Therapeutic Jurisprudence in Aotearoa New Zealand's Family Justice System

Abstract

Aotearoa New Zealand’s Family Justice System (“FJS”) has a dual therapeutic and judicial mandate. The balancing of the two roles has created difficulty since the Family Court’s inception in 1981. The FJS has been reviewed four times, and each review has considered how the dual roles should be balanced. The most recent review was completed in mid-2019. There have been concerns that the FJS is not meeting its therapeutic mandate. While some of the concerns with the FJS are related to changes made in 2014, some of the concerns have persisted for decades.

Therapeutic Jurisprudence (“TJ”), the study of the psychological impact of the law, can be used as a lens for professionals to see the law through its psychological impact. Its four areas of inquiry are the law, legal rules, legal procedures and legal roles (legal professionals in the justice system). Many of the concerns in the FJS are about professionals and the use of TJ to improve legal roles is an important change that can be brought to improve the FJS. Changes to laws and procedures takes time, but changes to roles can happen immediately. Furthermore, even if rules and procedures are antitherapeutic, legal professionals can improve the therapeutic impact of the FJS in the way they go about their work.

This thesis sets out the background and development of TJ. It then compares TJ to the other ‘vectors’ of the comprehensive law movement. It analyses how TJ has had an impact in family law before discussing the history of the FJS, the current state of the FJS, and analysing the proposed changes to the FJS released this year through a therapeutic lens. There is then a discussion about issues relating to the FJS independent of the 2014 reforms. Finally, there is a case study and discussion that highlight professionals adopting TJ can have an important, positive impact on those involved in the FJS.

While the FJS was formed with a dual therapeutic and judicial mandate, the FJS is not meeting its therapeutic mandate in many ways. The 2014 reforms to the FJS have been largely negative and have had a largely anti-therapeutic effect. The recommendations following the 2018-2019 review of the FJS are largely consistent with TJ and give several helpful recommendations to improve the therapeutic impact of legal roles. However, the recommendations do not go far enough to ensure that the proposed changes are fully resourced and enforceable.