How would we know if justice is being served?
6 April 2023
Opinion: Bench books are publicly-funded manuals that help judges make decisions. Amid criticism of our Family Court using outdated and discredited theories, Carrie Leonetti asks why they're not publicly-available.
It is standard practice globally for judges to be provided with bench books on a host of topics relevant to their decision making. Bench books are manuals typically containing an overview of statutes, rules, cases, and relevant social-science research, often accompanied by expert commentary. They help judges in performing their duties and enhance uniformity in judicial decision making. For example, criminal court judges have bench books that help them craft jury directions and make sure that they cover the law relevant to jury decisions.
In New Zealand, bench books are secret, available only to judges. They could be hopelessly outdated or full of misinformation, and there would be no way for experts, legislators, lawyers, or the public to know.
I research and write about systemic responses to domestic violence and child abuse internationally. I’m a New Zealand expert in forensic psychology, expert evidence, and judicial administration. I have copies of the domestic violence bench books for family courts in the United States, the UK, Canada, Australia and Commonwealth East Africa. But I have never seen the New Zealand domestic violence bench book. I don’t know who prepared it, what it contains, or how its contents were selected.
In the context of family violence, well-written bench books highlight best practices and critique poor ones. Poorly written bench books, on the other hand, entrench poor practices and reinforce myths and misunderstandings about domestic violence. The introduction to the Judicial Bench Book on Violence Against Women in Commonwealth East Africa explains: “Some of the cases contained in the bench book offer examples of how particular courts have ably mainstreamed gender in judicial processes and/or applied internationally accepted human rights standards in the adjudication of matters before them. The book will thus act as a quick reference to judicial officers, in line with the foundations of the common law system.
“On the other hand, some of the examples contained in the bench book showcase how a lack of appreciation of the lived realities of women victims of violence can lead to denial of justice. The critique of such cases offered in the book will hopefully expose the injustice arising from failure to interpret the law through a gender lens, offering lessons to judicial officers.”
Bench books are publicly-funded and are a crucial part of judicial training. Internationally, they are usually written and/or edited by subject-matter experts and commissions. For example, the National Domestic and Family Violence Bench Book for Australia was coordinated by a professor at the University of Melbourne with international expertise in family violence.
I am particularly concerned that the child custody and family violence bench books for the Family Court are not amenable to public scrutiny. Our Family Court has been the subject of scathing criticism for its lack of expert understanding of family violence and its resort to myths and misunderstandings about domestic violence and child safety.
Judges derive their authority from democratic branches of government, so there is also a strong public interest in scholars, media, and electors knowing which judges are being trained, who is providing them with the information, and on what the training materials are based. Open justice demands that judges don’t make their decisions based on secret information.
There is no compelling reason for bench books to be treated as a judicial secret. On the contrary, publishing them promotes judicial transparency and enhances the rule of law. As the Bangalore Principles of Judicial Conduct explain: “Justice must not merely be done but must also be seen to be done.”
I am particularly concerned that the child custody and family violence bench books for the Family Court are not amenable to public scrutiny. Our Family Court has been the subject of scathing criticism for its lack of expert understanding of family violence and its resort to myths and misunderstandings about domestic violence and child safety. It is a legitimate question to ask from where judges are getting their information and what their professional development materials are telling them.
For example, our Family Court is notorious for continuing to subscribe to the discredited theory of 'parental alienation', which has been disavowed by health and human rights organisations globally, including the World Health Organization, the New Zealand Psychological Society, the American Psychiatric Association, and the UN Special Rapporteur for Violence Against Women and Children.
In 2018, the UN Committee on the Elimination of Discrimination Against Women criticised the New Zealand Family Court for its entrenched “systemic lack of trust of and insensitivity towards women who are victims of domestic violence”, practice of awarding care of children to violent fathers, and its routine resort to “the parental alienation syndrome theory, despite the fact that it has been refuted internationally”. It is my understanding that the current family violence bench book in New Zealand continues to contain information relating to this outdated and discredited construct. If true, the bench book is in urgent need of reform, and any judge who has used it to form their understandings about family violence and child safety needs immediate retraining.
Of course, there is no way to know how much dangerous misinformation the New Zealand family violence bench book contains because it is shrouded in secrecy. Why is New Zealand so out of step with international conventions around open justice and judicial integrity? There is an old adage: people who have nothing to hide, hide nothing. It is time for the Judicial Institute to make their bench books public and accept whatever consequences flow from the truth coming out.
Associate Professor Carrie Leonetti, Faculty of Law, is an internationally recognised expert on the intersection of science and the law.
This article reflects the opinion of the author and not necessarily the views of Waipapa Taumata Rau University of Auckland.
This article was first published on Newsroom, Secret court manuals shroud justice in secrecy, 6 April, 2023
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