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Therapeutic Jurisprudence in a Family Court in South Africa

Gabriela Mckellar *

International Institute of Restorative Practices

Abstract

This paper looks at one magistrate's practice and perceptions in the Family Court she presides over in Wynberg, Cape Town, South Africa and how Therapeutic Jurisprudence (TJ) is being implemented there.  The paper explains the specific laws that allow for a TJ approach in the Family Court and posits that although the legal framework makes provision for a magistrate to implement a TJ approach, the legal framework on its own is not sufficient to guarantee a consistent TJ practice nor outcome.  It is suggested that certain concepts that are taught by the International Institute for Restorative Practices (IIRP) to understand and define restorative practices (RP), an emerging social science, be used to influence and measure the magistrate's practice and the outcomes of the court proceedings for TJ compliance.  These concepts are the Social Discipline Window(SDW), Fair Process (FP) and the Restorative Justice Typology (RJT).  It is suggested that if all the professional stakeholders involved in a Family Court matter, were trained in these restorative practice concepts, a more consistently TJ outcome would be likely. Finally the writer compares the current use of TJ in the United Kingdom with South Africa.

Keywords: Therapeutic Jurisprudence, restorative practices, Family Court, legal framework, Social Discipline Window, Fair Process, Restorative Justice Typology

Introduction

The writer is a magistrate in a Family Court, interested in how to consistently practice Therapeutic Jurisprudence (TJ) in her court. TJ is a term attributed to David Wexler who later partnered with Bruce Winick over several years to cause this once fringe idea to become more mainstream. [1] One way that Therapeutic Jurisprudence (TJ) has been described is the attempt to humanize the law by including other role players like social workers and psychologists.  There are also three main parts that determine the therapeutic aspect of a legal experience, namely the laws themselves, the court procedures and the attitude of the professionals tasked with carrying out the laws and the court procedures . [2] When asked to explain TJ, the writer describes it as a marriage of collaboration and coercion in that, one of the parties to the case, commonly referred to as the applicant, has coerced another party, commonly referred to as the respondent, to be at court by instituting an action.  Thereafter the proceedings can be conducted in a manner that is collaborative with a restoring or therapeutic outcome in mind.  It is this collaborative manner, or the absence thereof, that this paper will address.  Another way to understand what is meant by TJ is to juxtapose it against its opposite which is adversarial, punitive or imposed justice.

Judicial officers can help to make a difference for people appearing before them not only by according procedural fairness but also, despite the constraints of a busy list, by expressing concern and compassion for the situation of their fellow human beings and by using processes conducive to a therapeutic effect.  This has the potential…to promote public confidence in the court as an institution that listens, acts and

responds to the needs of those it serves. It allows a judicial officer to take a more comprehensive and creative approach to determining cases . [3]

     The writer strives to do just as King [4] suggests and posits in this paper that one way to ensure that a more "comprehensive and creative approach" [5] is used consistently, is to apply some of the concepts described in the emerging social science of restorative practices (RP) as taught by the International Institute for Restorative Practices (IIRP) in the court process.  These concepts are the Social Discipline Window (SDW), Fair Process (FP) and the Restorative Justice Typology (RJT). 

The three RP concepts of SDW, FP and RJT present a grid through which judges can judge their judging.  Wexler [6] uses the analogy of wine and bottles to describe TJ.  He speaks of bottles as matters of the Therapeutic Design of the Law (TDL) and the wine as the practices and techniques or the Therapeutic Application of the Law (TAL) and that for TJ to thrive, TDL and TAL should be seen as an interrelated seamless methodology of assessment and reform. [7] He takes the analogy further, "… TJ is interdisciplinary in nature, in that psychology, criminology, and social work serve as the principal 'vineyards' for producing TJ wine." [8] This paper attempts to add to this idea of measuring and assessing the TJ value of how the Family Court is operating, by focusing on and assessing the "wine" only and suggests that the "wine" or TAL, be quality assured by measuring it against RP standards.  To place the Family Court in the context of a TJ bottle or to describe the TDL, a brief description of the applicable laws follows.

