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Title

Therapeutic jurisprudence and the development of family courts in Ireland.

Abstract

While specialised family and children's courts are commonplace throughout Europe and in other common law jurisdictions, Ireland has yet to develop such courts. Despite the Family Court Bill, the purpose of which was to establish a dedicated family court, being announced in 2018, at the time of writing it had reached the pre-legislative scrutiny stage. This paper considers the importance of therapeutic jurisprudence to the development of family courts. It examines the international literature on therapeutic jurisprudence and considers how family courts should adhere to therapeutic principles in order to create respectful and supportive court environments, before arguing that any new family court model in Ireland should also adhere to therapeutic principles. This paper should therefore act as a useful guide to politicians, policy makers and the judiciary, all of whom will surely be involved in the future development of family courts in Ireland.

Introduction

Family law typically refers to a set of legal rules which apply to "relations between persons who are connected with one another by descent (for example, the relationship between a child and its mother or father) or by marriage (or registered partnership)." [1] Family and children's courts are commonplace throughout Europe and other common law jurisdictions. For example, England and Wales, Scotland, Australia, the United States, and Israel all operate some form of specialist family or children's court system. Although Ireland currently lacks a specialised family or children's court system [2] , the proposal to establish a system of specialist family courts in Ireland dates back to the mid 1990's, when the Irish Law Reform Commission identified "serious deficiencies in the Irish family justice system," and family law was described as "a system in crisis" [3] . The Commission recommended that:

It is, therefore, fair to say that over the past 30 years the social fabric of Irish society has changed. Specifically, Irish views on what the term family actually means in an Irish context have changed. These changes have resulted in knock on effects for inheritance law, tax law, adoption law, and with regards to the subject matter of this paper, family law.

Problem solving courts and the role of therapeutic jurisprudence

Problem solving courts are not a new concept, and there is a wide range of literature available covering their genesis, their growth, their successes, their failures, as well as the different issues which they tackle. [21] Problem solving courts are generally designed to deal with criminal offending that is connected to social lifestyle problems, such as drug or alcohol misuse or mental health problems. They aim to provide an interface between human and social issues, and between the law and criminal justice, by developing therapeutic spaces to foster rehabilitative outcomes amongst individuals with complex needs. [22] By applying problem solving justice, hallmarks of the court model include collaborative supervision and intervention between various agencies to allow for a rounded response to the complexities facing those who appear before the court, a procedurally fair environment, accountability through judicial monitoring, and a focus on therapeutic outcomes. They operate in adherence with the concept of TJ by engaging with the human, emotional, and psychological ramifications of the law and legal processes, and with those that encounter its institutions. [23]

TJ is the study of the law of law as a therapeutic agent. [24] The therapeutic agent is typically the judge, and from this perspective the role of the judge should be considered as "motivating rather than intimidation...emphasising the standing and authority of the judge or magistrate, rather than the judge or magistrates power to impose sanctions." [25] With a judge acting as the therapeutic agent, and through their applying the principles of TJ, they "strive to protect families and children from present and future harms, to reduce emotional turmoil, to promote family harmony or preservation, and to provide individualised and efficient, effective justice." [26] Furthermore, TJ is a legal philosophy which "aims to develop approaches which maximise the positive psychological and emotional effects of the law and, using the behavioural sciences as an underpinning, seeks to develop therapeutic outcomes for all stakeholders." [27]

TJ is premised on the notion that socially just, emotionally intelligent and compassionate responses should dominate the theory, conceptualisation and practice of the law. [28] It promotes an interdisciplinary approach for understanding legal issues through psychological cognitive analyses, [29] and calls for mental health workers, lawyers and judges to "apply techniques drawn from psychology and social work to motivate offenders and patients to accept rehabilitation and treatment and to pursue it successfully." [30] Through advocating these principles, TJ adopts a problem solving, proactive and results orientated approach "that is responsive to the current emotional and social problems of legal consumers." [31] It reflects a focus on the extent to which "legal rule or practice promotes the psychological and physical well-being of a person subject to legal proceedings" [32] as well as an exploration of how mental health and related disciplines can help to shape and develop the law.

