FLP 8 - Therapeutic Justice PDF

Takeaways Therapeutic justice is a mindset and approach that family practitioners should adopt in family law cases. It focuses on problem-solving and solution-based outcomes that are helpful and sustainable for all parties involved, especially the children. Family practitioners play a critical ro...

Takeaways Therapeutic justice is a mindset and approach that family practitioners should adopt in family law cases. It focuses on problem-solving and solution-based outcomes that are helpful and sustainable for all parties involved, especially the children. Family practitioners play a critical role in advising clients and promoting constructive and conciliatory conduct. The integration of therapeutic justice requires effective communication, avoidance of inflammatory language, and consideration of alternative holistic solutions. Andrew Yip (00:06.582) Now I\'ll stress again that the doctrine of therapeutic justice is not an examinable topic. It\'s a mindset, it\'s a doctrine. It is not something that we can test you on, but it is an approach that you must have in mind, an approach that you must adopt when you actually take on family practice. Thank you. And I\'ll turn to Mr Yeoh. Thank you, Mr Yeoh. Let me just bring up my slides. Andrew Yip (00:44.622) Okay, good morning everyone. I\'ll just deal in the next 15 minutes or so what therapeutic justice is in and how it has been integrated into the practice of family law. Andrew Yip (01:04.032) I\'ll cover three areas, broad areas, understanding therapeutic justice, the role of the family practitioner, and the application of therapeutic justice to family law practice. Andrew Yip (01:19.766) Now, the family justice system in the 1990s started to introduce mediation and counseling so that it\'s already ingrained into our system in certain respects where children\'s matters are concerned. Mediation and counseling is mandatory. Mediation has developed so much so that we can have mediation pre -commencement of divorce proceedings. but that\'s done mainly in the private mediation sphere. Once proceedings for divorce have started, mediation is conducted through the family courts. Now in 2014, as you all are aware, the new family justice courts, the family division of the high court, and through new legislation in the Family Justice Act and the new family justice rules 2014, were all incepted. Now, what is therapeutic justice or what I\'ll call TJ in the course of my presentation? It\'s basically a philosophy of how family law is practiced. It\'s looked through a lens of care. There\'s a mindset shift. And why do I say it\'s a mindset shift? Because how family lawyers practice in the past, pre -TJ, so to speak, and currently, is a shift of the approach, when we deal with clients, deal with our fellow learned friends, deal with the courts. And how we actually approach the cases that come before us in terms of finding solutions for the clients. So it did not necessarily be adversarial, sometimes reaching a concluded settlement without the need for a long battle and hardened litigation in the courts. would actually potentially create a better outcome for the children in particular, as well as for the parties. And generally research has shown that a mediated settlement between the parties where parents are stakeholders to the outcome of their own case have long lasting and sustainable outcomes for the children moving forward. Andrew Yip (03:44.984) post -divorce. So the focus is really problem solving, solution -based outcomes. It\'s more helpful as opposed to harmful consequences. So it\'s not about legal remedies, right? It\'s not going through the rule book and say, okay, I have a particular litigation ongoing or a divorce case that comes up. Let\'s apply the rules, right? And take out. application after application, Thinking that that is a solution to the family\'s problems post divorce or during the course of divorce. Now, outside of the realm of the family law and its cases, The social science aspects of family law have taken on a greater significance over the last decade. So mental health professionals, social, psychological, emotional, anxiety, grief, abandonment, are just some of the mental aspects, right, a party goes through in the course of divorce proceedings, or even the parties themselves. Depending on the reasons for the breakdown of the marriage, it could be domestic violence issues concerning the parents, concerning the children. You may have unfortunate children. who are differently abled. And those kinds of things, and aspects of the individuals involved in the family will be important in the consideration of the kinds of outcomes or orders the court may make. So ultimately, it\'s also a multidisciplinary approach. So you could also have, for example, which the courts have piloted, financial accountants, right, who assist the courts and assist parties in dealing with companies matters, valuation of companies, for example. Sometimes the dispute is really over the values of private limited companies. So ultimately it\'s about trying to achieve a more sustainable outcome, which leads to healing, restorative, holistic and forward looking Andrew Yip (06:12.746) court orders or terms of agreement and not mired in the past. So we are shifting from totally a huge complaint over hundreds of pages of affidavit, what happened in the past. To a certain extent, it is important, it is valid, but it is a question of how you link that past in the evidential aspects of a case. to trying to achieve what would be forward -looking holistic healing orders and outcomes for the parties. Presiding Judge Justice Debbie Ong as she then was in her speech, today is a new day in the Family Justice Court\'s work plan in 2020, expounded upon this idea and concept of therapeutic justice. So this is a quote from various