Having successfully established the existence of legal instruments, it is important to analyze the mode of implementing the written laws. Laws do not exist in a vacuum, they exist in a society and the society has forever been known for its resistance to change. Take for example a scenario in which the legislature enacts a law which makes corporal punishment for children illegal.
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Present the scenario in a societal setting which has carried out this practice for long. Obviously, the expected outcome is some form of resistance from the society. With the law in place and the prevailing resistance, the court must step in and either implement the law as is or interpret it to determine its legality.
An effective court system is a sure way of ensuring the operability of any legal instrument. When the legislative arm of government enacts laws, there should be some form of certainty as to its implementation and most especially where the legal instrument is sound. In cases where the courts are not keen to reinforce the legislature’s efforts, it can be said that the whole system has failed. That notwithstanding, seeing as the court is a big part of the government, most times the blame falls squarely on the government.
Although courts are meant to promote justice, one can positively say that at times it becomes hard to further this mission and objective. The evident legal divide is a common feature in the court rooms (Brico, 2018). As per s research by the American Psychological Association the likelihood of abusive fathers succeeding in custody cases is way higher than that of the abused mother (Brico, 2018). The resultant effect of such glaring injustice exposes the child to a lifetime of not only anguish and emotional torture but also a violent unhealthy environment. This ultimately affects the child’s right to grow up in a conducive environment. Protracted court battles can in their own form be an abuse especially where the children victims are forced to constantly interact with their perpetrators in the court rooms in pursuit of justice.
Despite the well-known fact of the role the state should play when it comes to rights of citizens and more so those in the margin of vulnerability, the 1989 landmark decision in DeShaney v. Winnebago County Department of Social Services came as a surprise to many. The honourable judge in that matter opined that it was never the mandate of the government to protect abused children and any other citizens in cases where it is not an active participant of the harm (Co, 2017). This is a perfect example of the few cases in which the court has purported to mislead the government when it comes to children rights. It is the supreme duty of the state to intervene and protect its citizens irrespective of the perpetrator.
Similarly, some courts have always viewed child witness differently and are not as eager to admit their testimony. The evidence is often scrutinized jealously before admission. This depicts a system that is still struggling under the influence of the infamous Crawford v. Washington. This case set a precedent which requires thorough scrutiny of evidence before the same can be admitted (Harmon, 2014). This means that if presented with a case scenario in which the only witness to the abuse is a child and the threshold is not met, the likelihood of the perpetrator walking scot-free is high. Instead of adamantly applying the scrutiny rule, the courts should adopt a more flexible means of analyzing child evidence. Aptly put, it will be in line and the spirit of the doctrine of presumed competence for every witness.