Otago Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Otago Law Review |
|
Last Updated: 9 March 2024
F W Guest Memorial Lecture 2022
207
F W Guest Memorial Lecture 2022
Children’s Rights, Neuroscience and the Family Justice System – Are We Getting it Right?
Anita Chan*
Ka rere tuatahi aku mihi ki a rātou kua ngaro
i te tironga kanohi, koutou e ngā mate huhua o te wā, okioki rā ki te okiokitanga o te pō.
Rātou ki a rātou, tātou ki a tatou te kanohi ora e pae nei, tēnā koutou katoa.
Ngai Tahu, Waitaha, Kāti Māmoe
te mana whenua o te wāhi e nōhia nei e tātou, e kore nei ngā mihi ki a koutou e mahuetia.
Te Kaupeka Tātai Ture o Te Whare Wānanga o Ōtākou pōhiritia mai.
E mihi ana ki a koutou kua whakawātea nei i tēnei atāmira mōku. tirā, ki te matatini koutou ngā kaihāpai te ture,
Kua rūmene mai nei,
e tautoko ana i tēnei kaupapa nui whakaharahara, tēnā koutou, tēnā koutou, tēnā koutou katoa.
It is a great honour to be asked to give this address in memory of Professor Francis William Guest.
As a lawyer, Frank Guest handled a large number of important civil and criminal cases. While practising law, he also taught law as well as philosophy. When the University decided to create a new law faculty in 1959, Professor Guest was a popular choice for its first Dean. There, until his untimely death in November 1967, he ran a fine law school, which today, is recognized as one of the best – in my view, the best - in Aotearoa. Professor Guest personally taught a number of legal luminaries including Dame Judith Mayhew-Jonas, Sir Malcolm Grant, Dame Sylvia Cartwright, Sir Bruce Robertson and Professor Guest’s own son, Professor Stephen Guest of University College London’s Faculty of Laws.
Family law did not exist as a distinct subject in the law degree in
* King’s Counsel. Delivered at the University of Otago, 27 September 2022.
Professor Guest’s time. Separation, maintenance and guardianship were largely administered under the Destitute Persons Act 1910 and the Domestic Proceedings Act 1939.1 Divorce, then, would only be granted upon proof of wrongdoing such as desertion, habitual drunkenness, imprisonment of more than seven years for violence against a child of the marriage, and non-compliance with an order requiring the restitution of conjugal rights.
Despite the gulf which separates 1950s family law from present-day family law, I would like to think that Professor Guest might have found a connection with this evening’s address, because it is centred on children’s rights. Rights – along with associated concepts of duties, freedom and status – was a topic about which Professor Guest was passionate.
It gives me great pleasure to acknowledge the presence this evening of my colleagues, Professor Guest’s son, Jim Guest, his grandson, Sam Guest and his granddaughter, Hayley Guest. Also present is Diccon Sim, whose father, Professor Peter Sim, succeeded Professor Guest as Dean and who delivered the inaugural F.W. Guest memorial lecture in 1968. Today, Professor Guest’s legacy is ably continued by Dean Shelley Griffiths, herself an accomplished academic. You have Dean Griffiths to thank for tonight’s speaker.
I have appreciated very much the close association that I have enjoyed with the law faculty over many years. I first joined the University as a student in the days when the Government would hand out bursaries. It was the era of the Dunedin Sound – when the Netherworld Dancing Toys, the Chills and the Bats played at the Cook, the Gardies, the Orrie and the Bowler. We physically attended our lectures and hand-wrote our notes. Professor Sutton was Dean and we were taught by Professor Sim, Nigel Jamieson, Margaret Mulgan, Bruce Harris, Ian Williams, Geoff Hall, Ian Muir, John Smillie, Giora Shapira – who commanded a tank in the six-day war – Kevin Dawkins, Mark Henaghan and others.
I am grateful for the presence this evening of members of the judiciary, fellow silks, members of the law faculty, Professor Jo Sharp – Geographer Royal for Scotland, Professor Val Mc Dermid – the Queen of Crime, my learned colleagues and friends, my beloved husband, Neil, my sister, Belinda, who has travelled from Wellington to be here tonight, my stepdaughter, Charlotte and my staff. Following the sad death of the Queen, the latter are now known as the Sunshine Band.
