In her Work Plan 2020 speech, the Presiding Judge of the Family Justice Courts (FJC) Justice Debbie Ong announced that FJC and the family justice community will be co-creating a renewed vision of family justice informed by principles of therapeutic justice (TJ).
The seeds of TJ were planted in the mid-1990s when mediation and counselling were incrementally introduced into the family justice system. The establishment of the FJC in 2014 as a single unified court marked a historical milestone and it was envisioned, at that time, that FJC would evolve to become a problem-solving court. TJ presents us with a common language with which to renew that vision together with all stakeholders in the community.
In essence, TJ is a "lens of care" through which we can examine the extent to which the legal landscape of substantive rules, laws and legal procedures, as well as the roles and behaviour of the family justice participants, produce helpful or harmful consequences. This could lead to reform of laws and procedures as well as more intentional and helpful interventions by family practitioners and other professionals in the space. It is hoped that our collective efforts would help to engender a mindset shift in the community. All stakeholders should have the same understanding that the resolution of family disputes need not be adversarial in nature and should be solutions focused, even when litigation is required.
Here are some frequently asked questions on TJ.
Family cases are special in nature. People come to the Family Courts to rearrange their most private and intimate family affairs.
Underlying many family disputes are non-legal concerns. Powerful emotions sometimes overwhelm rational thinking and cloud judgment. Anger, hurt and grief are often the drivers of litigation, and these emotions may not dissipate with a case when it is concluded in court. Indeed, the re-ordering of family ties and obligations, coupled with financial stress and disruption of division, mean that parties, their children and even their extended families may remain at strife long after the court event.
Children suffer as a result of intra-parental conflict. Social science research has shown that factors such as being under constant stress and anxiety, feelings of guilt, abandonment and shame as well as the stress of financial uncertainty can hinder emotional growth and a healthy development of young children.
The court process therefore should help to manage the consequences of family breakdown and nudge families to move forward in the fairest way possible, equipping them, where appropriate and necessary, with tools and resources that will help them move forward legally, emotionally and financially, without needing to come back to the court process. Practitioners play a pivotal role in mitigating the potential damage that arises in family disputes.
TJ is the study of the role of law as a therapeutic agent.
It views the law as a social force that may produce therapeutic (i.e. helpful) or anti-therapeutic (i.e. harmful) consequences, whether intended or unintended. Such consequences may flow from the operation of substantive rules, laws, legal procedures, or from the behaviour of legal actors such as lawyers and judges.
What TJ does:
TJ does not:
TJ is a “lens of care” through which we can examine the extent to which the legal landscape of substantive rules, laws and legal procedures (i.e. the hardware), as well as the roles and behaviour of the family justice participants (i.e. the software), produce helpful or harmful consequences.
The objective would be to build good hardware and great software as we would need both. For example, the mediation process is good TJ hardware as it enables parties to participate in finding solutions for themselves. However, poor application may still result in anti-therapeutic outcomes. Conversely, even if there is a court process that may not be TJ friendly, a judge applying the right touch and lawyers focused on problem solving can still steer the parties towards helpful and workable outcomes.
Adopting a TJ lens together will help us achieve justice that:
Elements of TJ have already been introduced over the years. We already have good structures and some of our family practitioners have been practising in a TJ inclined fashion.
We should adopt a common language to consolidate our past efforts and sharpen the way forward. For example, when a judge takes the time to explain the trial process to a self-represented litigant or when a lawyer helps the client understand that divorce pleadings and affidavits should not be drafted in a way that is deliberately provocative to the receiving party.
Each of us has an important part to play in our different roles. TJ can help us broaden our field of inquiry to be more mindful and intentional of the therapeutic and non-therapeutic effects of our processes and actions, to seek to consider the underlying problems faced by the parties and to address them.
FJC is piloting a multi-disciplinary team approach, which triages suitable cases to a single team comprising of hearing judges, a judge-mediator, court family specialists and a case manager. The objective is to provide a judge-led space incorporating multi-disciplinary elements at an earlier stage of proceedings, before matters escalate and become unnecessarily acrimonious. Within that space, this team will work together to seek to provide holistic outcomes for the family. It is hoped that even when adjudication is necessary, greater support for the families is brought in earlier to provide sustainable solutions that better address the consequences of family breakdown.
This approach requires a concerted effort between the court, lawyers, court users and specialist services within the community. Each needs to be sensitised to the new lens through which a case is being viewed and be ready to coordinate efforts more effectively to achieve lasting outcomes.
Applying the TJ lens, all the family justice professionals involved have to be aware that what they do and say could have “therapeutic” or “anti-therapeutic” consequences on the parties, and the family’s ability to deal with root causes of family conflict.
TJ calls for an awakening of our consciousness and consciences as judges, court staff, family law practitioners, psychologists and counsellors to embrace these values and to encourage participants to be fully engaged in solving problems that required durable solutions.
Both the court and the lawyers will undergo specialised training and build on specialist capacities to enable them to take on the unique problem-solving role of a family judge and the family practitioner.
The TJ approach is about adopting a “lens of care” to examine the extent to which the laws, rules and legal procedures, as well as the behaviour of the participants in the family justice system could produce helpful or harmful consequences.
It is believed that applying a TJ approach could lead to a more amicable and sustainable resolution of issues through greater involvement and integration of the varied efforts of the court and its support services, external agencies, the family bar and the litigants. It is hoped that these collective efforts will engender a mindset shift in the community about the resolution of family disputes. Family disputes can be non-adversarial and need not be combative in nature even when litigation is required.
Parties should not: