The recent family law decision of His Honour Justice Peter Jackson of the Family Court of England and Wales has been doing the rounds in the legal news.
The case involved a dispute over the future living arrangements of a 14 year old boy. The young person had been living with his mother. His father wanted him to live with him in another country. The young person wanted to live with his father but his mother opposed the application.
The dispute was no doubt emotional and stressful for all involved and the decision had the potential to cause more distress.
His Honour Justice Jackson made his decision in accordance with the relevant law and due process but altered his approach in such as way as to maximise the wellbeing of the parties and in particular the young person.
In doing so His Honour took a therapeutic jurisprudence approach (possibly unwittingly) that is, performing his role in such a way as to maximise wellbeing without undermining his other obligations according to law.
First, His Honour managed the hearing in such as way as to ensure that the young person felt heard. He described his approach as follows:
One issue that arose was whether Sam should give evidence at the hearing. He wanted to do so and his father supported that, but his mother and stepfather and the experienced Cafcass officer disagreed, saying that I should instead see him privately, which I was willing to do. In fact, I decided that Sam should give evidence briefly at the beginning of the hearing, but that he should not be questioned directly by either of his parents. Instead, each of them prepared five questions which, after his solicitor had asked him five introductory questions, I put to Sam myself. In this way, his evidence took less than half an hour, and he was not subject to direct questioning by either parent. Sam was satisfied that he had got his point of view across, and been seen to do so. At the end of his evidence, he left court and went on a school trip for the rest of the week, which was what he wanted. After he had gone, I heard evidence from the three parents and the Cafcass officer.
Second, His Honour drafted the written decision in such a way as to ensure that his reasons were able to be understood by the young person and with a great deal of compassion. His Honour availed himself of the technique of a "letter to the loser" addressed to the young person. The letter commenced as follows:
It was a pleasure to meet you on Monday and I hope your camp this week went well.
This case is about you and your future, so I am writing this letter as a way of giving my decision to you and to your parents.
When a case like this comes before the court, the judge has to apply the law as found in the Children Act 1989, and particularly in Section 1. You may have looked at this already, but if you Google it, you will see that when making my decision, your welfare is my paramount consideration – more important than anything else. If you look at s.1(3), there is also a list of factors I have to consider, to make sure that everything is taken into account.
The information I have comes from a variety of sources. There are the papers from the old proceedings years ago. There are more papers from the proceedings this year, especially your own statements, your mum and Paul's statements, your dad's statements, and the report of Gemma, the Cafcass officer. Then there is the evidence each of you gave at court. I have taken all this into account.
When I was appointed as a judge, I took the oath that every judge takes to apply the law in a way that is fair to everybody. Some people will say that this or that decision isn't fair, but that's usually their way of saying that they don't like the decision. People who like decisions don't usually say they are unfair. Here, your father loudly says that Cafcass is biased against fathers and during the hearing it became clear that he doesn't have much confidence in me either. He is entitled to his view, but I can tell you that I found no sign of bias on Gemma's part; on the contrary, I found her someone who had thought very carefully about you and your situation and used her professional experience of many, many family cases to reach an honest view of what would be for the best.
The decisions that I have to take are these: (1) should you go and live in Scandinavia? (2) should you become a citizen there? (3) if all your parents are living in England, should you spend more time with your dad? (4) if your dad goes to Scandinavia, and you stay here, how often should you see him?
Here are the main matters that I take into account…
Sam, I realise that this order is not the one that you said you wanted me to make, but I am confident that it is the right order for you in the long run. Whatever each of your parents might think about it, I hope they have the dignity not to impose their views on you, so that you can work things out for yourself. I know that as you get older, you will do this increasingly and I hope that you will come to see why I have made these decisions. I wish you every success with your future and if you want to reply to this letter, I know that your solicitor will make sure that your reply reaches me.
Therapeutic jurisprudence may be a mouthful but the concept is simple – that the law, its processes and the roles of legal actors can improve the wellbeing of people (or not).
In a court setting, TJ encourages legal actors – judges, court staff, lawyers, prosecutors – to reflect on whether they could carry out their role a little differently to try to improve the wellbeing of the people they are dealing with.
Importantly, TJ does not ask these legal actors to ignore the other requirements of their role, for example, the need for a judge to apply the law or due process.
In thinking about how to improve wellbeing, TJ invites us to draw from various other disciplines including the social sciences.
One field that TJ draws from is that of procedural fairness (or procedural justice).
An excellent article written by Judge Steven Leben, Thoughts on the Judge’s Written Work, sets out the elements of procedural fairness and explores how these elements can be used to improve written decisions and the legitimacy of decisions. The elements described by Judge Leben are:
- Voice: the ability of litigants to participate in the case by expressing their viewpoint, directly if possible.
- Respect: individuals are treated with dignity and their rights are openly protected.
- Neutrality: consistently applied legal principles, unbiased decision makers, and a transparency about how decisions are made.
- Trustworthy authorities: authorities are benevolent, caring, and sincerely trying to help the litigants, a trust that is garnered by listening to individuals and by explaining or justifying decisions that address litigants’ needs.
These elements were present in the way Justice Jackson conducted the hearing and the way that the written decision was crafted.
Therapeutic Jurisprudence also invites judges to draw on other disciplines to inform how they may go about their role.
In this case the decision is appropriate to child development. His Honour used the conversational technique of a letter, simple language, short paragraphs and references to popular culture, thus ensuring the decision was able to be read and understood by a 14 year old.
In this case His Honour has drawn on psychology by acknowledging the stress caused by the proceedings and undesirability of ongoing future proceedings (pgh 11). He has sought to prevent future psychological stress by making an order that will limit future applications (Order F).
It is not clear whether His Honour knew about Therapeutic Jurisprudence but it is not uncommon for judicial officers, lawyers and other legal actors to be striving to maximise wellbeing without knowing of the theory of TJ. As a good friend recently said, "people come to TJ through their practice". The great thing about finding out about TJ is that it provides you with a theoretical framework, an international network and a raft of literature that can support and deepen your practice.
The full text of Justice Jackson's judgement is available here.
For another example of therapeutic judicial decision writing see a previous post: "Mainstream judges apply therapeutic jurisprudence in a child protection case"
And for more resources on Procedural Fairness see Proceduralfairness.org