Judicial monitoring is considered to be one of the most lauded elements of the problem solving court model. It involves bringing offenders back to court for regular reviews and discussion of their progress (or failures) before a dedicated judge, who attempts to increase compliance through motivational styles of engagement aligned with TJ principles. Having a dedicated judge, rather than one moving through a circuit is vital. As judges become familiar with offenders and their life circumstances they form relationships which enable them to monitor process by engaging in a therapeutic style of court practice. A focus on outcomes involves operating a system of sanction and reward within the court environment, whilst constant monitoring and reflection on these allows for determining what does and does not work for each offender, which bears fruit to rehabilitative outcomes. As such, TJ principles allow courts to become holistic environments and engage in shaping new services to ensure client successes. Therapeutic interactional styles involve treating defendants and court participants with decency, dignity and respect to afford them a sense of voice and validation. This can encourage compliance with judicial decisions through accountability, minimise harmful consequences of offending and victimisation, and enhance restorative legal goals and outcomes. [33]

TJ is not, however, without its critics. First of all, there is a longstanding debate over its broad and vague conception of what the term 'therapeutic' actually means. It has been argued that it should mean some aspect of either physical, psychological or emotional wellbeing. [34] Any agreed upon definition will, however, have to be in the broadest of terms, as "different laws, legal processes and legal actors may affect different aspects of wellbeing." [35] It has also been claimed that TJ is overtly paternalistic through the use of mandated treatment in certain problem solving courts, [36] "which regularly use coercive and paternalistic methods, even though TJ has come to be regarded as their underlying philosophy." [37] Such coercive treatment raises serious ethical concerns, as well as questions over the individuals' right to bodily integrity and personal autonomy, and in that context, it could be argued that TJ has overreached and has gone too far in terms of impact upon the lives of offenders. TJ has also been criticised as being overly offender and court focussed, often at the expense of victims, especially in cases involving family based violence. [38]

It has been claimed that TJ is in fact overly conservative, "in that it views the public as homogenous, without recognising individual and group differences." [39] However, TJ has also been criticised for not going far enough, and that it should be viewed as "the basis for an alternative approach to justice, rather than a lens relative to the existing legal system." [40] This has, in turn, built on debates over whether TJ is in fact a useful tool to help understand the interface between law and behaviour. [41]

Family courts in common law jurisdictions

While the exact nature of family courts will vary between jurisdictions, advocates of a family court system have identified several components as being essential to a genuine family court system. These include "(1) comprehensive subject matter jurisdiction over family-related legal matters (2) a 'one family, one team' assignment system, designed to ensure that all matters affecting a family are handled by a single judge or judicial team (3) an emphasis on inter-disciplinary training and collaboration and (4) the provision and co-ordination of a comprehensive range of court - connect family service." [42] Family courts are typically characterized by a therapeutic and holistic approach to family law problems, and unlike criminal courts, there is no obligation on parties to participate. They place an emphasis on, and tend to be, problem solving in nature, by providing a wide range of family services. [43]

Family Courts are not, however, problem solving courts which as stated earlier are typically designed to deal with criminal matters. Sometimes these criminal matters may be related to drugs or alcohol, and this is how Family Drug and Alcohol Courts (FDAC) developed in the United Kingdom and Family Drug Treatment Courts (FDTC) developed in Australia, as an alternative to the traditional family court. These models will be discussed later in this paper.

