Therapeutic justice: role in family court cases in Pakistan – 26 Mar 2023

Therapeutic justice involves a shift from adversarial proceedings to a collaborative and supportive approach

Family disputes in Pakistan, such as divorce, child custody and inheritance issues, can be emotionally charged and have long-lasting effects on the parties involved. In such cases, traditional legal proceedings can exacerbate conflict and division. However, therapeutic justice provides an alternative approach that prioritises the emotional and psychological well-being of all parties involved. Therapeutic justice in family cases involves a shift from adversarial proceedings to a collaborative and supportive approach. It aims to resolve disputes in a way that promotes healing, reconciliation and positive relationships, rather than simply enforcing legal rules. Family courts in Pakistan have been at the forefront of implementing therapeutic justice principles.

Therapeutic justice is an approach to the justice system that emphasises the healing and rehabilitation of offenders, as well as the needs of victims and the community. This approach is based on the idea that the traditional punitive approach to justice, which focuses on punishment and retribution, is not always effective in reducing recidivism or promoting public safety. The genesis of therapeutic justice can be traced back to the early 20th century, when some progressive thinkers began to question the effectiveness of traditional punishment-based approaches to justice. One of the early pioneers of therapeutic justice was John Augustus, a Boston shoemaker who in 1841 began to advocate for probation as an alternative to incarceration. Augustus believed that some offenders could be rehabilitated if given the opportunity to receive counseling and support, rather than being punished. In the 1960s and 1970s, therapeutic justice began to gain more widespread acceptance as a response to rising crime rates and growing concerns about the punitive approach to justice. During this time, several innovative programmes were developed that incorporated therapeutic elements into the justice system, such as drug treatment courts, mental health courts and community courts.

Today, therapeutic justice is increasingly seen as a more effective and humane approach to justice, particularly for nonviolent offenders and those with underlying mental health or substance abuse issues. The goal of therapeutic justice is to promote healing and growth for all parties involved, rather than simply punishing offenders for their actions. This approach recognises that offenders are often the products of complex social and economic factors, and that punishment alone is not sufficient to address these underlying issues. Therapeutic justice incorporates a range of interventions, such as counseling, therapy and rehabilitation programmes, to help offenders address their underlying issues and prevent future criminal behaviour. It also emphasises restorative justice principles, which seek to repair harm caused by the offence and promote healing for all parties involved. Several countries have implemented this approach in their justice systems, including New Zealand, Australia, the US, the UK and several Scandinavian countries, with the specific approach and scope of these programmes varying widely depending on the jurisdiction and the specific needs of the community.

The therapeutic justice includes mediation, restorative justice and other alternative dispute resolution mechanisms that can be effective in reducing the backlog of cases in the family court system. The studies published in various research journals indicate that therapeutic interventions in family disputes in the US increased the likelihood of reaching a settlement, reduced resolution time and improved parties’ satisfaction with the process and outcome. Mediation and alternative dispute resolution mechanisms in family courts in India led to a significant reduction in case backlog. Restorative justice was effective in reducing the time it took to resolve cases and increasing parties’ satisfaction with the process and outcome in family courts in Australia. These findings suggest that implementing therapeutic justice in family court cases can be beneficial in various contexts. Research studies conducted by Moscowitz (2007), Wright (2004) and Ross (2015) suggest that incorporating therapeutic justice principles into divorce proceedings can reduce conflict, improve communication and promote a holistic approach to conflict resolution. Further research is needed to fully understand the effectiveness of therapeutic justice in reducing divorce cases and promoting healthier outcomes for families.

In Pakistan, there have been efforts to incorporate therapeutic justice into the justice system, particularly in cases involving vulnerable populations such as women and children. Family courts in Pakistan aim to promote therapeutic justice by providing a less formal and more accessible platform for resolving disputes related to family and domestic matters. These courts frequently use mediation, counseling and therapy to help parties resolve their conflicts and address underlying emotional and psychological issues. Collaborative law is also used to encourage parties to work together to find mutually acceptable solutions. In addition, family courts in Pakistan are responsible for making decisions related to child custody and visitation, taking into account the best interests of the child and may order counseling or therapy for parents and children.

Some potential developments and improvements for the future include expanding the range of therapeutic interventions offered, ongoing training and capacity building for court staff as well as legal professionals, access to mental health professionals for litigants, raising awareness about the benefits of therapeutic justice among the public, leveraging technology, innovation to enhance accessibility and conducting research on its effectiveness. The implementation of therapeutic justice requires a comprehensive approach and has the potential to create a more supportive and collaborative system of justice that prioritises the well-being and healing of families involved in legal disputes. The challenges of family courts in therapeutic justice in Pakistan include lack of funding, limited community engagement, insufficient specialised services, inadequate technology integration and absence of monitoring and evaluation. Furthermore, there may be cultural barriers to the implementation of therapeutic justice in certain communities in Pakistan. This can include resistance to counseling services or alternative dispute resolution mechanisms, particularly in cases of domestic violence or other sensitive issues. Sensitivity to cultural norms and beliefs is necessary when introducing new approaches to justice. To address these challenges, the government should increase funding, engage more with communities, expand specialised services, leverage technology, establish monitoring and evaluation systems and collaborate with NGOs to enhance the provision of therapeutic justice services.

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