Therapeutic Design of the Law (TDL) in South African Family Court

     South African magistrates are referred to as creatures of statute because they are compelled to function strictly and only within the laws that create their office.  Because of this many magistrates are reluctant to attempt anything new that is not clearly delineated in the laws that govern them.  To convince magistrates to adopt a more TJ approach one would have to start with a strong reference to the legal framework.  The Family Court in the South African context is a new forum made possible by laws enacted in post-apartheid South Africa since 1994.  The laws that make TJ possible in these courts are

1.      The Constitution. [9]

2.      The Children's Act 38 of 2005. [10]

3.      The Maintenance Act 99 of 1998. [11]

The Constitution

     The Constitution is the highest law in South Africa.  All behaviour and other laws can be and are regularly held up for scrutiny by the Constitutional Court to assess whether they pass muster.  The question asked is this: Is this law or behaviour constitutional or not?

     The relevant section in the Constitution for the Family Court is Section 28 (2) read with (3) which states that a child's best interests are of paramount importance in every matter concerning a child. A child is defined as anyone under 18 years of age.  This astoundingly general statement in the highest law in South Africa gives everyone engaged in matters concerning a child under 18 years of age, an open door to be creative and innovative in a way that magistrates would not otherwise be enabled to.  One can say this is a truly Therapeutic Design of the Law (TDL) or TJ "bottle" (Wexler, 2018).

The Children's Act

     The Children's Act is complex and long but contains some important sections that govern the tone and intent of the entire Act, namely:

• Section 6(4)(a) says: In any matter concerning a child an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided.

·         Section 62(3) says: Children's court proceedings must be conducted in an informal manner and, as far as possible, in a relaxed and non-adversarial atmosphere which is conducive to attaining the co-operation of everyone involved in the proceedings.

·         Section 42(8) says: The children's court hearings must, as far as is practicable, be held in a room which (a) is furnished and designed in a manner aimed at putting children at ease; (b) is conducive to the informality of the proceedings and the active participation of all persons involved in the proceedings without compromising the prestige of the court; (c) is not ordinarily used for the adjudication of criminal trials; and (d) is accessible to disabled persons and persons with special needs. 

Again, these sections of the Act evidence the Therapeutic Design of the Law (TDL) from which a Therapeutic Application of the Law (TAL) can be accommodated.

The Maintenance Act

Although there is only one phrase in this Act that contains the rhetoric of TJ and nothing that offers the option of Alternate Dispute Resolution, there are three doorways that can be used by a TJ friendly magistrate to shape the proceedings to a TJ style and a TJ end.  These are

·         The Pre-amble to the Maintenance Act. The wording used in the pre-amble to the Maintenance Act, encourages the importance of a sensitive and fair approach to the determination and recovery of maintenance.

·         The Constitution. Section 28 (2). This contains the Constitutional imperative to consider a child's best interests of paramount importance in every matter concerning a child.

• Case Law

Case law is when a judge makes a statement which then becomes binding law. One example is the Soller case [12] in which the Judge stated: "… the maintenance court functions as a unique or sui generis court.  It exercises its powers in terms of the provisions of the Maintenance Act and it does so subject to the relevant provisions of the Constitution, more specifically section 28(2) thereof."

     However, in spite of these laws/ bottles providing ample opportunity for a magistrate to conduct the Family Court in a TJ way there is still no guarantee that these bottles will dispense TJ wine without some intentional, and I suggest RP concepts being understood and practised by the magistrates in these courts, namely the SDW, FP and the RJT.

The three helpful restorative practice concepts

The Social Discipline Window (SDW)

     The SDW as a useful leadership model for, amongst, others judges and government officials. [14] The SDW identifies four windows to describe four styles of authority.

a.        The restorative window describes a high control and high support or authoritative model of leadership, also called the doing "with" style.

b.      The punitive window describes a high control but no support or authoritarian model, called the doing "to" style.

c.       The permissive window is where there is low control and low support or a paternalistic style.

d.      The neglectful window is where there is no control and no support or a irresponsible style.

