Can therapeutic jurisprudence improve family/child neglect/child protection courts?

Dr Vicki Lens explores how therapeutic jurisprudence principles might improve interactions between judges and child welfare caseworkers and produce better outcomes for children and families …

Much of the literature on therapeutic jurisprudence (T.J.) focuses on the targets of legal action.  Courtroom exchanges, though, are less a duet between a judge and a respondent or defendant than a chorus of voices.  This is especially the case in problem solving courts like Family Courts, where a team of professionals work toward the common goal of rehabilitating families and protecting children.  Off-key encounters with any of these court actors can have a detrimental effect on the tone and tenor of a proceeding, and even the outcome.

A key player in child maltreatment cases is the child welfare caseworker.  As the professional tasked with rehabilitating families, caseworkers have an ongoing and active presence in parents’ daily lives.  They are responsible for gathering information, assessing and monitoring families, and linking parents with needed services. BTheir written reports inform what the court does, and they are often physically present in the courtroom, providing testimony or information.

Family/child neglect or child protection courts though, are arenas under constant strain.   The dual mandate to protect children and fix families places pressure on judges and caseworkers alike, with both working in institutional environments that are short on time, resources and supports.  A caseworker’s performance and a judge’s decisions are also continually subject to public scrutiny in the very open space of a courtroom.  While much of the hard work of rehabilitating families occurs outside the courtroom, the success and failure of those efforts, including the wisdom of a judge’s decision or the efficacy of a caseworker’s actions, are gauged in the courtroom.  Consequently, conflicts and tensions that in other work environments are managed behind the scenes become grist for public discussion and disapproval.

In a study conducted in a traditional urban Family Court we found that this tension often boiled to the surface in the court room. While some judges created respectful, empathetic, and inclusive environments that included caseworkers, other interactions were more negative.  Although caseworkers had the most knowledge of and experience with families their participation was limited, and conversations were often directed through the attorneys.  Shaming rituals also occurred, with judges criticizing workers for the quality of their work, the slowness of the bureaucracy, and other deficiencies.  As the face of the child welfare bureaucracy, they served as an easy and accessible target for judges who were frustrated with what they, and often the public, perceive as its incompetency.   They sometimes became the scapegoat in the courtroom, blamed for not doing enough, or doing it poorly, when complicated and challenging cases went awry.

Courts are their own eco-systems, and how a judge treats all of the participants can have therapeutic or anti therapeutic effects.  This is particularly true of caseworker client interactions.  Exchanges within court help set the tone for the caseworker/parent relationship outside of court, and their willingness to comply with court orders.  Negative courtroom interactions, where caseworkers are treated disrespectfully and as less than competent, can undermine the caseworkers’ authority and give parents justification to question or challenge the fairness of their requests.  Positive courtroom interactions, where caseworkers are treated as valued and competent, can enhance the parent and caseworker’s relationship by providing parents with a model of cooperative action toward a shared goal.

T.J. provides a helpful guide for smoothing conflicts, and for creating an inclusive, participatory and respectful environment for all the participants.  As the study also showed T.J. can be incorporated into the busiest of traditional family courts, despite high caseloads and scant resources.  Notably, some judges hewed less to the strict rules of the adversarial process and more to the principles of T.J such as:

• A focus on voice, validation, respect, and self-determination;
• A more active role for participants where they are encouraged to participate in court dialogues, including shaping solutions;
• Support and positive inducements being preferred over threats and coercion;
• Sanctions are available, but used sparingly, as an educational and reflective tool rather than a punitive one. More common are rewards for good behavior rather than sanctions for bad behavior;
• Valuing collaboration over conflict, and teamwork over winning legal arguments.

Judges taking a T.J. approach do more than preside over proceedings, maintaining order and issuing decisions.  They also fulfill an essential leadership role, providing guidance, and even inspiration, to all of the various court actors working toward a common, rather than an adversarial, goal.  As such, they are expected to model positive behavior, while encouraging it in others.  While traditional judges strike a passive, neutral pose, a therapeutic judge is more active and engaged, displaying compassion and empathy.

As one example, while some judges directed the dialogue through the attorneys, other judges spoke directly to caseworkers, soliciting their opinions and insights.  This approach is especially warranted in regards to caseworkers, who are not the target of child maltreatment proceedings, and hence arguably less in need of the protection of adversarial rules.

Similarly, while some judges chose an antagonistic path, highlighting caseworker and agency error and conveying anger and disapproval in open court, other times judges took a gentler route, avoiding harshly criticizing caseworkers even when mistakes were made, and treating them as collaborators rather than impediments on the road to a family’s rehabilitation.
Other T.J. guided ways also exist to diffuse tensions when conflicts do arise. Questions about the efficacy or competence of the caseworker or the agency could be addressed in sidebars or the judge’s chambers rather than an open courtroom.  More generally, opportunities could be provided for judges, caseworkers and supervisors to interact outside of the courtroom for making (non-case) specific suggestions on collaborating more effectively.  Mechanisms could also be incorporated that invite both judges and caseworkers to provide feedback to agency supervisors and court administrators on systemic problems.

Judges fulfill an essential leadership role, providing guidance, and even inspiration, to every court actor.  Treating caseworkers disrespectfully, or as incompetent, can have a ripple effect, impairing how they do their job.   The better choice is for judges to model behavior that invites collaboration and respect, using the principles of T.J. to guide them.
Vicki Lens, J.D., Ph.D. Silberman School of Social Work, Hunter College, CUNY

The full study can be found at Lens, V., Katz, C., Suarez, K.S. (2016) Case workers in family court: A therapeutic jurisprudence analysis. Children and Youth Services Review 68, 107-114.

An earlier draft of the study can be accessed at https://ssrn.com/abstract=2860255