Violence and the problem-solving court The Honourable Judge Nancy A. Flatters Provincial Court of Alberta, Calgary Family and Youth Court prepared for.

Violence and the problem-solving courtThe Honourable Judge Nancy A. Flatters The Honourable Judge Nancy A. Flatters

Provincial Court of Alberta, Calgary Family and Youth Court

prepared for the IAWJ 2012 London Conference and adapted from a March 2006 programme of judicial training designed and implemented for the Magistracy of Trinidad and Tobago by Canadian Judges Nancy Flatters and Heino Lilles

copyright: Nancy Flatters: use or reproduction prohibited without permission - please contact Judge Flatters at: [email protected]

Why Think About a Different Way of Processing DV Cases/Justice?

Because:• We owe it to our children: our most precious

resources; • We owe it to our community and the public; • DV parties have different needs to be met; and

A courthouse has the potential to be a community resource – not a place of last

resort*

Adapted from Adams and Bussin, Alternative Dispute Resolution and Canadian Courts: A Time for Change,17 ADVOCATES’ QUARTERLY 133-157 (1995)

Is There a Problem to Fix?From the Systemic Perspective

Yes• The formal justice system does not work well in

DV to promote: • rehabilitation of offenders• specific and general deterrence• reparation/restoration to victims• responsibility among offenders• prevention of future offending

Is There a Problem to Fix?From a Court Perspective

Yes• proceedings delayed – 4 to 12 months• victims recant or fail to appear in court• results in high trial collapse rates • DV cases inefficient and costly• no evidence that punishment reduces DV

Is There a Problem to Fix?From The Victim’s Perspective

Yes• victim’s long-term goals unmet (stop the DV)• aggravates economic/social/parenting needs• system cannot protect victim• zero tolerance/punishment lacks rehabilitation • low rates of disclosure/high recantation • does not meet changing needs of victim• adversarial process re-victimizes

Is There a Problem to Fix?From Society’s Perspective

Yes• DV cases are inefficient and costly• adversarial approach reinforces negative

stereotype of DV victims for judges, police, and legal counsel

• no evidence formal system reduces/prevents DV• does not interrupt intergenerational impact of

violence• low reporting rates

Why Talk About This?

To increase problem solving access to justice in DV cases

• accessing/framing delivery in an alternate context of non-adversarial DV problem solving

• access/barriers to justice in the DV context

• the changed role for the judge/legal counsel/ court in response to DV problem solving

• alternate/appropriate problem solving framework for DV cases

Public’s Need in Accessing Justice* To have disputes and problems resolved• quickly• cost-effectively• efficiently• fairly/justly

in a system which is• understandable• responsive • effective *See The Right Honourble Lord Woolf, Access to Justice, Final Report, (July 1996)

Perceived Barriers to Accessing Justice Systemically (in part)

• delays attributed to lack of time and resources

• lack of judicial enforcement

• in DV – stays and trial collapse

Adapted from Lord Woolf, supra

Perceived Barriers to Accessing Justice DV responses in a traditional court

• courts only provide courtrooms and judges to try cases and not problem-solve

• the system remains geared to resolving DV cases by adversarial methods

• traditional DV trials take away party control to solve the problem of DV on a consensual basis with input into the decision

Adapted from Lord Woolf, supra

Overcoming Barriers and Creating Access to Justice in DV Cases

Problem-solving assumptions in DV cases

• early problem solving results in fewer trials/expense

• a more expedited and accessible forum

• opportunity for problem solving within traditional court system

• appropriately tailored approaches leads to greater party satisfaction including the justice system

Adapted from Lord Woolf, supra

Overcoming Barriers and Creating Access to Justice in DV Cases, con’t

Why talk about this?

• the idea of justice is based on the perception of the operation of law and process on the part of the public using the system

• the system must be responsive and relevant to the needs of contemporary society

• result: changed role for judicial officers in taking leadership for managing approaches to resolving DV in a problem solving changed court context

Adapted from Lord Woolf, supra

Overcoming Barriers and Creating Access to Justice in DV Cases, con’tProcess change with judicial leadership:

• effective alternate systemic case approaches in understanding the critical role of court in DV• case management

• judicial oversight/enforcement

• appropriately trained staff and supports

Overcoming Barriers and Creating Access to Justice in DV Cases, con’tResult

• changed role of judicial officer in DV cases

• move from traditional/passive/reactive judging to non-traditional/inter-active/ proactive judging with judicial officers as active problem-solvers

• changed role of legal counsel in DV cases in move from adversarial litigation to DV problem-solving approach

