her dramatic summons to court by the magistrate two years later). In the absence of kin who are willing to care for him, Baby S is put in a local place of safety and so begins the slow and administratively numbing process of trying to find him a family.

It is a quest that initially stretches across the country in the (vain, it transpires) attempt to locate his biological father (who does not respond to attempts to find him). Then, when family reunification fails for the second time, and it becomes clear that the child is too old to be adopted locally (not a legal issue, just a reflection of the dearth of adoptive parents in South Africa and their distinct lack of appetite for older children),  it stretches across the world in the hope of finding suitable adoptive parents internationally.

When the case comes to court, Baby S is finally on the brink of happiness, with a loving adoptive family ready to take him to his new home in Canada. Enter the magistrate, who in this version is not quite so heroic. Both anti-adoption and with a personal vendetta against the adoption social worker handling the case, he denies Baby S the opportunity of this new family, setting aside the adoption application and ordering that the child be placed with a granny whom he has never met, and who is sharing a home with her daughter – the very woman convicted of trying to kill the baby.

It should come as no surprise that these versions are so different, until the case has been finalised, that the media is being forced to rely on scanty information and the few people (read, the magistrate, his attorney and the biological family) willing to tell the story. But while it will be some time before a decision is made about the fate of Baby S, these accounts already provide some rather disturbing insights into the judicial process in this courtroom, and specifically, into the matter of objectivity.

First, there is a question as to whether this magistrate should have heard the case at all. When he was allocated the case, the social worker involved asked him to recuse himself because he has a history with her, having alleged back in 2010 that she was using inter-country adoptions to traffic children.

The allegations were taken very seriously at the time, with Canada suspending adoptions from South Africa for the three years that it took to investigate the claims, a moratorium which left 50 potential adoptees in limbo for its duration. In the end, the police found the allegations to be baseless and the provincial director of public prosecutions declined to prosecute.

But it appears that the magistrate was less than satisfied with the outcome, slating the decision and stating publicly that the report compiled by the investigating advocate was a “worthless piece of biased information from someone who is clearly pro-adoption”. Given this magistrate’s role as the whistle-blower in this child trafficking case (his own term), it is perhaps understandable that he felt aggrieved when the charges were dropped.

So, his decision not to recuse himself from a further case involving this social worker is puzzling, probably indicating one of two things. Either he believed that he could remain neutral (despite his personal feelings), or he wanted another opportunity to prove that he was right about her being corrupt, and inter-country adoptions being a form of trafficking, and this time in his own courtroom.

We cannot judge his motivation, but it is clear from the outcome of the case thus far that his bias is still firmly in place. And, while we may sympathise with an individual holding on to an objection after the fact, it seems unprofessional and irresponsible for an officer of the court to disregard a judicial ruling, forgo formal processes for investigating any wrongdoing committed by adoption social workers, and continue to accuse this social worker publicly (in his own courtroom and the Press) of “selling babies”, even though these allegations were found to be baseless.

Second, while family reunification is undoubtedly the gold standard of child protection, there are exceptions. The most notable is if the child is deemed to be at risk. When the magistrate ordered that Baby S be returned to his granny, he knew that the woman convicted of trying to kill him was living with her (she was even sitting next to her in court). He later denied making an order, telling the Press that it was simply a suggestion. But the owner of the place of safety where Baby S has resided for the last two years took it seriously enough to file for an urgent interdict to keep the child in her care. And for his part, the magistrate was committed enough to his “suggestion” to oppose the interdict and label it: “…an unwarranted attack on my integrity and competence as a judicial officer. [She] is wailing and gnashing her teeth that I want to return the child to a mother that wanted to murder him. I deny that.”

It is hard to reconcile this approach or rhetoric with someone tasked with promoting the child’s best interests.

There is even some uncertainty about whether the granny or the biological father – deemed by the magistrate to be the victims in this story, and whose cause he is favouring – still have parental rights to Baby S. According to the Children’s Act, failure to claim a child, or to respond to advertisements designed to inform you of the child’s existence and ask you to come forward, is legally deemed to be abandonment. The penalty is that you can have your parental rights rescinded. If this transpired, there is a troubling question about whether the magistrate was able to summarily reinstate those rights; and if not, why he placed Baby S in the granny’s care without first requiring her to be screened and vetted.