     Juxtaposing and explaining the difference between authoritarian and authoritative could be used to identify the more TJ as opposed to the non-TJ style of the magistrate.  The TJ magistrate will do "with" whereas the non-TJ magistrate will do "to".  In the context of the case appearing before them, magistrates have ultimate authority over the parties, the space and the people in it.  This authority is traditionally exercised in a high control and low support or strictly authoritarian doing "to" way.  In courts which deal with crime and commercial disputes the magistrates have little option but to function in this way.  However, in the Family Court, new laws have opened the doors for magistrates to utilise a more supportive doing "with" option without compromising on control.  Many magistrates would have to unlearn old authoritarian habits especially if they had never presided over the Family Court under the new law which has only been in force since 2010.  The writer has also noticed that lawyers who appear in the Family Court also need to be coached from the bench that the Family Court is not adversarial. Neither is the Magistrate just a passive observer of the process and tasked only with making a judgement and imposing it on the parties in the classic doing "to" model.

     One aspect that can be used to ascertain the measure of support that the magistrate's displays is to examine his or her posture and tone.  Lens & Suarez [15] studied ninety-four child welfare and abuse proceedings between 2012- 2013 in Columbia, in a traditional Family Court, and drew on the theoretical framework of TJ, as a model for positive courtroom behaviours.  They say about the study:

It found that on one end of the spectrum were judges, contrary to the precepts of TJ, who engage little, or not at all with parents, preferring to speak only to the professional court actors.  When they did speak to parents they often used shaming rituals, criticizing or lecturing them.  On the other end of the spectrum, and less common, was a more therapeutic approach, with judges weaving participants into courtroom exchanges, engaging them in informational and decision-making dialogues, and praising and supporting them.  That some judges, no matter how few, were able to transform non-therapeutic courtrooms into therapeutic ones suggests that TJ and other problem-solving techniques can be effectively deployed in even the most overburdened and under resourced of traditional family courts. [16]

     A court can be either authoritarian or restorative, and this depends on the amount of support felt and offered to the parties and how much support is provided to the parties to achieve the ultimate outcomes.  Lens & Suarez [17] comment, that the distinctive boiled down to the manner adopted by the professionals which can make for either a therapeutic or non-therapeutic encounter.  A magistrate familiar with the SDW can be intentional about adopting the restorative "with" stance and thereby have greater chance of implementing the TJ law in a TJ way.

Fair Process (FP)

     Although this model introduced by Kim & Mauborgne [18] is traditionally associated with business management, this paper will suggest that the three FP principles of engagement, explanation and expectation clarification are essential to ensure that the Therapeutically Designed Law (TDL) is also a Therapeutically Applied Law (TAL). This idea builds on the SDW concept but elaborates on the content of the support and not only the attitude or posture of the magistrate.  It's not enough for the magistrate to make supportive gestures or comments.  Looking at FP gives some advice as to what the support should contain.

A London policeman gave a woman a ticket for making an illegal turn.  When the woman protested that there was no sign prohibiting the turn, the policeman pointed to one that was bent out of shape and difficult to see from the road.  Furious, the woman decided to appeal by going to court.  Finally, the day of her hearing arrived, and she could hardly wait to speak her piece.  But she had just begun to tell her side of the story when the magistrate stopped her and summarily ruled in her favor.  How did the woman feel?  Vindicated?  Victorious?  Satisfied?  No, she was frustrated and deeply unhappy.  "I came for justice," she complained, "but the magistrate never let me explain what happened."  In other words, although she liked the outcome, she didn't like the process that had created it. [19]

     The first time I read this story I was working as a prosecutor in the Family and Child Justice criminal courts.  It had a profound effect on me as did this phrase, "Action researchers often experience themselves as 'living contradictions' in that they can hold a set of values, yet not live according to them." [20] I know I must be patient, listening and courteous but fail woefully to be so at times.  With the large case load it is often much easier and quicker to deliver speedy justice, but as the story illustrates this often causes deep dissatisfaction.  However, parties that are involved in Family Court cases have often had to wait for up to three months and longer for a court date and then again sit for s hours in the passages of the court room waiting for their cases to be called.  The magistrate has to balance the need to be efficient with the need of the parties to be heard properly and to be heard soon, knowing there is a long queue of people with the same need waiting outside. 