Thank you all for coming.
For many adults, the experience of separating from a life partner is a traumatic one. However, parental separation is equally life-affecting for any children involved. The most immediate change for a child of separating parents will be a reduction of time spent with one or both
parents. The child may also have to change house, school, neighbourhood, region, or country. They may lose important links with whānau, friends, community supports, or a family pet. They may suffer a reduced standard of living or enduring effects of poverty. There may be a prospect of acquiring a step-parent – or two, step-siblings and half-siblings.
Yet, although parental separation has significant potential to impact a child’s life adversely and drastically, the decisions that will shape the changes for the child will be made by adults, and there is no guarantee that the child will have any input into them. The family justice system provides the overarching framework within which post-separation decisions are made. The focus of the system is on supporting parents to resolve their differences by agreement. However, if agreement cannot be reached, the parties will enter into an adversarial battle over competing legal rights.
Although children will be impacted by the decisions made, children are not parties in family justice processes and therefore do not have the same rights as their parents do to participate. Children do, however, have rights and in this address, I will discuss two of them: the best interests right and the right of the child to be heard, and I will discuss whether these rights are being upheld in our family justice system. These rights are two of the four key principles of the United Nations Convention on the Rights of the Child, which NZ has ratified. Although the Convention has not been comprehensively enacted into domestic law, New Zealand courts are required to interpret legislation in a way that is consistent with its obligations under international treaties, so far as the wording of the legislation allows.2 A review of cases indicates that the courts regularly do so.
The best interests right is set out in art 3 of the Convention. Art 3 requires that in all actions concerning children, including by courts of law, the best interests of the child shall be a primary consideration. Today, the notion that a child’s best interests should be a primary consideration when decisions are being made about them is uncontroversial. However, this principle is now backed by 21st century neuroscience which emphasises the importance for policy makers of investing in the best interests of children.3 In 2007, the National Scientific Council, based at the Center on the Developing Child at Harvard University, gathered together several of the leading US neuroscientists, developmental psychologists, pediatricians and economists. Their goal was to review the literature and reach a consensus about what is known about the science of early
childhood development, including its underlying neurobiology, and to use this knowledge as a basis to inform both public and private sector investment in young children and their families.4
The Council’s report opens by acknowledging the importance of fostering the health and well-being of the next generation:5
Stated simply, today’s children will become tomorrow’s citizens, workers and parents. When we invest wisely in children and families, the next generation will pay that back through a lifetime of productivity and responsible citizenship. When we fail to provide children with what they need to build a strong foundation for healthy and productive lives, we put our future prosperity and security at risk.
This brings to mind words spoken by John F Kennedy, who said, “Children are the world’s most valuable resource and its best hope for the future”. The report identified six core concepts of child development based on brain science.6 I would like to highlight two of them. The first is that:7
Toxic stress in early childhood is associated with persistent effects on the nervous system and stress hormone systems that can damage developing brain architecture and lead to lifelong problems in learning, behavior, and physical and mental health.
Toxic stress is one of three types of stress that may be experienced by children. The other two are positive stress and tolerable stress.8 Positive stress is necessary and healthy. It is generated by normal childhood experiences such as meeting new people, dealing with frustration, getting immunised and coping with adult discipline.9Tolerable stress has the potential to disrupt brain architecture, but is relieved by supportive relationships that facilitate coping. Tolerable stress is caused by significant threats, such as the death or illness of a loved one, serious injury, parent divorce, natural disaster or an act of terrorism. These kinds of experiences have potential long-term consequences, but are tolerable when they occur in a time-limited period in which supportive adults protect the child by reducing the stressful experience and the damage to their brain architecture.10
The third, and most threatening kind of stress experience, is toxic stress. This can be caused by, and I quote:11
... extreme poverty in conjunction with continuous family chaos, recurrent physical or emotional abuse, chronic neglect, severe and enduring
10 At 10.
11 At 10.
maternal depression, persistent parental substance abuse, or repeated exposure to violence in the community or within the family. (Note that these are the very types of stresses that a child might experience as a result of parental conflict and separation). The essential feature of toxic stress is the absence of consistent supportive relationships to help the child cope.