paragraphs of her speech, it is a lens of care through which we can look at the extent to which the substantive rules, laws, legal procedures, practices as well as the roles of the legal participants produce helpful or harmful consequences. And in the underlying portion, family lawyers must problem solve as a team, especially where children\'s interests are at stake. The role of the family lawyer has changed. The bulk of family work will be advising clients well, helping them to make good decisions right from the early stages. And I\'ll cover this a bit more when I deal with the application of TJ in family law practice. and reach agreements that are reasonable, fair, workable, durable, and good for the children. Andrew Yip (08:00.462) So at paragraph 65, just wanted to flag, as for child arrangements, applications for custody care and access should not become tools to control the other spouse or to hurt that spouse. So sometimes in a dispute, children may be unfortunately used as weapons by one parent against the other. For example, taking the child away from the home, keeping the child, denying access, those things. are not encouraged and should actually be avoided because it is not in the interest of the children to be deprived of having a relationship with the other parent. In paragraph 51 of Justice Ong\'s speech, we look at how therapeutic justice will endeavor to assist parties in acquiring the skills they need to manage their lives ahead, how to manage conflict, how to co -parent and how to access appropriate support services in the future. The Court of Appeal, this was just the decision of Justice Andrew Pung who delivered the decision of the Court of Appeal. TJ is not merely an ideal, it is a necessity. It is not merely theoretical, but it\'s intensely practical. is axiomatic that relationships constitute the pith and marrow of family. When familial relationships break down, those relationships are damaged. Such damage cannot be repaired by way of material recompense. healing needs to take place. So you may have heard the president of law society, ex president of law society of Singapore, Gregory Vajendran has mentioned that family lawyers are healers. Justice Ong again as she then was in VVB and VVA, therapeutic justice is not about parties feeling happy and satisfied that they got whatever they sought in their present dispute. And it will be a grave misperception of Andrew Yip (10:04.056) TJ system is far too soon and tired to be tended to during court proceedings. Andrew Yip (10:14.186) Instead, TJ\'s system involves parties making what they may perceive to be sacrifices. So you\'ll see in some court decisions, the courts expect parties and parents in this kind of cases to put forward the children\'s best interests at the forefront, not look at their own self -interest in trying to get what they want out of the dispute. And importantly, letting go of what has hurt them deeply, refraining from doing inflammatory acts. Again, I\'ll elaborate this a little bit further. Against the other party, compromise by giving in and cooperating with the other parent. In some issues, taking responsibility where required and finding the will to recast the future. And this is what I mentioned earlier. It is about looking forward to the future and what is best arrangements that can be made. Notion of TJ operates within the framework of the law. So what the courts are emphasizing here is TJ doesn\'t exist in isolation, right? It exists and co -exists with the operation of the law and the legislation. So judges apply law and legal principles in a system that is non -adversarial and conducive to problem solving. Family law is rich in legal principles and jurisprudence that promote TJ outcomes. and all legal actors in the family justice system would do well to apply the law and achieve therapeutic justice for our families. I now come to the second part. What is the role of the family practitioner? The starting point for everyone ought to be rule 15A of the legal profession professional conduct rules, which came into force in 2015. And as you know, ECR deals with the principles of the rules, followed by the actual rules. So the principle here is one has to be constructive and conciliatory in the conduct of the proceedings and all matters relating to those proceedings. And I think this is critical for everyone to bear in mind. It is from the time those proceedings are contemplated until the resolution of those proceedings. Andrew Yip (12:36.994) When proceedings are contemplated, it actually means from the word get go when you first meet your client in your office, not when proceedings have commenced. So it\'s the time when you first engage with your client, when the client comes to you for preliminary advice or comes to you and the application has been filed. So rule 15.2 of the PCR, a legal practitioner represents a client in any family proceedings. Any family proceedings would be maintenance, GIA applications, as Mr. Yeoh mentioned, custody, can control, family violence, PPO applications. Inform the client of all available dispute resolution options. So this goes beyond just mediation and counseling, there\'s collaborative family practice as an example. of other available dispute resolution options. Advise the client to consider resolving those proceedings amicably, and again, to be constructive and reasonable when participating in those proceedings. And in 15.3, where children are involved, the client has to know and be advised. So the PCR is actually very specific. The family practitioner has to advise the client that when the courts make decisions concerning children, the welfare and interests of the kids override, right? And take precedence over the wishes of the parent and the wishes of the child. Andrew Yip (14:16.674) Justice Ong, again in another case of VDX versus VDY, family