But one of the most worring aspects of this story (which ominously echoes the Judge Jansen incident) is that the magistrate has been willing to share his opinions about inter-country adoptions, the social worker involved, and his rulings on an ongoing case, in such a public and unguarded fashion.

It is bewilderingly reckless, and seems to indicate that he either sees himself as above correction, or that he doesn’t care about consequences (and let’s be honest, neither of those are good qualities for a judicial officer). It is this rather uncomfortable link to Judge Jansen which leads us to an even more uncomfortable question: given the admirable swiftness with which she was sanctioned, why has no one from the legal fraternity or the government corrected or penalised this magistrate for his indiscretions? The silence is somewhat deafening.

One obvious answer is reach: there is undoubtedly a big difference in jurisdiction and therefore potential impact between these two officers of the court. Judge Jansen was certainly able to affect far more people with her decisions than a Children’s Court magistrate. But it would be impossible to argue that any member of the judiciary is too insignificant to be influential.

Like Judge Jansen, this magistrate has been able to dramatically change the lives of those appearing in his courtroom or entering his sphere of control. Just ask the 50 children (for the most part older, or with special needs) within touching distance of being adopted, whose lives were suspended for three years because of his apparently unfounded allegations about trafficking. And then there is Baby S, for whom a reunification ruling could become a matter of life and death. It was the very point made by the government, ironically about Judge Jansen herself. Bottom line is that any member of the judiciary should be held accountable for applying personal bias in the courtroom.

And it is that application of partiality that should probably give the judiciary most pause, because despite the appropriate indignation at Judge Jansen’s outrageous comments on social media, and our certainty that she has brought this subjectivity into the courtroom, we have to wait for a judicial enquiry to prove it. Until then, it remains an implied bias. By contrast, we know about this magistrate’s bias because he has been brazen enough to use it, in this case and potentially others.

So, the answer to why the consequences have been so severe for Judge Jansen but non-existent for this magistrate may lie in the nature of their prejudice. In the case of Judge Jansen, it was around racist perceptions, rightly vilified by the legal fraternity and the government. By contrast, this Children’s Court magistrate’s personal myopia is something that is frequently encountered in the government too. Anti-adoption sentiment is fairly commonplace, and many believe that family reunification is the most important end goal of child protection, and possibly even that the right to culture is on a par with the right to life.

Equally, the unproven allegation that adoption is a glorified form of trafficking is so widely held that the spokeswoman for the Department of Social Development, Lumka Olifant, even used it to justify a decline in adoption rates in her now infamous 2015 “our children are not for sale” statement. The assertion was widely criticised at the time and Olifant was challenged to prove her claim; after all, adoption is one of the most highly regulated and monitored child protection processes in South Africa – and inter-country adoption even more so – so, to assert that it is a front for trafficking is speculative at best and defamatory at worst. But 18 months later she has yet to do so. It speaks to either a massive lack of accountability or (perhaps more concerning) the idea that believing something makes it true. It is an inviolable form of reasoning that we have begun to expect from some sectors of the government. But to experience it at the hands of an officer of the court is both inexplicable and unjustifiable, as is the vendetta against a fellow professional and his loquaciousness with the Press.

Given the huge challenges in South Africa at present, the misdeeds of one lone magistrate may seem rather inconsequential. But, with Judge Jansen as a cautionary tale, can we really accept an officer of the court applying his own personal beliefs in the courtroom (and the Press) with impunity (even if those opinions are commonly held by members of the government)?

True objectivity may be something of a myth, but surely we should require the judiciary to aspire to neutrality, and apply some committed self-monitoring. In its absence, our answer must unquestionably be: no, it isn’t acceptable. Of course, it remains to be seen whether anyone with decision-making power will agree. We will certainly watch this space with interest. DM

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