... Children who experience toxic stress in early childhood may develop a lifetime of greater susceptibility to stress-related physical illnesses (such as cardiovascular disease, hypertension and diabetes) as well as mental health problems (such as depression, anxiety disorders, and substance abuse). They are also more likely to exhibit health damaging behaviors- and adult lifestyles that undermine well-being.
A second core concept identified in the report is that: “Creating the right conditions for early childhood development is likely to be more effective and less costly than addressing problems at a later age”.12 Or, as Frederick Douglass put it in 1855, “It is easier to build strong children than to repair broken men”. The findings deliver a confronting message to all of us who are involved in the delivery of family justice. They highlight that when parents are engaged in the family justice system, their children are almost inevitably suffering significant stress. Opportunity exists to help alleviate and mitigate the risks for children. Failure to do so risks significant adverse consequences for them, their whanau and wider society. I suggest that this knowledge imposes an obligation on the family justice system to protect children and mitigate the risks to them. For this to be achieved, children’s best interests must be kept front of mind throughout the design and delivery of family justice processes.Article 12 of the Convention sets out the child’s right to be heard on matters affecting them in judicial and administrative proceedings. Research has shown that child participation in such proceedings is central to protecting their interests and mitigating harm. It reveals that children value being able to express their views. More than that, they want to be authentically involved in the decision-making process.
Professor Nicki Taylor explains that authentic child participation requires adults, including family justice professionals, to have the ability to:13
... engage effectively with children, provide information, aid understanding of the family situation and/or their parents’ dispute, scaffold the expression of their views, and explain the implications of the decision ultimately made.
Flowerdew and Neale reported that:14
Children have been found to be articulate and insightful commentators, with their perspectives pointing to ‘the diversity and particularity of children’s experiences of post-divorce family life and their active engagement within it.
This certainly accords with my own experiences acting as a lawyer for children. Their ability to participate meaningfully should not be underestimated.Dr Deb Inder identified that child participation “has been found to benefit children intrinsically” and conversely “excluding children from decision making has ... been found to cause unintended adverse consequences for children, increasing anxiety and causing a sense of frustration and isolation”.15 She further observed that:16
There is a growing body of evidence to support the premise that children’s participation also provides benefits to parents, impacting on their ability to make agreements, be more emotionally available for their children, and may lead to improved parent-child relationships and less parental conflict.
Again, this is consistent with my own experiences as counsel in cases where children have participated.Articles 3 and 12 are seen as being complementary. For a court to give effect to a child’s best interests, it must listen to the child’s views. The UN Committee on the Rights of the Child articulated the principle in this way:17
There is no tension between articles 3 and 12, only a complementary role of the two general principles: one establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing the child. In fact, there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives.
This analysis was approved by the Court of Appeal in Newton v the Family Court in May this year.18
But how well are the rights in arts 3 and 12 being upheld in our family justice system? I will discuss this question by referring to the
16 At 188.
two principal statutes that come into play when parents separate: the Care of Children Act 2004 and the Property (Relationships) Act 1976. These two statutes take contrasting approaches to the implementation of arts 3 and 12.
The Care of Children Act, commonly referred to as COCA, governs the care and guardianship of children. Proceedings under COCA form the bulk of the Family Court’s work: they take up 53 % of the total Family Court caseload and about 70 % of the total defended caseload.19 COCA goes beyond what is required by arts 3 and 12. Section 4 provides that in proceedings under the Act, the “welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration”. This provision is more expansive than art 3 which simply requires a child’s best interests to be a primary consideration. Section 4 goes on to require decisions affecting the child to be “made and implemented within a time frame that is appropriate to the child’s sense of time”. There is no such requirement in the Convention.
Section 6 provides that the child “must be given reasonable opportunities to express a view on matters affecting (them)” and that any views expressed “must be taken into account”.
So 6 also goes beyond what is required by the Convention. In art 12, age and maturity are qualifiers to children’s views being given weight. Not so in s 6. To enable the expression of children’s views, s 7 provides that the court may appoint a lawyer to represent a child. The primary way in which a child’s views are placed before the court is through a court-appointed lawyer for the child. In practice, lawyer for child is appointed in all contested cases brought under COCA that are not settled at an early stage. Together, ss 4, 6 and 7 of COCA give explicit effect to arts 3 and 12, and in fact, go beyond what is required by the Convention. So far, so good.