In England and Wales the family law system aims to help families in avoiding disputes and, where disputes arise, to help resolve them expeditiously. If possible, the parties are encouraged to resolve their disputes out of court, through mediation or arbitration, to try and alleviate the possible damaging financial and emotional impact that prolonged ligation may have on the parties. Mediation will generally involve a neutral facilitator who assists the parties in determining the issues and reaching a fair compromise, while arbitration relies entirely on a third party to reach a binding decision. [44] When disputes do come to the courts, the cases are dealt with by magistrates and judges specially trained to deal with issues affecting families. Where children are involved the family judge's primary concern will be to act in the child's best interest. While the family law system of England and Wales is primarily adversarial, judges and magistrates work to make the circumstances of family disputes more inquisitorial where possible. These approaches are not necessarily opposite ends of a spectrum, rather they are "contrasting ways of conducting or approaching legal proceedings, and no legal system fits precisely into one category." [45] Hearings take place in private and they are conducted in an informal setting: the judge does not wear traditional judicial robes, and their role is one whereby they try to keep people calm and remain sensitive to differing points of view. This helps reduce any apprehension those involved may have and allows parties to tell the judge what they want to say. [46]

The family courts in England and Wales cover aspects of both private and public law. Private law cases are brought by private individuals, generally in connection with divorce or the parents' separation, parental responsibility, financial applications, special guardianship orders, or orders under Section 8 of the Children Act 1989, which can be used to settle where a child lives, parental contact and responsibility and other specific disputes. Public law cases are brought by local authorities or an authorised person (currently only the National Society for the Prevention of Cruelty to Children) and include matters such as care orders, supervision orders and emergency protection orders. [47]

However, the family law system has in England and Wales has evolved to incorporate Family Drug and Alcohol Courts (FDAC) as an alternative to the traditional family court. The FDAC model aims "to treat parental substance misuse problems, as well as to adjudicate regarding questions about whether children should remain at home, or return if already removed, or be removed permanently from their parents' care." [48] These courts operate as a collaborative enterprise between the family courts, the health service, the charitable sector and the government. The family welfare approach emerged out of the high number of children taken into state care each year as a result of parental neglect linked to drug and/or alcohol misuse. An evaluation of the FDAC model [49] found that there were higher rates of child-parent reunification among families receiving court intervention, compared to those who did not. It also found that more mothers and fathers ceased drug use than those in the non-intervention sample. Parents reported valuing and benefiting from the judge's personal input and oversight of their case, the knowledge and awareness it gave judges of them as parents, and the motivation the more human-centred, compassionate style gave. What needs to be highlighted from the findings is that as few as one third of the families receiving the specialist intervention were reunited with their children after going through the programme. In a one-year follow-up sample just 32 out of 106 families were eligible for reunification. This illustrates the majority of families engaged in the FDAC have their children placed in permanent alternative care, despite the problem-solving support they receive. [50]

In Scotland there are no specialist family courts. Instead, there are detailed procedural court rules applicable to different types of family law court cases. These rules facilitate the day-to-day operation of family law cases in Scotland. The Children (Scotland) Act 1995 provides for the acquisition and exercise of parental responsibilities and rights, the paramountcy of the child's welfare and the granting of court orders such as residence and contact awards. There is also a requirement to determine whether a child wishes to express a view where they are considered to have the capacity to do so. In such circumstances the court must take account of that view. The Children (Scotland) Bill 2019 was published alongside the Family Justice Modernisation Strategy, outlining the government's longer term commitment to updating the family law system in Scotland. Two of the key aims of the Children (Scotland) 2019 Bill are to place children's best interests at the heart of family cases and to ensure that their views are heard. [51]

In the United States many states have restructured their courts to incorporate a system of Unified Family Courts. Such courts provide "a fully integrated, comprehensive approach to handling all cases involving children and families, while at the same time resolving family disputes in a fair, timely, efficient, and cost effective manner." [52] Unified Family Courts consist of a specialized court structure that is either a separate court, or a division or department of an existing court, and is established at the same level and receives the same

resources/support as a generalist court; comprehensive subject matter jurisdiction over the

full range of family law cases, including juvenile delinquency and child welfare; a case management and case processing system that includes early and hands-on contact with each family law case and a judicial assignment system that results in the family appearing before one judge for the completion of one case or one case management team; an array of court-supplied or connected social services that meet the non-legal needs of litigants, particularly those that exacerbate family law problems; and a user-friendly court that is accessible to all family law litigants, including the large volume of self-represented litigants. [53]