     Mine is one of three courts and my court alone dealt with 4862 cases in 2017, of which 70% involved face to face interactions.  The interaction with people is often very short and intense.   A magistrate could go swiftly through the process and avoid direct engagement with or explanation and expectation clarification to the parties without having done anything procedurally wrong.  In fact, were such a court case to be taken on review or appeal, it is doubtful that the magistrate's actions would be faulted.  However, the outcome of applying the TDL in a non-TAL would result in a non-therapeutic outcome.  This raises the question: How can I make these brief encounters more therapeutic?  By using FP a magistrate could ensure that the parties appearing in court feel heard.  For example, by adopting a warm engaging tone, taking time to explain the law and clarify what the parties can expect from and during the process.  FP dictates that this would result in a more lasting and satisfying outcome for the parties.  Magistrates who are new to the idea of TJ would benefit from knowing and applying the very simple yet profound ideas and methods of FP and SDW to guide them as to how to use the TDL to reach a TAL outcome.

     Recently a very angry and emotional lady appeared in the Wynberg Magistrate's Court.  She was not represented by a lawyer whereas her ex-husband was.  With such a power imbalance it is even more important for the magistrate to ensure that the unrepresented party feels heard.  Her application was for a variation of the Divorce Order to now include spousal maintenance and an increase for the child's maintenance.  The maintenance order, as it appeared in the Divorce Order, was proving insufficient to cover her costs especially since she had relocated.  However, the law is not on her side as the window of opportunity to get a spousal maintenance order closed on the granting of the Divorce.  After the magistrate spent extensive timeengaging, explaining and clarifying more realistic expectations to her, she became calmer and more able to engage with the court process even though she was receiving bad news.

     An awareness of FP and the power it has to enable the magistrate to exercise this authority in an inclusive manner will go a long way to ensure a more positive experience and lasting result of an otherwise acrimonious and destructive court case.

The fundamental hypothesis of restorative practices embodies fair process by asserting that "people are happier, more cooperative and productive, and more likely to make positive changes in behavior when those in authority do things with them, rather than to them or for them. [21]

The Restorative Justice Typology (RJT)

     Magistrates in the Family Court have a unique opportunity, as compared to magistrates in other courts, to interact in a meaningful way with those that appear before them.  The RJT can also be used to ascertain whether the proceedings are being conducted in manner that builds and restores the relationship of the warring parties in the case.  In explaining the RJT in the context of criminal law, Wachtel [22] says

The three primary stakeholders in restorative justice are victims, offenders and their communities of care, whose needs are, respectively, obtaining reparation, taking responsibility and achieving reconciliation.  The three primary stakeholders are represented in Figure 2 by the three overlapping circles.   The very process of interacting is critical to meeting stakeholders' emotional needs.  The emotional exchange necessary for meeting the needs of all those directly affected cannot occur with only one set of stakeholders participating.  The most restorative processes involve the active participation of all three sets of primary stakeholders (my emphasis).

     The proceedings in the Family Court, albeit not of a criminal nature, can still be evaluated using the RJT.  The applicable processes are found in the inner circles, specifically family group conferencing and community conferencing.  The magistrate, in terms of the Children's Act, can order a child to be removed summarily or alternately order a social worker to conduct family or community conferences to get all involved to collaborate to find an in-house solution.  The latter being far more of a TJ intervention than the former. The Children's Act has created a TDL or bottle and the way the magistrate uses this structure determines whether the wine is a TAL or not.  The level of meaningful emotional involvement and greater participation in decision making by significant family members, determines the degree of how therapeutic or restorative the court process and its outcome can be.  Thus, the court could be more inclusive and less top heavy, more restorative and less authoritarian, more therapeutic and less punitive.  The RJT is yet another concept that could assist magistrates to measure whether they are enacting the therapeutically designed law in a therapeutic way.

Implications for the Children's and Maintenance Courts

     The implications of these ideas for others is that all the professionals tasked with enacting the laws governing the Family Court, have a means to evaluate their part in the process to ensure this court is experienced as therapeutic by the families that engage with it.  Having the criteria of the three overlapping RP concepts to measure the TJ nature of the experience in court would help.  The professionals who yield power over the family are the magistrates, social workers, clerks of the court, maintenance officers and lawyers.  Perhaps a card containing questions that each professional carried with then and  had to stop and read before speaking and acting would be helpful.  For example, the questions could be:

Have I engaged in a supportive way?

Who have I engaged with?

Have I explained the law and the process in a supportive way?

Have I included all the parties to the process?

Have I considered including non-family members as parties to the process?

Have I engaged directly with the parties or have I used the fact that they have legal representatives to remain uninvolved and let the law takes its course?

