Therapeutic Jurisprudence in Aotearoa New Zealand’s Family Justice System

Guest Blogger Emily Stannard explores how legal actors can improve the therapeutic impact of their roles at an individual level, with immediate effect…

Therapeutic Jurisprudence (“TJ”) is the idea that “whether we know it or not, whether we like it or not, the law is a social force with consequences in the psychological domain”. The psychological impact of the law has typically not been an area of primary focus for lawyers, as lawyers are trained to apply the facts to the law in a rational manner.

TJ has four areas of inquiry:

* how the law creates social dysfunction;

* the therapeutic effect of legal rules;

* the therapeutic effect of legal procedures; and

* the therapeutic effect of legal roles (such as lawyers and judges).

Change to the overall structure of a legal system, to legal rules, and to legal procedures takes time, sustained effort, and movement by people at the helm of decision-making power. In contrast, legal actors can improve the therapeutic impact of their roles at an individual level, with immediate effect. Such changes are important.

The way legal actors behave can significantly influence the therapeutic or antitherapeutic impact of the law. In fact, it can be more important than the legal rules and procedures. This is evident in the following quote from a 2002 survey about the experience of Māori in Aotearoa New Zealand’s Family Justice System (“FJS”):

I don’t think that changing the Act will change much for Māori – it is still going to depend a lot on your ability to relate to your lawyer, or more importantly the ability for your lawyer to relate to you. It doesn’t matter what you do to it (the Act) if the system is still cold and hard and there is no education around it or human discussion given to it…[t]hey’re only going to sugar-coat the wording.

Concern about how legal actors treat people going through Aotearoa New Zealand’s FJS are present today. In a 2018 seminar, her Honour Judge Mary O’Dwyer said the three main challenges facing the Family Court today are the need to:

“Adapt to and cater for increased diversity;

Resolve our work with humanity and compassion; and

Deliver procedural fairness and build public confidence.”

All three of these challenges can be met, at least in part, by legal actors changing the way they go about their work. 

Vectors

TJ is one of the vectors of the comprehensive law movement, a trend in the law “towards a common goal of…more comprehensive, humane, and psychologically human way[s] of handling legal matters”. These vectors include restorative justice, preventive law, holistic law, collaborative law, facilitative mediation, and the problem solving courts.

The vectors have two things in common:

* a desire to maximise the wellbeing of those involved in a legal matter; and

* a focus on more than just legal rights, responsibilities, obligations, entitlements and duties.

The vectors other than TJ tend to focus on a normative way of achieving their aim. In contrast TJ is a lens through which to view the law. A lawyer practising TJ can use the other vectors to provide a normative way of making their practice more therapeutic, for example, using legal check-ups which emerged through preventive law. TJ can also be described as the “common thread running through the various [vectors]”. Either way, the use of other vectors can assist legal actors in improving the therapeutic impact of the law.

Other disciplines

TJ promotes the use of other disciplines in the application of the law. TJ does not require legal actors to be experts in these areas. However, a basic awareness of attachment theory, the impact of violence, the impact of conflict, and knowledge of trauma will assist lawyers in understanding their clients’ needs and understanding their behaviour.

Aotearoa New Zealand’s Family Justice System

Aotearoa New Zealand’s FJS has a dual therapeutic and judicial mandate. The balancing of the two roles has created difficulty since the Family Court’s inception in 1981. The FJS has been reviewed four times. Each review has considered how the dual roles should be balanced. The most recent review was completed in mid-2019. There have been concerns that the FJS is not meeting its therapeutic mandate. While some of the concerns relate to the 2014 reforms, some have persisted for decades.

Some of the most pressing concerns predate the 2014 reforms. These include the FJS not meeting the needs of Māori, migrants or survivors of family violence. There have also been concerns raised about bullying by the professionals in the FJS. Family legal actors can practise TJ to improve their understanding of these issues and improve the way they treat people who are particularly vulnerable to being poorly treated by the FJS. For example, an understanding of tikanga could promote inclusion for Māori. Asking about dowries, in laws,and visas could prevent lawyers from missing important issues when working with migrants.

