Mainstreaming Therapeutic Jurisprudence in Family Law: The Israeli Child Protection Law as a Case Study

• Author: Dahlia Schilli‐Jerichower,Tali Gal
• Published date: 01 April 2017
• Date: 01 April 2017
• DOI: http://doi.org/10.1111/fcre.12272

ARTICLES

MAINSTREAMING THERAPEUTIC JURISPRUDENCE IN FAMILY

LAW: THE ISRAELI CHILD PROTECTION LAW AS A CASE STUDY

Tali Gal and Dahlia Schilli-Jerichower*

This article considers the contribution of therapeutic jurisprudence (TJ) to the theoretical developmentand practical advancement of

reforms in child care law. It does so by presenting three dilemmas arising from The Israeli Youth Law (Care and Supervision) 1960

relating to its substance, procedures, and practice. TJ is a “field of enquiry” that examines the influence of the law on litigants in

order to advance rules and practices that have therapeutic effec ts and to minimize the use of rules and practices that have antithera-

peutic ones. Following the TJ methodology, we integrate psyc hosocial findings into the legal discussion. We propose some thera-

peutic practices, as well as legal reform to make the child protection legal regimemore TJ friendly for children and families.

Key Points for the Family Court Community:

Imports insights from criminology, problem-solving, and restorative justice into the field of child protection

Includes some practical suggestions to make child-protection decisions more therapeutic

Suggests a principle of parsimony in child protection

Suggests a hierarchy of interventions for different levels of need for children

Suggests reform for the active involvement of children in child-protection decisions

Suggests an emphasis on active involvement of parents, through family group conferencing models as well as through

mainstream decision making

Presents suggestions for therapeutic judging practices for youth court judges

Keywords: Child Protection; Family Group Conferencing; Israel; Motivational Interview; Out-of-Home Placement;

Problem Solving; Therapeutic Jurisprudence; and Youth Court.

INTRODUCTION

The present article considers the application of a therapeutic jurisprudence (TJ) approach within

the context of family law and examines its unique contribution to the theoretical development and

practical advancement of reforms in family law.

TJ is a field of inquiry

1

concerned with the influence of the law on litigants. Its aim is to advance

practices that have therapeutic effects and to minimize the use of practices that have antitherapeutic

ones.

2

TJ is situated at the intersection of legal and social studies, and it involves such disciplines as

psychology, social work, sociology, and anthropology.

3

TJ introduces a new perspective in the

examination and assessment of the outcomes of laws and judicial decisions and the effect of these on

the mental health of individuals involved in the legal process: offenders, victims, plaintiffs, and

respondents as well as mental health and legal professionals.

4

The basic assumption of TJ is that the

law, as applied, can have both therapeutic outcomes, which should be encouraged, and antitherapeu-

tic ones, which should be minimized.

5

TJ differentiates between legal structures—procedural and

substantive rules—and practices of judges, attorneys, and social workers.

6

The existing legal struc-

tures, as well as the practices and techniques that are used daily by legal actors, affect the psychologi-

cal well-being and the emotional lives of those involved in the legal process. TJ relies on this

examination to provide tools for abolishing, changing, and amending legal arrangements that do not

Correspondence: tgal1@univ.haifa.ac.il; dahlia24@gmail.com

FAMILY COURT REVIEW, Vol. 55 No. 2, April 2017 177–194

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C2017 Association of Family and Conciliation Courts

conform to therapeutic values (TJ unfriendly) and to promote new legal structures that are consistent

with therapeutic principles (TJ friendly).

7

In addition to proposing reforms in existing legal arrange-

ments, TJ also seeks more therapeutic practices in the application of existing legal rules,

8

without

undermining the balance between legal rights, due process, or the fundamental principles of legal

theory such as justice, equality, neutrality, and proportionality.

9

In this article, we wish to contribute to the slim, yet expanding, literature connecting TJ and child

protection laws.

10

We review insights derived from the social sciences from which TJ can adopt ther-

apeutic techniques or practices for the use of legal actors. The Israeli Youth Law (Care and Supervi-

sion) 1960

11

serves as an excellent test case for evaluating the potential contribution of TJ to the

theoretical legal debate and to proposals for reform. Child protection laws incorporate the concept of

“the best interest of the child,” a legal standard that sits comfortably within the realm of TJ. Although

the principle of “the best interests” has been justifiably criticized for being obscure and improperly

defined, it is consistent with TJ values because it concerns children’s health and welfare. Existing

child protection structures (legal rules) and procedures presumably create a TJ-friendly framework,

including, for example, personal treatment plans for all children under the guardianship of the state.

12

The title and language of the Israeli Child Protection Law clearly indicates that the declared objective

of the law is therapeutic: the law lists the various treatment and supervision alternatives designed to ensure

the well-being of children at risk. The Child Protection Law authorizes the court to issue all the necessary

orders for the care and protection of minors at risk, including their education, training, and emotional reha-

bilitation; to order psychiatric examinations, treatment, or hospitalization; to place minors under the super-

vision of a social worker; and, when needed, to remove minors from their parents’ custody.

At the same time, it is possible to argue that precisely because the Child Protection Law is thera-

peutic in nature, the unique contribution of TJ to the current legal discourse is questionable. In this

article, we illustrate how TJ can enrich the already therapeutic discourse surrounding the Child Pro-

tection Law with new perspectives.

The present article focuses on three issues that are manifested in the law and that reflect the three

areas of interest to TJ: substantive law, the procedure, and the behavior of the legal actors.

The article proceeds as follows: We first analyze the legal authority granted by the Child Protection

Law to social workers to remove children from their homes and the internal tension in thedual role of

social workers. In the second part we address the provision that establishes emergency measures,

including the immediate removal of children in need of protection from the parental home. We next

deal with the behavior of child protection social workers (CPSWs) authorized to intervene according

to the Child Protection Law as they manifest in practice, in internal guidelines, and in the CPSWs’

training. We next present (1) structural recommendations relating to substantive law that involve an

explicit statement of the principle of parsimony and, consequently, a legislated “differential response”

approach; (2) procedural reform that involves an increased role for children and families in decision

making; and (3) recommendations relating to behaviors and practices of CPSWs, including the adop-

tion of practices developed in problem-solving courts, restorative justice, and positive criminology.

We conclude the article by summarizing the contribution of TJ to reforming child protection.

SUBSTANTIVE LAW: THE DUAL ROLE OF SOCIAL WORKERS IN CHILD

PROTECTION

According to the Child Protection Law, CPSWs are required to intervene and act for the protection of

minors who are in danger within their families, even if they must do it forcibly and against the parents’ will.

Such intrusion by CPSWs in the life of the family bears legal consequences because it changes the status of

parents toward their children. Although CPSWs are social workers in their training and therapeutic orienta-

tion, they act under the law as legal agents with extensive authority. Their interventions, therefore, are con-

sidered here as legal encounters with powerful therapeutic as well as antitherapeutic outcomes.

According to the Child Protection Law, CPSWs have far-reaching substantive authority, including

the power to determine the fate of children and their families (with or without judicial oversight, as

178 FAMILY COURT REVIEW