However, there is a gap. In cases where parents reach agreement at an early stage, before lawyer for child has been appointed, the court may be asked to make consent orders concerning a child without the child having had an opportunity to express their views and without the court having had the benefit of advocacy by lawyer for the child. This is entirely inconsistent with the obligations created by arts 3 and 12.
It should be noted that although the views expressed by a child must be taken into account by the court in reaching a decision, their views are not determinative of the outcome. Having a voice does not equate with having a choice. A review of cases decided under COCA shows that the courts take seriously, their obligations:
(1) To treat the best interests of the child as the paramount consideration;
(2) To ensure that children are invited to express views on matters affecting them; and
(3) To take their views into account.
But must the court consult a child at every step of a proceeding under COCA? In Newton v Family Court, the Court of Appeal was asked to determine whether the Family Court is required to invite the views of the children before it may order a psychological assessment of them.20 The Newtons, who are the children’s parents, argued that the Family Court must invite the views of the children before it may order a psychological report. They relied, among other grounds, on the wording of s 6, arguing that since the ordering of a psychological report was a matter affecting the children, their views must be ascertained.The Attorney General, whom I represented, the New Zealand Law Society, and Lawyer for Child argued that it was not necessary for the court to invite the views of the children before ordering a psychological assessment. Counsel relied, among other grounds, on the evidence of Professor Fred Seymour, a leading child psychologist, who said:21
... to require, or even invite, children’s participation on whether to obtain a psychological report runs the strong risk of further exposure to conflict, to the detriment of the child’s welfare.
However, s 4 contains an obscure subsection – s 4(4)(a) – which prioritises child participation over best interests. As the Court of Appeal noted, the effect of this subsection is that a court cannot deny a child the opportunity to express their views on the basis that doing so is contrary to their welfare and best interests.22 This subsection is inconsistent with the equal weighting given to articles 3 and 12 in the Convention. It is also inconsistent with pronouncement by the UN Committee, adopted by the Court of Appeal in Newton, that articles 3 and 12 complement each other and that “there is no tension between the two”.In my view, s 4(4)(a) should be repealed. It should be open to the courts to decide that a child’s views do not need to be sought if the court considers that doing so would be contrary to their best interests. An appropriate balance must be struck between facilitation of authentic child-participation, the best interests of the child and the expedient delivery of family justice.
The Court of Appeal concluded that it is not mandatory for the court to invite a child to express views before ordering a psychological report.23 In doing so, the court emphasised strongly, the importance of enabling authentic child participation. It stated:24
It would be difficult to overstate the importance in the scheme of COCA of the child’s right to express their own, authentic views on matters
22 At [226].
23 At [242].
24 At [229]–[230].
that affect them, and to have the views they express taken into account. Ensuring that children are supported to exercise that right is an essential corollary of treating their welfare and best interests as a paramount consideration.
But we accept the submission of the Attorney-General, the New Zealand Law Society, and Mr. Cooke, that this does not translate into a blanket requirement that a child’s views must be sought on any procedural step in proceedings under COCA.
The court noted a distinction between decisions which will have a material effect on a child and decisions of a nature which will affect children to a lesser degree - such as a decision to appoint lawyer for child– which is procedural in nature.25 However, the Court of Appeal stated, there is no “bright line between substantive decisions, in respect of which a child must have an opportunity to express their views, and procedural matters, where that is not required”.26 Rather, a “more nuanced approach is required which involves the exercise of judgment by [lawyer for the child] and by the court”.27
For those of you who are following Newton, the Supreme Court delivered a decision at 2pm this afternoon, dismissing the application by the Newtons for leave to appeal.28 The Court said:29
We stress that the interests of the children must be the first and paramount consideration and that decisions affecting them should be made in a timely manner, within a time frame appropriate to a child’s sense of time. It has been five years since the children’s grandmother applied for a parenting order. The substantive case has not yet been heard, with the interlocutory hearings and appeals causing significant delays. It is not in the interests of the children, and therefore not in the interests of justice, for this matter to be drawn out even further.