law practitioners must be aware of the ways, both overt and subtle. There\'s a particular reason in my view why her honor mentions overt and subtle, right? Because in the way we advise clients, in the way we approach matters in our discussions with clients, we may consciously or subconsciously, right? advise things, say things, right, which may be subtle to the client and it\'s picked up in the wrong way. And in which they can influence the parenting dispute. These include the language use in correspondence, the mindset they bring to the proceedings. If both parties counsel can work as a team, and this was the earlier point made, the family practitioners have to collaborate. In problem solving the appliance parenting method, they would have played a critical role in the delivery of TJ in our family justice system. You may ask, hang on a second, we are all representing one representing father, one representing the mother. We are sort of on opposing sides. How are we expected to collaborate? Well, the answer to that is not difficult. We\'re expected to collaborate because the interests of the children are paramount. So it doesn\'t mean you act for one parent, right? The parent\'s interest overrides that. So trying to collaborate and find a middle ground, right? And a solution is something that now family law practitioners are expected to do. Andrew Yip (16:01.718) In the Court of Appeal in BOI and BOJ, paragraph three, counsel are not mere mouthpieces for your clients. So it is not about the, these are my clients\' instructions, Your Honor. That is not the way to practice family law or indeed not the way to practice law at all, no matter what area of law you\'re looking at. You\'re not just a mere mouthpiece. You do not do the bidding of your client and particularly so the expectation of family law practitioners actually now pegged much higher than previously. Andrew Yip (16:42.266) If you look at the last four lines, there\'s a reason why lawyers are known as counsel. In such situations, lawyers must counsel their clients and apprise them of what is permissible and what is not. Andrew Yip (16:58.166) And later on in the judgment, the Court of Appeal also mentioned. Family law practitioners have to be especially aware of this in family proceedings because such proceedings are frequently driven by emotional and even bitter clients to the extent that they do not counsel and or even if necessary admonish their clients and scrupulously observe their duty to the court. Lawyers fail to live up to their calling as members of a profession whose hallmarks are honor and justice. So the bar has been set very high for family law practitioners. And this is the observation and comments of the Court of Appeal. So what does TJ all mean to us as practitioners? Well, your approach when you advise clients, the starting point right from the word get go, the approach to the dispute, you certainly will significant influence over the client. Why? They are at a vulnerable stage of their life, if they\'re marriage, right? They come to a professional, you, the family practitioner, they look to you as the expert who knows, right, what family law is about. What you suggest or say to the client overtly or subtly will impact where they\'re going to go from there. So if you advise them, no, I think we should litigate, we should file the application, we should do this, do that. They\'re likely to take your advice. But it\'s your responsibility to take a step back. Manage the client\'s expectations. Try and decipher the true intentions. Is it really to make life difficult to the other parent, to punish the other parent? Solutions to the issues, not necessarily litigation. A practical, sensible, long -lasting outcome of a settled agreement would potentially be better. Andrew Yip (18:56.354) The reality is most of the cases in the family courts are resolved through settlement and mediation. Communication between the parties. You can suggest to clients what\'s a better way to communicate. Take the stink out of the language, sarcasm, be more open, be more considerate in language. Obviously the interests of the children bears paramount consideration. What about conduct of proceedings? Again, in the correspondence, if you\'re writing to a litigant in person, or writing to another law firm on the other side, avoid inflammatory sarcastic language. Not only in correspondence, but also in affidavits and written submissions. I think it is safe to say that judges do not appreciate this kind of language. in any of the court documents. So the litigation by correspondence should be avoided. It really does not assist your own client\'s case if you truly sit back and think about it. But not construgatory and constructive approach as per Rule 15 of the PCR, not the retaliatory, not destructive, not acrimonious. Look at alternative holistic solutions for the client. not focus on just purely legal remedies and collaborate with your learned friend. So for example, there could be a dispute over access hours or delayed return time. The answer to that is really not to rush to court with an application and filing three affidavits, submissions, and having a half -day hearing court. It\'s about sitting down with your learned friend, having that discussion, if necessary, have a meeting without prejudice with your clients. to knock out what would be the way to resolve a difference of hours of access, for example. Litigation costs would not be commensurate with trying to solve this kind of issues as an example. So that\'s what I have for you on TJ. And it\'s what it is about the role of the family lawyer and how we try and apply TJ. Andrew Yip (21:21.088) in the practice of family law. Thank The {{c1::paramount consideration}} in family court cases involving children should always be {{c1::the best interests of the children involved.}}