The Family Court of Australia is a superior court of record established in 1975 under Chapter 3 of the Australian Constitution. It deals typically with family law matters, including divorce applications, parenting disputes, and the division of property when a couple separate. Western Australia is the only Australian jurisdiction that has established a separate State Family Court. A Family Court Counselling Service operates within the Family Court and it has developed a Child Inclusive Conference model which places the best interests of the child at the centre of the court process. Family Law Magistrates are assisted by a family consultant, who is a qualified psychologist or social worker, in child-related proceedings. Their role is to read files and make enquiries about police and Department for Child Protection and Family Support information regarding the parties and the children. This information is reported to the Family Law Magistrate in open court in the presence of the parties. The family consultant may also suggest appropriate therapeutic services to which the parties may be ordered or referred. [54]

The first Family Drug Treatment Court (FDTC) in Australia was established in Victoria on a pilot basis in 2014, offering a judicially monitored, therapeutic 12-month program conducted in a highly supportive non-adversarial environment. The program seeks to engage parents whose children have been taken into care due to parental substance misuse or dependence and uses intensive case coordination and holistic therapeutic intervention to address issues of substance misuse with the aim of achieving safe and sustainable family reunification of parents and their children. [55] An evaluation of the pilot programme demonstrated that the model was considered appropriate, that it worked in the Australian context and overall it was described by stakeholders as being superior to the non-FDTC process. At the conclusion of the evaluation 14 participants (20%) graduated /completed the program over a 29-month period. This was slightly better than other models internationally. Participants interviewed as part of the evaluation were largely positive about the program and every participant interviewed indicated they would recommend the program to others. [56]

The enactment of the Family Courts Law 1995 in Israel established a single Family Court with comprehensive and exclusive jurisdiction to deal with all family disputes. Only lawyers with knowledge and experience of family law can be appointed as Judges of the family court and the court operates on a one family one judge policy. Furthermore, rules of procedure and evidence can be deviated from where the interests of justice require it. The legislation also provided for the establishment of a support unit which is attached to every court. Their role includes promoting the settlement of conflicts, assisting both the court and families in crisis, to act in the interests of the family and children in particular, to address the emotional, personal and interpersonal needs of the litigant and their family and to help improve parenting skills. [57] Family court social service units are attached to every Israeli court - including family courts - which deal with family issues. The units are staffed by social workers with experience in family therapy as well as psychologists and psychiatrists. [58]

The law is a prescriptive tool - it does not describe how people do behave, but rather prescribes how they should behave - and any form of legal adjudication will often involve some element of intervention in people's lives. In family courts such intervention is typically designed to make a bad situation a little bit better. The use of the law as a therapeutic agent can be relevant to situations where families are experiencing some form of crisis, as it may help facilitate more positive relationships or outcomes and help strengthen families functioning. One of the ways this is done is for the court "to aim to improve the participants underlying behaviour or situation" [59] and the "application of TJ to family law can assist with this improvement effort." [60] For example, in divorce cases a therapeutic focus can help move the focus away from questions of fault surrounding marital breakdown to placing emphasis on understanding the impact of divorce on all parties, children included.

Family Law in Ireland

Family law in Ireland is currently intertwined with the rest of the court system, and is heard as a part of either the District Courts or the Circuit Courts. The District Court deals primarily with issues relating to maintenance , guardianship , custody and access to children. The Circuit Court deals primarily with judicial separation , divorce and nullity , but can also deal with all matters that arise in these cases such as maintenance and access. In Dublin there is a separate Children's Court which sits each working day to deal with youth justice matters in Dublin city. Sittings of the Children Court at venues outside of Dublin are often held in the courtrooms where the ordinary sittings of the District Court are held, but on different days or at different times. [61]

