Reimagining Courts As Dispensers of Justice After Coronavirus

During a recent training, a judge showed us a glimpse of his future courtroom and what awaits us when juvenile courts reopen.

A plexiglass shield will separate the judge from the litigants. Attorneys will spread out across the courtroom. Parents and children will be seated apart from their own attorneys. Everyone will wear masks.

What I saw frightened me. This can’t be our new normal in child welfare.

Even before the pandemic hit, many of my clients – children, foster parents and parents – feared going to court. Attending court hearings created fear, stress and anxiety. In part, these feelings were invoked by what courts symbolized to them. It was the place you went before you were locked up. Or lost your home. Or got your kids taken from you. Why would anyone possibly want to go somewhere where they could face those consequences?

Additionally, attending court hearings meant taking a day off of work, when a parent really needed the wages. It meant missing a day of school, when a kid couldn’t afford to fall behind. It meant paying for parking, and maybe a ticket when your court hearing went long.

Few of the families I’ve worked with would describe courts as welcoming places. What they would describe illustrated how we had an access-to-justice problem long before the pandemic hit.

Nevertheless, we stubbornly clung to a system which made the courtroom the central hub of all activity. Professionals went to court to meet with others to discuss and try to resolve issues. Attorneys went to court to meet with their clients right before hearings. Everyone went to court to obtain orders. The courtroom was the prime – and maybe only – location in which stuff got done.

And now courts might become even scarier?

This doesn’t have to be our new normal. To change this trajectory, we must re-examine our traditional belief that courts serve families by simply existing as a physical space that families must enter to get a judge to make a decision.

Instead, we should think of courts as justice dispensers, entities that offer a variety of tools to families and stakeholders, only one of which is the courtroom. In this reimagining, juvenile courts would play a leading role in partnering with communities to keep children safely with families. For example, courts could:

  • Fund multidisciplinary legal advocacy teams to represent parents both before and after the filing of a petition to prevent the need for children to enter foster care and to reduce children’s time in care.
  • Convene and lead meetings in the community to make sure the appropriate services are available to at-risk families to prevent the need for out of home care.
  • Support mediation, family group decision-making and peacemaking programs that give families the opportunity to resolve issues without the need for judicial intervention.
  • Closely review requests for separating children from their parents to ensure that agencies are making reasonable efforts to keep families together before seeking court intervention.
  • Convene weekly or monthly virtual hearings on Zoom or other platforms to supplement in-person hearings. Expedited hearings could create the sense of urgency that is often lacking in juvenile court and could get kids in foster care home more quickly. Virtual hearings might also be a more effective way to connect with youth in foster care, many of whom are often apprehensive about attending in-person court hearings.
  • Create streamlined, electronic processes for parties to get the court to enter agreed-upon orders, schedule a new date, or raise issues needing immediate attention. For example, when parties agree that a child should come home, courts could establish online systems in which that can happen immediately, rather than at the next scheduled court hearing.

These are but a few examples of steps juvenile courts can take to embrace the “new normal.”

Recently, Bridget McCormack, chief justice of the Michigan Supreme Court remarked, “This crisis might not have been the disruption we wanted, but it’s the disruption we needed.” She’s right. We need to use this opportunity rethink how juvenile courts serve children and parents while reducing the need for families to ever go to court.

Yes, this will require judges to re-examine their role and lead in ways that they have never led before. It will require them to do more than to wait until the litigants appear before them in court. It will require them to be more proactive to create resources that might stem the tide of cases coming into the court system.

But if they do, the “new normal” they create will be far more just and equitable than the system we currently have.

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Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School. Follow him on Twitter at @vivekssankaran.

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