Therapeutic jurisprudence and the Children's Court: creating a more relational approach to protection and care proceedings

The focus of this thesis is deeply practical insofar as it examines how existing laws, practices and procedures can be more therapeutically applied in the Children's Court. The research is situated within a contested public policy arena in which multiple calls are being made to move the child protection system towards a more holistic and less incident-based response. The purpose of the research was to assess how the Children's Court of Western Australia and its legal response to families in adversity could be more therapeutic. It grew out of the need to deal with the now well-established critique in the Australian research, numerous inquiries and scholarly literature about the impact that the adversarial legal system has on court participants. Therapeutic jurisprudence has been used as a template for this research as it teases out the therapeutic and non-therapeutic potential of the laws and practices in the Children's Court. In this thesis, the contemporary legal context within which child protection operates is described, and the key challenges and controversies facing contemporary child protection systems around Australia are outlined. A comprehensive account is provided of the core tensions that are articulated in the literature, that suggest the traditional adversarial model of law may be an ineffective remedy for the often long-term and complex individual and family problems seen in the Children's Court. The way in which therapeutic jurisprudence has emerged in response to many of these tensions is described. By means of semi-structured interviews with parents and families, magistrates, lawyers and court staff, and participant observation of the Children's Court, the experiences and perspectives of the people involved in the court were obtained. The findings focus on the potential for change at the ‘micro’ (procedural level), 'meso' (policy) and 'macro' (conceptual) levels.