Throughout my career as a judge, I have tried to persuade litigants to understand their obligations and responsibilities to one another and to those who will be affected by the litigation and its outcome. In this section I will refer to my judgments and decisions, and to those of other courts, which I see as advancing this point of view, and to relevant papers and documents in the field.
There have been radical changes over the last 20 years in the perception of the family – what constitutes a family, how it is formed and dissolved (if it is proper to talk of dissolution when there are several generations involved), and what are the relationships so constructed? (I shall be addressing some of these changes in a paper at the 6th World Congress on Family Law and Children’s Rights).
In addition, there is an increasing awareness that family strife affects all members of a family, and that legal proceedings cannot provide all the solutions.
From my professional work in the Israeli Family Court, and from contacts with colleagues and members of other professions in Israel and abroad, it has become clear that there is a need to change several paradigms. Among these, there needs to be a shift from adversarial processes to those which encourage, and even require, dispute resolution techniques; and concepts such as custody and visitation need to be replaced by language of parental responsibilities. (See my paper [in Hebrew] The Future of the Family Court; Paradigm Shifts, Legislative Changes, etc.).
But these are not the only things that need changing. A family in distress needs to be helped holistically.
Much of the focus in recent years, in journals such as Family Court Review, the excellent quarterly published by the Association of Family and Conciliation Courts (AFCC), and conferences such as those of the World Congress on Family Law and Children’s Rights and the AFCC, has been on children and the effect of violence, separation and divorce. These are the traditional fields of family law.
But members of families, not only children, are affected by a wide array of legal proceedings. Some examples:
When a child is removed from a family under child protection statutes, or laced for adoption, do we pay enough attention to the effect on the child’s grandparents, or the child’s sibling who continue to stay with the parents?
When an application is made to appoint a guardian for an elderly or disabled person, (and sometimes to declare him incompetent), how much attention do we pay to the tension between the duty to protect that person and the duty to respect his autonomy?
How much do the courts, judges and lawyers, and the litigants themselves, know about the neurological and psychiatric effects of stress on a child, or an elderly person, or a person suffering from mental or intellectual disabilities, whose family is engaged in proceedings.
How much do therapists – marriage counsellors, psychologists, psychiatrists, and the like, know about the law and legal thinking? And do educators, including day-carers and kindergarten teachers, know how to detect stresses in a child, and how to intervene with parents and warn them and persuade them to get help?
When a parent is arrested and kept in custody or given a prison sentence, how much attention is given to the effect on his children and his parents, and what is done to help them?
These, and many other issues, require multidisciplinary research and pilot programmes, and free interplay between academics and practitioners in all the relevant professions.
To this end, I have been involved in setting up a multidisciplinary council in Israel, whose objectives include the encouragement of research and interdisciplinary learning and teaching in these spheres.