Have the parties received sufficient expectation clarification to empower them to understand and be part of the legal process in a meaningful way?

     Such an endeavour coupled with a research project to gather feedback from all the parties on the impact of the court process and whether it proved meaningful and helpful to the families in crisis could go a long way to convince other courts in South Africa to adopt TJ.

TJ has traditionally been associated with problem-solving courts because those courts have been consciously established and structured to invite the application of TJ-techniques, techniques such as: active judicial involvement, active participation by participants ("clients"), active listening and displays of empathy by judicial officers, follow-up proceedings to see that matters are under control, and much more.  In other words, legal actors (such as judges, lawyers, other professionals) are encouraged to behave in certain ways. [24]

Further TJ in the Maintenance Court

     Although the maintenance court has less opportunity than the children's court to function in a TJ way, this has not stopped this magistrate from using the three legal doors described earlier in this paper to implement TJ in her court.  Apart from acting in a restorative (as per the SDW and FP) way this magistrate has also incorporated aspects of Alternate Dispute Resolution (ADR) methods into the process.  The magistrate explains ADR practices to the parents and asks if they are open to trying it out.  If they agree, the magistrate then orders the parents to attend a mediation on a Saturday morning to assist the parents to resolve their dispute around child maintenance before considering the option of the more formal and adversarial trial process. The writer has, together with a team of lawyers and mental health care professionals, managed to gather a group of about twenty-five professionals trained in Family Dispute Resolution mediation, to volunteer periodically for two sessions on a Saturday morning.  Each couple is given at least two hours per session with two mediators, usually a legal and health care professional duo.  This practice is a pioneering project that is attracting attention because it has increased the case flow time and resulted in only about ten percent of the cases referred to the mediators needing to be resolved by formal adjudication.

Comparisons with the use of TJ in the United Kingdom

It appears that although there was an initial move towards incorporating TJ into the UK legal system, there is no legislation as there is in South African, that makes explicit reference to a TJ approach as being mandatory as there is in The Children's Act [25] at for example section 6(4)(a) and section 62(3). Referred to earlier in this paper. Jones [26] suggests the following:

Within the UK, there are currently plans underway to create a Centre for Therapeutic Jurisprudence to draw together academics, legal professionals and others in exploring how to harness and develop this further.  Perhaps, in this time of political, legal and regulatory change, there is the opportunity to challenge the old norms of legal culture and reposition law itself as a therapeutic agent.

Jones and Kawalek [27] also note:

The overarching message … is that TJ is happening

in the UK, if only in small spaces and perhaps without official bodies

or the majority of practitioners realising it; it just needs to gain momentum and

visibility.

The same can be said for TJ in South Africa even though legislation provides for a TJ response. It is an emerging practice which is only slowly gaining traction in the problem-solving courts such as the one that the writer presides over as well as the Child Justice and Drug Rehabilitation Courts.

Summary

     The Family Court Forum is perhaps a uniquely emotionally charged environment, given the intimate relationships it presumes to have power to regulate.  These relationships are those of parents, children and extended family members, all brought to court by extreme family conflict, social adversity or substance abuse induced trauma.  It has not proven enough that the bottles of the TJ friendly laws of process are in place.

A TJ-friendly provision, therefore, speaks only of the law's potential to be applied therapeutically: to live up to its therapeutic potential, legal actors (judges,lawyers, others) need to use the types of TJ practices that the so-called friendly law would allow. [28]

       In the Family Court in question the writer has observed that many lawyers arrive with their boxing gloves on.  The magistrate must often be very firm and remind them that this court is not adversarial and that a combative posture is therefore inappropriate.  The magistrate too, can get triggered by the adversarial stance of any one party and become authoritarian and even hostile.  The writer has experienced just this phenomenon when the roll has been heavy and one or more of the parties have been belligerent and difficult.  Even the Social Workers can sometimes assume an air of authority that can be intimidating for the parents under whose scrutiny their lives fall.

     To ensure that the bottles are indeed dispensing the TJ wine, all the professionals would benefit from some clear criteria to evaluate and govern their own responses and plans in each individual case.  Schilli-Jerichower & Gal [29] recommend in an article examining the child protection law in Israel that the professionals adopt encouraging, empowering, respectful behaviours and practices.  These conclusions are pertinent to the South African context because the laws in place in both of our countries contain all the options and rhetoric of TJ. The idea is that the  process is as important or perhaps more important than the outcome.

