Planned changes may silence children in the Family Court

22 Oct 12

The Government’s proposed reform of the Family Court is not protective of children and will effectively silence their voices in the Court.

Last month the Government released a set of proposals for changes to the Family Court.  Some of these have been welcomed by judges, social workers, lawyers, counsellors and other professionals involved in our world-leading Family Court system.

However, some of the proposals significantly reduce the voice and representation children currently have in proceedings which affect them.

At present, the Court is required to give paramount consideration to the  welfare and best interests of a child when it determines that child’s care arrangements.

Family lawyers are worried that the proposed changes will breach our international child rights obligations and also greatly erode the protection of children.

At present in determining what serves a child’s welfare and best interests, the child must be given reasonable opportunity to express views, and any views expressed must be taken into account.  Our international obligations require that children have an opportunity to be heard in judicial proceedings affecting them.

Under the Government’s proposals, lawyers will not be appointed to represent children in any Simple track matter, nor in any Standard track matter until the point of hearing and unless “serious” issues are identified.

No proposal has been made that provides any alternative way of independently gaining children’s views, obtaining information relevant to their best interests and independently advocating views and best interests before binding Court Orders are made.

Currently, children’s views are ascertained in a variety of ways, including by lawyers acting for children, social workers, psychologists, parents and judicial interviews.

The Law Society believes safe and sustainable agreements and Orders cannot be made without gaining the child’s perspective.

The New Zealand court system is rgarded as world-leading in recognising the rights of children and other countries look to us in this field.

We are recognised as a leader in meeting obligations under the United Nations Convention on the Rights of the Child, but the proposals compromise our position and significantly reduce compliance with our international obligations.

In the Government’s proposals, there is no way that a child’s view can be ascertained for the purpose of Family Dispute Resolution, nor in many cases involving a child’s contact with his or her parent.

The child’s perspective is important in shaping care arrangements as children often speak truth into proceedings when  parents are unable to do so because of their own distress during  separation.

The unavailability of this important information may also raise issues of safety and may well result in a reduction of time that a child spends with a non-caregiving parent.

The job of lawyers for children is to advocate the welfare and best interests of children, informed by their views.  Lawyers for children are the only independent advocates for children’s welfare and best interests in the system. While parties to proceedings usually claim to be acting in their children’s interests their own perspective may be compromised by the separation process. Traditionally lawyers have obtained a variety of important third party information regarding children from school teachers, the police, social workers and other professionals working with children.

There is a danger that critical information necessary for the protection of a child, or the maintenance or enhancement of their relationship with the parent, may no longer be available to the Family Court.

If a child does not have a voice or representation in proceedings, there is a real risk that parenting agreements and Orders will be made that are contrary to their welfare and best interests.

The proposal to largely eliminate lawyers for children from the process will place the safety of children at risk and will increase the possibility of Parenting Orders being made which are contrary to the child’s best interests.

Tim Black is a partner in Dunedin law firm Anderson Lloyd and an executive member of the New Zealand Law Society’s Family Law Section.

Prepared by Tim Black