There is another gap. Sections 6 and 7 only apply after proceedings have been filed in court. They do not apply to out-of-court processes such as Family Dispute Resolution, known as FDR, which is mediation. Unfortunately, the reforms which introduced FDR in 2014 were silent on how the voice of the child would be heard at FDR. Contrary to art 12, parents are able to reach agreement about the care of their children at FDR (or indeed privately), without their children having a say. This represents a significant gap in the system since most couples are required to attend FDR before they may file an application in court and a good percentage of cases settle at FDR.In response to a recommendation of the UN Committee, the Government ordered a stocktake of appropriate models for child
25 At [230].
26 At [233].
27 At [233].
28 Newton v Family Court at Auckland [2022] NZSC 112. 29 At [5].
participation, including at FDR. That stocktake has now been completed and submitted to the Ministry of Justice.30 I have not seen the stocktake report, which is yet to be released. I am however concerned that the Government should not implement a recommended best-practice model without consulting fully with the profession and the judiciary. There is much in the present system of value and it is imperative that what is working well should be thoroughly understood by those seeking to design an improved model.
Last year, the Government introduced the Family Court (Supporting Children in Court) Legislation Act. This Act, which is yet to come into force, introduces amendments to COCA and the Family Dispute Resolution Act which aim to enhance children’s participation in decisions affecting their care and well-being, consistent with New Zealand’s obligations under the Convention. However, despite the stated aim of the legislation, no substantive improvements to child participation were enacted. An opportunity to materially broaden and strengthen the obligation to facilitate authentic child-participation was missed. Had the Government delayed the passing of this legislation until after the stocktake and its stakeholder consultations, it would have had the opportunity to enact its findings into law.
As we have seen, the processes for child participation under COCA are far from perfect. However, there is evidence of a genuine commitment by the Government and the courts to uphold arts 3 and 12. The same cannot be said about the Property (Relationships) Act 1976, known as the PRA. This is the statute that governs the division of relationship property following separation. Even though COCA and the PRA both deal with the consequences of a couple’s separation, the recognition given to children’s rights under the PRA stands in marked contrast to the approach taken under COCA. Section 1C provides that the Act is “mainly” about how property of a couple is to be divided when their relationship comes to an end. Thus, the PRA is mainly about the rights of adults. The purpose section of the Act does include a nod to the interests of children. It provides that a purpose of the Act is “to provide for a just division of the relationship property between the spouses or partners when their relationship ends ... while taking account of the interests of any children” of the relationship.31
The provisions represent a significant dilution of the principle expressed in s 4 of COCA. Instead of considering the best interests of the child as the paramount consideration in cases about property division, the court is only required, when assessing what a just division of assets would be, to take the interests of children into account. Thus, “best interests” have been diluted to “interests” and “paramount consideration” has been downgraded to “take into account”. This sits in stark contrast to
the 2014 family justice reforms (Ministry of Justice, May 2019).
the position in England and Wales, where s 25 of the Matrimonial Causes Act 1973 places minor children at the forefront of the decision-making on property orders following separation by making it a duty of the court to regard their welfare as a first consideration.
The PRA does give the court a range of tools that it can use for the benefit of children. These include orders postponing the vesting of assets, and occupation and tenancy orders. However, the key provision is s
26. There are two parts to s 26(1). First, it directs that in any proceeding under the Act, the court must have regard to the interests of children of the relationship. Secondly, it empowers the court to settle some or all of the relationship property for the benefit of children of the relationship, if it considers it just to do.
Section 26 does not properly implement art 3. It merely directs the court to have regard to the interests of children of the relationship. What it should do is require the court to have regard to the best interests of the child as a primary consideration. Although the court has power to appoint a lawyer for child under the PRA, its power to do so is narrower under the PRA than under COCA. Thus, while the PRA contains faint echoes of Convention rights, it falls well short of properly implementing arts 3 and 12.