• system becomes more responsive to the needs of contemporary society

Re-framing the DV Approach

Core training/learning for judicial officers: • nature of DV in the family• attitudes, behaviour and beliefs perpetuating DV • behavioural/organic effects of DV on adult/child • link to custody/access/parenting cases to reduce

fragmentation in DV cases • DV as an issue for all professionals/community• role of the judicial officer in stopping DV• effective approaches and orders• effective judicial enforcement

DV Is Different – Requires Innovative Responses in a Learning Re-frame

• repetitive• escalates over time• victim has ongoing relationship with offender

• children/property/economic dependency

• lethality risk increases if seeking help from justice system

• victim often returns to live with offender• DV victims needs are different from other

victims

Against this Backdrop

• why a Problem Solving DV Court (DVPSC)?• recognizes DV as a serious criminal act

requiring an integrated/innovative response

• is NOT diversion• it is a therapeutic problem solving court

Avoid Fragmentation: best practice?

• recall: in DV parties have integrated family/legal issues

• create a roadmap vision to avoid fragmented multi-court response • deal with myths: ex. - placing DVPSC in a

family court “diminishes” DV’s criminal nature • educate/create public awareness

Consider Resources Going Forward

• increase awareness: ex.: available/wide information re impact of DV on children

• provision of specialised services

• community responsibility to assist the court in establishing specialised services

• effective means to ascertain children’s wishes (caution re judicial interviews)

Consider Resources Going Forward

• child custody legislation needs to reflect the reality of DV

• community coordination of services to victims, perpetrators, and children to address safety and counselling

• parenting classes made available for men and women in dv relationships

Judicial Officers Lead in Response to DV and Creation of Change

• Judiciary takes a leadership role by:• engaging courtroom professionals in

discussing DV problem responses with: crown, defence, probation, treatment providers, government/community groups, victims/families

• identifying the problems/begin to discuss solutions

• Purpose: to begin crafting a DVPSC

Need To Eliminate DV “Silos” and Create a Circle of Consultation

Silo:Police

Silo:Victim Services

Governmental Services (ex.: Family and Children)

Addictions (alchol/drugs) ServicesFamily Counselling and other Services

Silo:Medical

Hospital EmergencyGeneral Practitioners

Govenmental: (ex.: Health)

Silo:Prosecution

Silo:Defence: Private Counsel/Legal Sevices/Legal Aid

Need To Eliminate DV “Silos” and Create a Circle of Consultation

SiloOther Agencies

Women’s Directorates/ServicesStatus of Women Organisations

Women’s CentresTransitional Homes

Housing Organizations

SiloClient Diversity Programmes

Cultural Alcohol and Drug Social Services

Probation ServicesBail Supervision

ProbationParole

Offender/Victim/Child ProgrammesSpousal Abuse Programmes

Children’s Programmes/ServicesAlcohol and Drug Services

Family Counselling and others

SiloCourts

After Talking: Take Action

• form a Steering Committee for DVPSC of major stakeholders to develop parameters

• expand to include government/community groups working with DV victims, offenders, children

• set regular times to develop/review/implement policy/standards/best practices/evaluation

• establish working groups

DVPSC Goals

• encourage more victims of DV to seek help from the criminal justice system

• provide a non-adversarial, therapeutic court alternative to formal criminal court

• fast track/reduce collapse rates for DV cases

• hold the offender accountable by close court supervision throughout the therapeutic process

• provide victims/families with protection/ support/information/referral to programmes

Other Benefits of DVPSC

• an emphasis on “healing” with community input into justice system to result in better co-ordination of community resources

• police/legal counsel/judicial officers more informed about DV

• victim service workers/counsellors/probation officers/participants better understand the requirements of justice system

• stimulates development of special programmes: ex.: substance abuse/victim support/female offenders/children

Think About Your Thinking: Future Initiatives for Problem Solving Integration at the Outset• take a step further and make an integrated overall

Problem Solving Court to address underlying behaviors of offenders with substance abuse problems, mental health issues and/or other behavioural/brain disorders

• assess offenders to offer individual treatment plans

• court supervision to progress

• requires: enhancement/coordination/integration

• of treatment/services to individuals

Integrated Response Example: the Family Court of Trinidad and Tobago

• in March 2006, magistrates attended a training in transforming its traditional DV Court to a DVPSC (“thinking about thinking”)

• Family Court becomes an integral part in reducing fragmented approaches for families: reflected in services/physical plant

• result – the holistic needs of the family are met in an integrated place/system responding to the parties’ needs

• result – problem solving accomplished with judicial leadership/community vision/creative allocation of resources

• result – problem solving reflected for community

a different way of “doing business”

Church House Conference CentreLondon