Many of the issues in the 2019 review focused on changes that legal actors could make. This is consistent with the fact that how legal actors carry out their work can promote or decrease the therapeutic impact of the law. The Independent Panel reviewing the FJS recommended the establishment of Te Korowai Ture-ā-Whānau, a multidisciplinary system, joining up in court and out-of-court processes. The Independent Panel’s recommendations almost universally promote TJ in the FJS.

An eye to the future

While the changes recommended by the Independent Panel are promising, they require proper resourcing to be effective. Some of the changes have come into play since the writing of my thesis, such as lawyers being able to act in on notice proceedings under the Care of Children Act 2004. Most of the recommendations have yet come in to play.

In the meantime, it is hoped that this thesis will encourage legal actors to use their roles to promote a therapeutic aspect of the law, independent of legal rules and procedures. It is possible answer the FJS’s challenges to adapt and cater to increased diversity, to resolve our work with humanity and compassion and to improve procedural fairness without waiting for legislative reform.

Emily Stannard is an associate at Willis Legal in Hastings, New Zealand.

Emily Stannard’s full thesis is available here.

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Court Craft during the Coronavirus pandemic – a resource for judiciary (TJ Court Craft Series #16)

The Judicial College of Victoria has published an excellent resource for the judiciary who are navigating new ways of working in the Coronavirus pandemic.

As Judge Lisa Hannan, Chief Magistrate of the Magistrates’ Court of Victoria writes in the forward to the resource:

“During this challenging time there is more onus on us as judicial officers to ensure people feel they have been treated with dignity and respect; that they understand court procedures and orders and can participate fully in their court proceeding. This is particularly the case where parties experience substance addiction, mental or cognitive impairment and/or the impacts of trauma.

Dignity and respect are core values of therapeutic jurisprudence as they are key to maximising the wellbeing of people who are appearing in courts.

This easy to read resource, Courtcraft during the Coronavirus pandemic, provides the judiciary with insights, practical tips and links to further resources including:

  • The importance of acknowledging the impact of the pandemic and praising people’s resilience;
  • How to manage the use of technology
  • The need to focus on consistency and connection
  • Tailoring our approaches to meet the needs of the people appearing in our courts; and
  • Encouraging access to supports.

The TJ Court Craft Series provides practical insights and tools for judges interested in therapeutic jurisprudence, problem solving or solution-focused approaches.  Read other blog posts in the Court Craft Series here.

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“Clemency”, the movie, delivers a powerful therapeutic jurisprudence relevant message about the death penalty in America

Guest blogger David Yamada, Professor of Law at Suffolk University Law School in Boston and the founding board chair of the International Society for Therapeutic Jurisprudence, writes…

At a 2009 TJ symposium hosted by Florida Coastal School of Law, professor and death penalty lawyer Cynthia Adcock presented a compelling talk about the anti-therapeutic impact of the death penalty on all major parties involved with executions, beyond the condemned prisoner. These individuals include family members of both the victim and the prisoner, prison personnel assigned to carry out the sentence, lawyers and judges, and many others.

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Talking about Therapeutic Jurisprudence (TJ) at Non-TJ conferences

Guest Blogger Professor Michael L. Perlin, New York Law School, explores how we can expand the reach of TJ and grow the worldwide TJ community…

In 2019 I attended American Society of Criminology conference where I presented two TJ-related papers— “Man, I Ain’t No Judge”: The Therapeutic Jurisprudence Implications of the Use of Non-judicial Officers in Criminal Justice Cases and “See This Empty Cage Now Corrode”: The International Human Rights Implications of Sexually Violent Predator Laws. I will, over the next few months, be turning both of these into articles that will, eventually if all goes well, be accessible on data bases available to lawyers and to social scientists.