One of the basic premises of the therapeutic movement has been to refocus the

role of the court from a finality to a process. …. The telling of the story is at the centre of the court process, rather than the hearing of the result. The focus is on allowing one person to feel like a participant in a process that concerns him or her, and to be empowered by such an experience, if possible. [30]

     The traditional way of judging is authoritarian, doing to, listening only to the legal representatives and not allowing the represented parties to speak for themselves.  It is also rigid, following the laws of evidence and procedure to the letter and leaving no room for a free flow of information or conversation.  There is little time in the average day of a magistrate in the Family Court for personal reflection.  The RP concepts of SDW, FP and the RJT, summarised on a small card in the questions proposed by this paper, would go a long way to help a magistrate maintain a TJ posture and practice.  The writer often reminds the professional stakeholders and especially the lawyers that the family will endure long after the court case is over.  By modelling RP from the bench, the magistrate can be part of the restoration of the relationships ensuring the power imbalances are addressed and justice is served especially for the children.

     TJ is an idea still new to most South African magistrates who consider it a rather esoteric concept.  The three RP concepts will be a helpful way to explain to magistrates how to apply the law in a TJ way.  The three RP concepts are explicit, concrete, easily understood and fit in well with the therapeutically designed laws described in this paper.  The writer is convinced that using the RP concepts in Family Court will result in more consistent and certain therapeutic outcomes and would like to see the ideas spread to other Family Courts in South Africa.  The writer intends to take the ideas suggested in this paper further by encouraging research be conducted in the Wynberg Court to be used to convince other jurisdictions and court managers of the value of training Family Court magistrates in RP with a view to consistently implementing the TJ laws in the spirit in which they were intended.

References

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Des Rosiers, N. (2000). Secession: From Quebec veto to Quebec secession: The evolution of the Supreme Court of Canada on Quebec-Canada disputes. Canadian Journal of Law and Jurisprudence, 13, 171-83. 

 Emma Jones, The Open University Law School https://www.lawcare.org.uk/news/therapeutic-jurisprudence-a-different-approach-to-law-and-practice

 Emma Jones & Anna Kawalek, Dissolving the stiff upper lip: Opportunities and challenges for the mainstreaming of therapeutic jurisprudence in the United Kingdom, International Journal of Law and Psychiatry 63(2019) 76-84

Kim, W., & Mauborgne, R. (2003, January). Fair process: Managing in the knowledge economy.  Retrieved from https://hbr.org/2003/01/fair-process-managing-in-the-knowledge-economy

King, M.S. (2003). Applying Therapeutic Jurisprudence from the Bench: Challenges and Opportunities. Alternative Law Journal 172, p. 28.

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Schilli-Jerichower, D., & Gal, T. (2017) Mainstreaming therapeutic jurisprudence in family law: The Israeli child protection law as a case study Family court review, 55 p. 177.

Soller v Maintenance Magistrate of Wynberg and Others (109090/04) [2005] ZAWCHC 83; 2006 (2) SA 66 (C) (4 November 2005)

The Constitution. Retrieved from http://www.justice.gov.za/legislation/constitution/index.html

The Children's Act 28 of 2005. Retrieved from http://www.justice.gov.za/legislation/acts/2005-038%20childrensact.pdf

The Maintenance Act 99 of 1998. Retrieved from http://www.justice.gov.za/legislation/acts/2015-009-gg39183_gon821.pdf

van Wormer, K. (2013) Restorative Justice Today: Practical Applications SAGE Publications. Kindle Edition, p.25.

Wachtel, T. (2013) Defining restorative. International Institute for Restorative Practices. IIRP Graduate School. Retrieved from https://www.iirp.edu/what-we-do/defining-restorative/

Wexler, D. B. (2015) Wine & Bottles: A Metaphor & a Methodology for Mainstreaming TJ Arizona Legal Studies Discussion Paper No. 15-05

Wexler, D. B. (2018). The therapeutic application of the law and the need for amicus justitia briefs. Therapeutic jurisprudence in the mainstream ___ (2018 Forthcoming); Arizona Legal Studies Discussion Paper No. 18-18. retrieved from  https://ssrn.com/abstract=3168768