Mainstream judges apply therapeutic jurisprudence in a child protection case

Guest bloggers Tali Gal and Dahlia Schilli-Jerichower  explore how mainstream judges in a recent Israeli Supreme Court decision applied therapeutic jurisprudence principles by seeking to conduct the process in such a way as to maximise the wellbeing of the parties…

A child protection ruling given by the Israeli Supreme Court (Justices A. Rubinstein, A. Fogelman D. Barak-Erez) in October 2016, gives us an insight into how therapeutic jurisprudence (TJ) principles are seeping into the Israeli judicial systems.

This appeal was filed against the ruling given by the Tel Aviv District Court, by a mother whose little girl was declared as a “child at risk” and removed from her home.

The mother is a single parent of two children, one of them – a little boy – was on the autistic spectrum. She began receiving help from social services in various matters back in 2011, which included integrating her two children into a boarding school for a while.

In her appeal, she claimed that she is a good, devoted and functioning mother, and therefore drastic measures such as removing her daughter from her home was wrongful and would create more damage than good.

When giving their ruling, the judges showed a high level of sensitivity and compassion while recognizing the complex human aspects involved in this dilemma.

Their ruling reflects how TJ principles and ideas can be successfully integrated into complex judicial decisions.

The judges recognized the existence of emotions, suffering and distress of the mother and her daughter and expressed empathy with them.

The judges also explicitly considered the ramifications of their ruling on the mother and daughter’s chances of building a strong relationship in the future.

Approaching the litigants themselves, the judges addressed the major trust issues between the mother and the welfare system and encouraged the parties to work together and leave behind any previous tensions and conflicts. By doing so, the judges present the possibility that decision making with regard to child protection may involve family members, and not only professionals.

By providing explicit instructions and encouragement to the parties with regard to their relationship, the court’s ruling demonstrated that applying TJ practices in legal procedures can turn such encounters into therapeutic opportunities. By contrast, lack of such practices could result with an anti-therapeutic outcome while adding more tension to the already stressed child and mother.

Although the final ruling did not overturn the District Court ruling, it includes a “letter to the loser” (Wexler, 2014) and thus provides a compelling example of how powerful legal actors such as Supreme Court Justices can use TJ principles to make the legal encounter a more therapeutic one.

Child protection decisions are typically complex, painful and dramatic for children and families. Inducing TJ practices into child protection laws, procedures and practices may make them a little less so.

In our recent article Mainstreaming Therapeutic Jurisprudence In Family Law: The Israeli child protection law as a case study we considered the contribution of TJ to the theoretical development and practical advancement of reforms in child protection law, by presenting three dilemmas arising from The Israeli Youth Law (Care and Supervision)–1960 relating to its substance, procedures, and practice and integrating psycho-social findings into the legal discussion.

This article contributes to the slim literature connecting between TJ and child protection law (the leading examples are Barbara Babb, 1997; Susan Brooks, 1999; and Shelley Kierstead, 2012). Hopefully, it will promote the debate about ways to mainstreaming TJ in family law, so that we can see more use of TJ principles in court rulings around the globe.

If you are interested in this blog you may also be interested in a previous blog:  Can therapeutic jurisprudence improve family/child neglect/child protection courts?

About this post’s guest bloggers…

Tali Gal is Assistant Professor at the University of Haifa’s School of Criminology. Her scholarship integrates legal, criminological, and psycho-social knowledge and involves restorative justice, children’s rights, and therapeutic jurisprudence. She is the author of the book Child Victims and Restorative Justice: A Needs-Rights Model (Oxford University Press, 2011), and co-editor (with Benedetta Faedi-Duramy) of the book International Perspectives and Empirical Findings on Child Participation (Oxford University Press, 2015). Prior to joining academia, Tali was the Legal Advisor of the Israel National Council for the Child where she founded the Child Victim Assistance Project.

Dahlia Schilli-Jerichower received her L.L.B., B.B.A. and L.L.M. from the Hebrew University in Jerusalem. Her L.L.M. Thesis developed an analysis of Israeli family law through a therapeutic jurisprudence perspective, under the supervision of Prof. Leslie Sebba and Dr. Tali Gal. After qualifying as a lawyer, Dahlia served as a Law Clerk at the Family Court in Jerusalem and later at the Israeli National Labor Court. Dahlia currently works as a lawyer in the legal department of the Israeli Ministry of Economy.