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Can a therapeutic jurisprudence approach improve Australian parole systems?

Guest blogger Max Henshaw writes…
Nearly half (46%) of adults released from prison in Australia will return within two years. Coupled with growing, and disproportionate, prisoner numbers, Australia is failing to reduce recidivism and facilitate desistance from crime.

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Judicial conciliation in a ‘therapeutic key’ in Italy

Guest blogger Giuliana Romualdi, Lecturer in Mediation and ADR Procedures, University of Siena and PhD in civil procedural law at the University of Bologna, writes…

The inefficiency of civil justice is one of the main issues of the current political and institutional debate in Italy. There are various reasons for this inefficiency: despite a high productivity in terms of courts’ output, the Italian civil justice system is characterised by a high level of litigiousness compared to other European countries. Delay in the resolution of disputes is also caused by limited resources (both human and economic) of the justice administration, by frequent legislative changes, the low court fees, and according to some authors, by the high number of lawyers. Since 1990, sectorial reforms of the civil process have succeeded year after year, but the poor results are there for all to see. The length of proceedings is less serious in the criminal justice system thanks to the Code of Criminal Procedure (issued in 1988), which represented an overhaul of the system, with the introduction of alternatives to trial.

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Sharing Therapeutic Jurisprudence Practices & Techniques

Therapeutic Jurisprudence founder, Professor David Wexler, calls on us to collect, disseminate, digest and employ creative TJ practices and techniques…

When we speak of TJ “practices and techniques”, we refer to the “roles” of legal actors—typically judges, lawyers, and others working within the legal realm.  In other terminology, the practices and techniques can be seen as the “therapeutic application of the law”(TAL), in contrast to the “therapeutic design of the law (TDL), which relates to the operative legal landscape of rules and procedures.

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Psychological Trauma, Social Pain, and Therapeutic Jurisprudence

cindy-new

 

Guest Blogger Dr Cindy Brooks Dollar writes…

What might our world – not just our courts – look like if we committed to practicing the components of therapeutic jurisprudence (TJ)?  Can we extend TJ’s principles beyond its intended legal context and into all of our social interactions?  Given TJ’s interdisciplinary foundation, it seems plausible to extend its principles beyond the legal sphere.

In this blog, I argue that sociology, especially Existential Sociology, offers a means by which to broaden the applicability of TJ’s components since the two perspectives share some concerns and solutions about social life.

The presence of TJ may be identified by various characteristics, but I see three
components as fundamental:

■ Building and maintaining trust and legitimacy by being respectful in
interactions;
■ committing to inclusive participation through encouraging an expression
of standpoint of the parties involved; and
■ transparently making decisions in hopes that the decisions will be
perceived and understood as fair (Dollar, 2018).

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Therapeutic Jurisprudence in the UK: Reflections on the first meeting of the ISTJ UK Chapter

Guest bloggers Dr Emma Jones and Dr Anna Kawalek (Co-Chairs of the UK Chapter) report…

On Thursday, 6th June 2019, participants from across the UK and beyond converged on The Open University Law School in Milton Keynes to attend the first meeting of the International Society for Therapeutic Jurisprudence’s UK Chapter.  With six diverse presentations coupled with lively questions and discussions, it was an engaging and inspiring day that hopefully marks the start of even greater things to come.

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AUSTRALIA’S FIRST RESEARCH MEASURING JUDICIAL STRESS: WHAT DOES IT MEAN FOR JUDICIAL OFFICERS AND THE COURTS?

The legal philosophy of Therapeutic Jurisprudence (TJ) invites us to examine how laws, legal processes and the roles of legal actors may be undertaken in a way to maximise wellbeing. We often reflect on the wellbeing of people coming before our courts, but what about the wellbeing of the presiding judicial officers? In this blog we profile groundbreaking empirical research on this topic...

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