In Babylon v Babylon, the High Court recognized that the PRA makes it clear that adult rights take priority over children’s rights.32 The court commented that its provisons “... recognize the subsidiary nature of the children’s interests in the division of relationship property”.33 As Professor Nicola Peart has noted, a review of the cases decided under the PRA reflects a dominant social policy of equality between adult parties.34 The courts have tended to treat children’s rights as being subservient to the main purpose of the Act which is to divide relationship property between the parties.35
In fact, children’s interests have rarely been found to justify a departure from the principle of equal division of relationship property. Instead, the courts appear to have adopted a highly restrictive approach, by insisting on evidence of exceptional or extraordinary circumstances, such as criminal offending within the family or severe parental neglect, before departing from ordering equal division.36 As Professor Peart stated:37
The courts’ self-imposed constraint on their power to settle property for the benefit of children of the relationship is well established, even though
35 At 55.
there is nothing in s 26 to support such a restrictive view of the power. It severely limits the court’s discretion and does not sit well with the direction in the first part of s 26(1) or the UN Convention on the Rights of the Child. As the constraint is a judicial gloss on the section, there is scope for a more liberal approach that provides better protection for minor or dependent children of the relationship whilst not losing sight of the party’s rights to a just division.
Scope exists therefore, for counsel to remind the courts of their obligation to have regard to the interests of children in all PRA cases. Appointments of lawyer for the child are rarely made in PRA proceedings.38 Perhaps this is because the power to do so is more restrictive than it is under COCA. There may be a reluctance to impose the cost of lawyer for child on parties in PRA cases. Whatever the reason, this approach sits in contrast to the readiness of the court to appoint lawyer for child in COCA cases.The low priority given by the courts to children’s rights in PRA proceedings was summed up by the New Zealand Law Commission as follows:39
Despite the PRA’s stated purpose – the mandate to have regard to children’s interests in section 26 – the tools available under the PRA – and the provision for lawyer for child, children’s interests have not played a prominent role in relationship property proceedings. Commentators observe that the courts make “little use” of the obligation to take account of children’s interests – the tools available to benefit children under the PRA are rarely used – and it is unusual for children to participate in relationship property proceedings – or for lawyer for child to be appointed. Instead, the focus of relationship property proceedings is on the property entitlements that the adult partners have acquired during their relationship - consistent with the primary purpose of the PRA.
Clearly then, the family justice system is failing to uphold children’s Convention rights in PRA cases. This is seen in both the wording of the Act and in its administration by the courts. Amendment is necessary if the PRA is to be made consistent with the Convention.What then, is to be done?
In September 2016, the UN Committee criticized New Zealand’s implementation of arts 3 and 12 and made recommendations for improvement of both the child participation and the best interests principles. The New Zealand Law Commission does not disagree. In its 2019 recommendations for review of the PRA, it acknowledged that the PRA must be amended to better reflect New Zealand’s obligations under the Convention.40 The Law Commission’s recommendations include that:
(1) Children’s interests should be elevated to become a purpose of the Act.41
38 At 54.
40 At [12.13]–[12.16].
(2) The court should have power to set relationship property aside for the benefit of any minor or dependent child of the relationship if it considers it just to do so.42
(3) The Government should consider ways to strengthen child participation in relationship property proceedings.43
(4) The Government should review the effectiveness of the Child Support Act in meeting children’s needs.44 Incidentally, the Child Support Act is woefully non-compliant with the Convention.
In its report, the Law Commission identified that many judges and lawyers are opposed to making children’s interests a primary consideration in relationship property cases.45 Concerns expressed included that doing so:
(1) May encourage strategic manoeuvering by a partner over care arrangements in order to gain an advantage in relationship property proceedings.46
(2) Would place children in the middle of a property dispute, introduce a degree of implied fault into no-fault legislation, increase litigation and prevent settlement.47
(3) May risk increasing disputes over care arrangements, giving care arrangements a financial implication.48
(4) May increase acrimony between partners at the time of separation, create cost and delay in proceedings and could be used as an illegitimate means to leverage a party’s own position.49
These are all legitimate concerns, which I share. As practitioners, we see all too often how willing some parents are to put their own financial interests above the welfare of their children. We see that elevation of children’s interests to a primary consideration has potential to place children at the center of a property dispute between their parents. We see the potential for increased litigation with attendant cost and delay and increased parental conflict. We see the risk that all of these things would create for children.To these concerns, I would add that if lawyer for child is to be appointed more frequently in relationship property proceedings, this will act as a drain on already scarce resources and create consequential delay. However, none of these concerns justifies denying children their rights. All of the concerns that I have noted in respect of the PRA