The Child Care Act 1991 maintains that the welfare of the child is paramount in all family law proceedings [62] and therefore it should be the case that such proceedings are more inquisitorial than adversarial. [63] However this is not always the case, and Irish family law remains "located within an adversarial framework" [64] which can pose difficulties for all parties involved, as it is often unsuited to the purposes and goals of family law, especially where the goal should be one of obtaining an outcome suitable to all parties. Such an outcome requires a more collaborative and inquisitorial approach to be taken, as a traditional adversarial approach will almost always result in a winner and a loser. This can be particularly devastating with cases involving children, as one parent may lose a great deal of access to their children, and in turn, the child to a parent. The disintegration of the family unit can be one of the most difficult and challenging experiences that families will ever face. The combative nature of the adversarial process can encourage "the taking of positions and defensiveness. It invites parties to dwell on the negative aspects of their partner's behaviour. Consequently the system is likely to encourage parties' negative perception of each other, rather than a realistic assessment of each other." [65] O'Mahony et al [66] noted that a major difficulty associated with such an adversarial model is that it makes it difficult for social workers to work with parents towards the best interests of the child. Such a system will inevitably result in a damaged relationship between parents and social workers, thus making collaborating in the best interest of the child very difficult.

Family law cases are heard in private (in camera) to protect the privacy of the family. [67] This means that, in theory, only officers of the court, the parties to the case and their legal representatives, witnesses and such other people as the judge allows, will be in the courtroom while the case is being heard. The reality is, however, somewhat different, with recent research stating that the effective practice of proceeding operating in camera is "in practice greatly undermined by the nature of the physical facilities in which child care proceedings are held." [68] One participant in that research claimed that to call proceedings in camera "is a nonsense... Everybody knows what everybody else is there for, everybody can see the upset in the faces of people coming out of the court; it's not in camera." [69]

O'Mahony et al [70] also highlighted concerns over the scheduling of proceedings, the time available and the physical environment of the courts. While Section 29(3) of the Child Care Act 1991 requires that courts should sit to hear such proceedings at "different place or at different times or on different days from those at or on the ordinary sittings of the Court are held," [71] the reality is that in some venues those involved in child care proceedings may find themselves in the same waiting areas as people attending criminal trials. This may prove to be very distressing for children who may be in the waiting area. [72] As child care proceedings are heard as a part of the work of the District Court, and many court buildings in Ireland are quite small, it is often the case that the physical environment of the court will not allow any separation between child care or family cases and the other day to day proceedings of the court.

O'Mahony et al [73] also highlighted a lack of judicial training in the issues relating to childcare law, child welfare and hearing the voice of the child. Training in family law related matters that is made available to judges who adjudicate on child care cases was not found to be uniform throughout the country, and remains it is ad hoc and inconsistent. The Committee for Judicial Studies [74] was established to provide training and seminars for members of the judiciary, but as there is an absence of dedicated family law judges, the training provided is of a general nature. [75] Irish judges are not required to have specialist qualifications or specific formal training for child and family law proceedings and this has resulted in a lack of consistency in child care proceedings before the court. It can also impact upon the approach of judges to cases in the context of how cases are conducted, especially with regards to how the views of children are heard by the court. [76] This is significant as Article 12 of the UN Convention on the Rights of the Child requires that the views expressed by children may add relevant perspectives and experience and should be considered in decision-making, policymaking and preparation of laws and/or measures as well as their evaluation. [77] Every child therefore has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously. This right applies at all times, for example during immigration proceedings, housing decisions or cases concerning the child's day-to-day home life. The UN Convention on the Rights of the Child allows for less weight to be attached to the views of less mature children, but it does not allow for their views to be excluded once the ability to form a view has been demonstrated.

