Book Review - Caring for Families in Court, An Essential Approach to Family Justice, by Babb and Moran (2019)
Authors: District Judge Yarni Loi and District Judge Suzanne Chin, Family Justice Courts, Singapore
1. Around the world and across different jurisdictions, there is increasing awareness and growing recognition that family disputes are special and require a different approach to the traditional adversarial system. The family court is where people go to re-arrange their most private and intimate family affairs. Further, underlying family disputes are often non-legal concerns, such as powerful emotions which can overwhelm thinking and psychological coping capacities; vulnerable young children who are not a party to the legal proceedings; family ties and obligations that continue even after the court case has ended; and limited family finances that add to parties' stress and distress.
2. Increasingly, and unsurprisingly, therapeutic jurisprudence ("TJ") principles have been, or are being, adopted by family justice systems around the world, whether implicitly or explicitly. They include the family justice system in Singapore where mediation and counselling were first introduced in the 1990s and a unified family court, the Family Justice Courts, was established in 2014 with comprehensive jurisdiction to hear all family proceedings.
3. The book by Babb and Moran (2019) is an important addition and significant contribution to the growing jurisprudence and literature addressing the appropriateness of moving away from a traditional adversarial court model, and adopting instead a unified problem-solving family court underpinned by TJ principles. The book provides important perspectives and food for thought at several levels.
4. The authors provide a quick historical perspective behind problem-solving courts and the reasons why they were set up, as well as the genesis of TJ and its growing application in family justice systems.
5. The authors also provide an important jurisprudential and theoretical perspective, explaining key concepts underlying TJ in family justice. As the authors explain, based on the important work of Wexler and Winick (1991), TJ is the study of the role of law as a therapeutic agent, looking at the law as a social force that, like it or not, may produce helpful or anti-therapeutic consequences, both intended and unintended. Further, this TJ lens is important for family justice as it "orients the court and all legal actors to craft resolutions to family legal and non-legal issues that improve the well-being of the participants."
6. Another key jurisprudential concept introduced by the authors is that of an ethic of care. Quoting from Robin West (1992) who wrote that that "Justice must be caring if it is to be just and …. caring must be just if it is to be caring", the authors underscore the importance of applying an ethic of care, characterised by decency, reason and compassion, to family justice. They explain that such an ethic of care does not contradict an ethic of justice, but is mutually compatible and serves to enrich an ethic of justice; people who treat each other justly can also care about each other. Rightly so, the authors are unapologetic in advocating for "caring justice" in family courts. In discussing the appropriateness and necessity of applying an ethic of care, the authors also offer practical suggestions and details on how such a care ethic can be infused into the family justice system to facilitate early intervention to address both legal and non-legal matters.
7. From amulti-disciplinary social science perspective, the authors explain the importance of taking a human ecological approach for a comprehensive understanding of both the legal and non-legal issues facing the parties, to encourage pursuing strategies to establish and to strengthen connections among all the competing influences on families' and children's lives, to enhance their functioning. Such an ecological approach reveals connections that might otherwise go unnoticed and helps us look beyond the immediate and the obvious to see where the most significant influences, and possible solutions, lie.
8. In order to understand the human stories behind the court case, the authors also pursue the idea of adopting a narrative approach to engender empathetic understanding and ethical judicial decision-making. As the authors explain, the court process is enhanced when the legal actors in family proceedings seek to understand the stories of parties, in order to help them identify positive learning points and help them re-frame a renewed and fresh narrative for the way forward.
9. Importantly, from a practical perspective, the authors explain the importance of establishing unified family courts that have comprehensive subject matter jurisdiction in order to be able to treat families holistically, and address both their legal disputes as well as the real underlying problems. The authors also helpfully identify several key features that characterise a unified family court. They include a separate court structure; comprehensive subject matter jurisdiction; a specialised case management and judicial assignment system with a one-family one-team approach led by one judge which would permit the judge to understand the family member and allow family members to feel better understood by the same team; the provision of an array of specialist support services, and a user friendly court.
10. Applying a TJ lens, the authors also provide specific examples of caring courts and initiatives from different jurisdictions around the world. The examples range from TJ-friendly court facilities and aesthetics, specialty court programs (eg. courts targeting young children and aboriginal children's court programs in Australia), court-supplied services, court community connections, court policies and caring judges.
11. This book is a highly readable and valuable resource for family law academics, family justice professionals, practitioners, law students, and other stakeholders in the family justice eco-system who are interested to learn more about "caring justice" in family justice systems underpinned by TJ principles.