41 At 308 (R67).
42 At 308 (R68).
43 At 309 (R71).
44 At 309 (R72).
45 At [12.38].
46 At [12.38].
47 At [12.39].
48 At [12.39].
49 At [12.40].
arise equally in COCA proceedings. Yet there is no shying away from upholding children’s rights within a COCA context. On the contrary, the Government has passed legislation aimed at enhancing those very rights.50 The Court of Appeal strongly emphasised the importance of the same rights as recently as May this year.51 They are shouted from the rooftops by the Children’s Commissioner.52
Unlike the position under the PRA, under COCA, children’s rights are emphasised, and the risks are managed. The Family Court is well attuned to the risk of strategic manoeuvering by parents. In COCA cases, such conduct is taken into account by the court in arriving at its decisions. The same approach should be taken in PRA proceedings. The Government is legally obligated to facilitate and fund compliance.
What possible justification can there be for an approach that upholds children’s rights when proceedings are brought under one statute, but sidelines or disregards them in proceedings brought under another? The PRA and COCA often apply contemporaneously to the same family in the wake of parental separation. One would expect a consistent approach to be adopted regardless of the applicable statute.
One reason offered for the difference in approach is that the PRA and COCA have different purposes. Whereas the purpose of COCA is to promote children’s welfare and best interests, the purpose of the PRA is to give effect to adult rights.53 However, the Convention makes it clear that children’s rights in arts 3 and 12 are to be upheld whenever decisions are being made affecting them. There is simply no scope for selectivity based on the purpose of the applicable legislation. That would be a bit like saying that you can’t make apple pie out of apples grown at an orchard which mainly grows pears. By overlooking the potential impact of decisions made under the PRA on a child’s life, the family justice system is placing children in peril.
Consider, as an example, a case in which parental finances are severely stretched – hardly a rare phenomenon in the wake of the global pandemic, looming economic crisis and rampant inflation. Equal division of assets in such a case may have a severe adverse impact on a child’s life. Recent New Zealand research by Dr Michael Fletcher found that separation substantially increases poverty rates among separated parents; that these negative impacts persist for at least three years following separation; responsibility for the care of children after separation plays a dominant role in influencing financial outcomes; child support payments provide little assistance to many primary caregivers; and the level of assistance provided through state benefits is often insufficient to ensure individuals are not below the poverty threshold, especially if they have children living with them.54 Add to this, the findings in neuroscience that extreme
53 Law Commission, above n 39, at [12.32].
poverty along with other common features of parental separation – including continuous family chaos – can be a source of toxic stress for children, and that the effects of toxic stress on the child can be severe and longstanding with detrimental implications for wider society.
Continued sidelining of children’s rights under the PRA cannot be justified, legally or morally. Legally, New Zealand is bound to uphold children’s arts 3 and 12 rights and has been found wanting by the UN Committee. Morally, New Zealand has an obligation to acknowledge and act upon what has been revealed – by neuroscience about the importance of prioritizing children’s best interests – and by social science about the value of allowing children to participate authentically in decisions affecting them.
If Aotearoa is to comply with its obligations under the Convention, legislation must be passed which properly implements Convention rights and the courts must interpret all legislation in a way that is consistent with those rights. Failure to do both of these things will result in Aotearoa continuing to fail in its obligations to children. As a nation and a family justice community, our mahi is to strive to achieve an appropriate balance between the rights of children and any competing rights of their parents.
We owe it to our tamariki to do much better. In the words of Dame Whina Cooper:
Take care of our children. Take care of what they hear, take care of what they see, take care of what they feel. For how the children grow, so will the shape of Aotearoa.
Tena koutou, tena koutou, tena koutou katoa
54 Michael John Fletcher “An investigation into aspects of the economic consequences of marital separation among New Zealand parents” (PhD Thesis, Auckland University of Technology, 2017).
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/OtaLawRw/2022/1.html