An Irish family court system and the role of therapeutic jurisprudence

In 2019 the Irish Government's Special Rapporteur on Child Protection, Dr Geffrey Shannon, testified before the Irish Parliament's Joint Committee on Justice and Equality on the topic of Reform of the Family Law System. [78] Dr Shannon was unequivocal in his recommendations that a new family court structure should be established and that it should be staffed by specially trained judges. He recommended that new family courts should be located separately from current venues, with sufficient rooms for private consultations and a welfare and assessment service to support public and private family law proceedings. Any new family court structure must, according to Dr Shannon, recognise and actively promote an interdisciplinary system to ensure effective communication between all the disciplines involved in family law:

"The interdisciplinary approach involves an acceptance that simply making a court order is not sufficient, that further work needs to be undertaken by specialists with a range of non-legal skills to ensure that the needs of clients are met. It would require a problem solving court where, for example, judges would be in a position to order a mental health assessment. Without this addition, any new system remains as flawed as the current one." [79]

Many of the difficulties confronting the Irish family law system are a result of under-resourcing, in spite of an ever-increasing number of family law applications. [80] In 2019 a coalition of stakeholders, comprised of Barnardos, the Children's Rights Alliance, Community Law and Mediation, the Dublin Rape Crisis Centre, the Family Lawyers Association, FLAC, the National Women's Council Ireland, One Family, the Bar of Ireland, the Law Society and Women's Aid, launched a campaign entitled Courting Disaster, to highlight "the archaic conditions in which family law and childcare cases are currently being heard." [81] The Courting Disaster Campaign Group stated:

"Some of the most vulnerable members of society seeking to resolve family law proceedings, often arising from relationship and marital breakdown and domestic violence, are currently faced with wholly unsuitable and inconsistent court facilities where not even basic needs are met, such as separate waiting areas, family friendly spaces and consultation rooms to allow for privacy. These archaic conditions significantly increase stress and anxiety in what are typically very sensitive cases, and this can result in volatility and even violence in the course of family law litigation." [82]

Establishing such a system of family courts in Ireland would be in line with the Council of Europe's Guidelines on Child Friendly Justice. These guidelines state that child friendly justice that is: accessible; age appropriate; speedy; diligent; adapted to and focused on the needs of the child; respectful of the right to due process; respectful of the right to participate in and to understand the proceedings; respectful of the right to private and family life; respectful of the right to integrity and dignity. [83] In order to implement the Council of Europe's guidelines, the Family Courts Bill (2018) sought to establish a dedicated family court to improve levels of judicial expertise and training in family law matters, and to streamline family law proceedings, thereby making them more user-friendly and less costly through the use of mediation, arbitration and alternative dispute resolution. The Bill never reached the pre-legislative scrutiny stage in the Irish Parliament, [84] as it was originally anticipated that a referendum to amend Article 34 of the Irish Constitution [85] might be required in order to remove any constitutional obstacle to the establishment of a separate family court. According to the Irish Department of Justice, however, "more recent examination of the issues indicates that it will be possible to proceed with the establishment of the Court in a manner which does not require such a referendum, by establishing the Court as a separate division within existing court structures." [86]

In 2019, the Joint Committee on Justice and Equality, in its Report on Reform of the Family Law System recommended that a dedicated and integrated family court be established within existing court structures [87] and the Family Courts Bill is presently on the list of proposed civil law, with the Bill still awaiting to be published. [88] Also in 2019 the Minister for Justice stated that the Irish Government remained "committed to significant reform of the courts, including the establishment of a family law court structure that is streamlined, more efficient and less costly," [89] while in 2020 the Minister stated that over 15 million euro will be allocated for courthouse capital works for a variety of courthouses around the country. This includes preparatory work on a dedicated Dublin family court complex, which will, according to the Minister, help to deliver "a modern, fit for purpose family court for the citizens of Dublin. This new family courts project "will be an important step towards reforming the family courts system in Ireland." [90] Given that no Irish political party is currently in a position to form a majority, as well as the economic impacts associated with COVID-19 and the withdrawal of Britain from the European Union, it was most encouraging to see that reform of the family courts has been included in the 2020 Programme for Government. It states:

