Seen and Heard: A New Look At Child Participation in Family Disputes

• Published date: 01 July 2021
• Author: Karni Perlman,Tamar Morag
• Date: 01 July 2021
• DOI: http://doi.org/10.1111/fcre.12591

SPECIAL ISSUE ARTICLE

SEEN AND HEARD: ANEW LOOK AT CHILD PARTICIPATION

IN FAMILY DISPUTES

Karni Perlman and Tamar Morag

Israeli legislation adopted a unique model of children’sparticipation in conflicts adjudicated in family courts. The article

looks at this model and at the findings of one evaluation study and one follow-up study through the lens of therapeutic juris-

prudence. It considers aspects of therapeutic jurisprudence manifest in the model and in these studies’findings as well as the

potential entailed by broader adoption of this movement’s ideas for the model’s continued and effective implementation.

Insights that emerged from these studies’findings, which could enrich therapeutic jurisprudence and contribute to its imple-

mentation in various countries, are also suggested. In the last section, we look through a therapeutic jurisprudence perspective

at a development in Israeli law that promotes referral of family conflicts to non-adversarial proceedings and considers how

the children’srighttopar ticipation can also be implemented in these collaborative, out–of-court settings.

Key Points

Israeli legislation adopted a unique model of the participation of children (ages 6–18) in conflicts adjudicated in fam-

ily courts through the welfare units adjacent to the family courts.

Prior to its fullimplementation, the model was implemented in apilot project, followed by evaluation studies.

The results of the evaluation studies showed that, on the one hand, the participation made a substantial contribution

to both the legal process and the children’s welfare, and that, onthe other hand, there existed notable difficulties in

the implementation of the model due to the reservations of some of the lawyers and judges.

Therapeutic jurisprudence can serve as a theoretical basis for the model and can enhance its implementation, for

example, through the adoption of the therapeutic judge model and procedural fairness commitments.

A recent development in Israeli law refers family conflicts via the welfare units for non-adversarial proceedings,

and therapeutic jurisprudence can substantially assist in the advancement of children’s participation in these

proceedings.

Keywords: Child Participation; Children’sRights; Family Courts; Family Disputes; Non-Adversarial Proceedings; Thera-

peutic Jurisprudence.

I. INTRODUCTION

Recognition of the importance of children’s participation in legal proceedings affecting them,

particularly in family conflicts, has increased in recent years. This recognition comes forth in the

Universal Convention on the Rights of the Child (CRC) of 1989. A special legislative arrangement

was enacted in Israel, anchoring the right of children to participate in judicial proceedings dealing

with family disputes affecting them and stipulating a detailed model for their mode of participation.

The model is implemented in family courts with the assistance of the welfare units attached to them,

which include social workers and psychologists who take an active part in the process of giving the

We would like to thank the participants of the International TJ Conference in 2012, and of the TJ Conference (2016) and of

the annual Conference of the Non-Adversarial and Therapeutic Justice Center (2019), at Striks School of Law, College of

Management Academic Studies, Israel, for their helpful comments. An earlier version of parts of this article was published in

Hebrew in 2016. We thank Batia Stein for her perceptive editing and valuable comments.

FAMILY COURT REVIEW, Vol. 59 No. 3, July 2021 508–520, doi: 10.1111/fcre.12591

© 2021 Association of Family and Conciliation Courts.