"We will enact a Family Court Bill to create a new dedicated Family Court within the existing court structure and provide for court procedures that support a less adversarial resolution of disputes. We will build a new Family Law Court building in Dublin and ensure that court facilities across the country are suitable for family law hearings so these hearings can be held separately from other cases." [91]

While it remains unclear if any new family court system would be problem solving in nature as per Dr Shannon's recommendations, any such courts should undertake a multi-agency approach and should also seek to house various agencies under one roof. These might include mediation services and mental health and psychological services. Experts in the area of attachment, child development and the impact of abuse ranging from neglect to sexual abuse should be accessible to judges who are allocated to deal with child care matters, in light of the fact that decisions made by these judges have such far-reaching consequences for children and families. Translators should be within easy reach to avoid lengthy delays or adjournments when there are language problems and providing sufficient space for parties to consult with their legal representatives. An independent and physical location dedicated to family law will be key to this. This would ensure that only those using family courts would be in the premises which could make the experience far less traumatic for children and for parents, as they can be seen in a facility that is designed around the needs of its service users, not a general court where people come and go with regularity. This could also assist in improving time management as judges would be dedicated to family matters. Cases would not be run over from other areas and judges and their staff would be able to focus solely on the area of family law and the cases that present before them. Structuring any new model of family courts in Ireland will require "strong judicial leadership and an engaged stakeholder approach. Reform in a piecemeal way is inefficient." [92]

TJ principles should also play a substantial role in any new family court design. TJ is relevant as families ending up in court are most likely experiencing some form of crisis, for example, where divorce or custody proceedings are being undertaken. TJ may allow the court to facilitate more positive relationships or outcomes for the party's in question. Family law often involves personal and emotional battles over marriage, finance, child custody and access, to name but a few. As Healy has noted, "there are few more poignant times in one's life and when one feels more vulnerable than having to approach the courts to resolve an issue that has arisen within a family." [93] Those involved are often watching the very fabric of their emotional wellbeing - their partner, spouse or children - being taken away from them. This is always going to promote an emotional response whereby anger and resentment towards the other party may surface. A typical adversarial system is often quite unsuited to dealing with such a situation [94] and can have a very negative impact on the overall outcome, as it invites parties to dwell on the negative aspects of their partner's behaviour. Negative feelings can be reinforced generating levels of hostility and anger, [95] parties may become entrenched and children will ultimately suffer through the process. In cases of divorce, it is widely accepted that the more fractious the proceedings the more difficult the aftermath for everyone involved and the courts ability to remedy the emotional impact caused by divorce, either between the parties involved or to any children involved, is severely limited. Therapeutic judicial behaviour, whereby the judge displays an ability and willingness to listen, to express empathy, to be aware of body language, and to communicate effectively and sensitively with others, are important interpersonal skills that can greatly assist in therapeutic legal and judicial practice. [96] A judge who is engaged with TJ principles should aim to improve the material and psychological well-being of all who are before them by trying to help address underlying problems that the parties may have.

TJ contends that legal and judicial education should include developing interpersonal skills which can enable judges and court officials to promote voice, validation and respect. A TJ approach allows participants in the process to avail these by envisioning a more active role in the process when compared to the traditional adversarial model of trial by battle. Judicial training, therefore, is of vital importance. [97] In any family court system the judges should be specialists in family law, not a generalist in the legal system. Furthermore, training in TJ would also be of benefit as it could help ensure that all judges have an understanding of TJ principles and know how to engage with these principles in the courtroom. Judges, acting as therapeutic agents, provide leadership, guidance and even inspiration for all participants in the court process. The TJ judge is an active participant in the proceedings, displaying compassion and empathy at all times. Irish judicial adherence to TJ principles could greatly reduce the negative impact that the adversarial model can have in family courts. The focus with TJ would be on a more holistic and collaborative approach, understanding that family members, despite any issues they may be having, are "interconnected emotionally, economically and spiritually. The legal label attached to the case is less important to the delivery of therapeutic justice than the ability of the court to make appropriate orders to address the underlying dynamics causing the family to come to the courts attention in the first place." [98]

A problem solving approach which emphasises collaboration over conflict and teamwork over winning legal disputes, may also help move away from an adversarial process, and applying a problem solving approach to family law can help parties resolve both legal and emotional conflicts. [99] Alternative dispute resolution such as mediation and arbitration should also be considered, as well as restorative justice approaches. In an Irish context the Mediation Act 2017 provides for a lot of potential in the area of family law, and along with other alternative dispute resolution approaches, appears to result in more amicable and enduring arrangements, with the attention of parents more likely to be focussed on the needs of any children involved, rather than on their own feelings. Should such services be engaged at the outset of disputes, it may negate the need to go to court entirely and it has been recommended that alternative dispute resolution be made mandatory in Ireland prior to any court proceedings taking place. [100]

Although the concept of TJ has not been explicitly articulated in Ireland [101] it can certainly be classified as an emerging discipline in which more and more people are expressing an interest, and in early 2020 the first ever meeting of the Irish Chapter of the International Therapeutic Jurisprudence Society took place at Maynooth University. It is also worth noting that there has been substantial progress in the development of restorative justice (RJ) in Ireland in recent years. [102] RJ and TJ share several features, but perhaps most importantly, both disciplines have emerged "from an analysis of modern criminal justice that sees it as an inhumane, ineffective process in which professionals impose their preferred outcomes on citizens, rather than arriving at more legitimate, responsive, healing and constructive conclusions through respectful, inclusive deliberation." [103]

Given the strong progress that RJ has made in Ireland, where it has developed from a series of recommendations to the default position in the Irish criminal justice system in just over 10 years, [104] establishing an independent family court which is not intertwined with the rest of the court system could be the catalyst for a dedicated TJ movement to emerge within the Irish legal system.

Conclusion

One subject that has seen significant change in Ireland over the last 30 years is how Irish people relate to the concept of the family. Having examined these changes this paper then discussed the concept of TJ before considering family courts in various jurisdictions. This paper has outlined the current position of family law in Ireland and has advocated on behalf of the establishment of a new family court structure to operate within the Irish legal system. Any such structure should have the appropriate resources devoted to it and this includes infrastructure, specialist staff and required training and specialism in the area of family law.

This paper has examined the role of TJ in family courts and argues that TJ principles should play a substantial role in the development of any new family court model in Ireland. These principles, such as empathy, listening, problem solving and collaboration, should be formalised and engrained into the principles of any new family court structure that may be established. Establishing a family court grounded in TJ principles could also feed into wider debates over other problem solving and TJ based court systems. There have been arguments put forward for community courts [105] and mental health courts [106] in Ireland, while the Dublin Drug Treatment Court has continued to operate for over twenty years [107] and the development of RJ has also made significant progress in recent years. This could present an opportunity to start a debate about a wider process of reforming the courts in Ireland, to reflect a more therapeutic, problem solving and collaborative nature.

The physical environment and design of a new family court should reflect therapeutic values. Facilities should be fit for purpose to meet current and future needs. Such facilities include the creation of a child-friendly environment to cater for children as well as a large waiting area and a sufficient number of rooms to ensure privacy for those who want or need it. This is especially important for victims appearing before the courts in domestic violence and abuse cases. In order to prioritise the child in the process such a court should enable the voice of the child to be heard through the provision of onsite services to assist children, such as Guardian ad Litem, [108] social workers and specialist legal advice services. Such courts should also provide onsite legal aid and mediation services as well as the delivery of ancillary family support services such as counselling and parenting supports. Again, this will require space, rooms and facilities. TJ principles should also be embodied by those who work in such a court. This includes the judiciary as well as court staff and members of the legal profession. A less formal process, an ability and willingness to listen, to express empathy, to be aware of body language, and to communicate effectively and sensitively with others, as well as a focus on problem solving and collaboration could go a long way to ensuring a more positive experience and outcome for those going through the family court system.