Family Court

Principal Family Court Judge P D Mahony

Paper presented to the Melbourne IAYFJM Congress

Date October 2002

It has been said that:

"A society's views about the value of children and the role of the family are determined by the social, political, and economic factors prevailing in that society and are reflected in the laws relating to the care and protection of children". (See Trapski's Family Law Volume One NT.1.01)

Put another way it has also been said that:

"One of the functions of family law is to express contemporary values and beliefs about the family. Family law tells us about the conceptions of childhood held by law makers and the law makers' perceptions of children's relationships with their families and with society". (See Henaghan and Tapp "Judicial and Legislative Conceptions for Childhood and Children's Voices in Family Law" in "Advocating for Children" eds Smith, Gollop, Marshall and Nairn).

In this paper I refer to two modern New Zealand Statutes, which are the product of the social and political climate prevailing at the time, taking contrasting approaches to care and protection issues affecting children.

The Children Young Persons and Their Families Act 1989

The Children Young Persons and Their Families Act 1989 is an innovative and challenging code for care and protection of children. That is how it appeared when it became law and that is the current view following thirteen years experience with this legislation.

It gives the wider family a central decision making function and emphasises the principle of minimal intervention. The Department of Child Youth and Family Services (CYFS), which is the State Department responsible for intervention in families in cases of abuse and neglect of children, is cast in the primary role of supporting families. The Family Court in turn manages the legal process through a range of orders and periodic reviews based around objectives and plans presented to it.

The history of the legislation is a key to understanding its underlying policy.

Underlying Policy

A Bill for new child protection law was before New Zealand Parliament in 1986 and in the normal course was referred to a Select Committee of Parliament for public consultation. As a result of that process and following extensive consultation with Maori (the indigenous people of New Zealand) and with Pacific Island people, in particular Samoans who have settled in New Zealand in large numbers, the Bill was turned on its head and completely recast.

Maori family structures do not follow the nuclear family model. Grandparents play an important part in instilling family and cultural values in their mokopuna (grandchildren). Aunts and Uncles are also involved, and through whangai (a Maori practice whereby children are brought up within family but not by the natural parents) children are sometimes brought up within the families by 'adoptive' aunts and uncles. The extended Maori family is called whanau and a group of whanau makes up the hapu, who collectively form a tribe or iwi. Within Maoridom the child is regarded as the taonga or treasure of the whole family group, primarily of whanau, but extending out to hapu and iwi.

This structure is the basis of the model developed in care and protection legislation, which places a very strong emphasis on the primary family. This is reflected in the objects and principles, set out at length in the opening sections of the Act, and the way in which they are translated into specific provisions.

Objects and Principles of the Act

The Objects of the Act set out in Section 4 strongly emphasise assistance to parents, families, whanau, hapu, iwi and family groups to discharge their responsibilities to prevent children suffering harm, ill treatment, abuse, neglect or deprivation and to provide direct assistance to children towards those ends.

The general principles set out in Section 5 require that wherever possible a child's family, whanau, hapu, iwi and family group should participate in the making of decisions affecting that child and wherever possible regard must be had to their views. There is the further principle that wherever possible the relationship between a child and his or her family, whanau, hapu, iwi and family group should be maintained and strengthened. Nevertheless it is a requirement that decisions must be considered in relation to the welfare of the child and the stability of the child's family, whanau, hapu, iwi and family group.

The Act throughout uses that terminology - family, whanau, hapu, iwi and family group - all of which are encompassed within the term "family" which I will use for the sake of convenience.

The general principles in Section 5 must be reconciled in care and protection cases with further principles set out in Section 13, including the principle that the primary role in caring for and protecting a child lies with the child's family. Consequently the support, assistance and protection should be provided to the family or family group themselves, and intervention into family life should be the minimum necessary to ensure a child's safety and protection.

"That the child should be allowed to continue living in association with the family and that the child should be removed only if there is a serious risk of harm to the child, and then wherever practicable that the child be returned to the family and in any event maintain links with the family".

Section 6 of the Act, which sets out the paramountcy principle, was strengthened in 1994 to make it clear that "the welfare and interests of the child or young person shall be the first and paramount consideration." This has been the approach consistently taken by the Family Court throughout the history of the legislation. Where other objects and principles cannot be reconciled with it, the welfare principle is overriding.

Other Policy Considerations

This legislation may be seen as a reaction to deficiencies in earlier care and protection systems. It recognises the problems associated with removing children from their homes and placing them in residences that in the past have failed to adequately provide for their care and wellbeing, and too often estranging them from their family, community and culture (Trapski's Family Law Volume One NT.2.01).

Against that background the remarks of Elias J, now Chief Justice for New Zealand, in CMP v DJWS (1996) 15 FRNZ 40 are pertinent where she said:

"Fundamental to the policy implemented by the Act are the Judgments of the legislature that the well-being of children, except in exceptional circumstances, lies with their families and that where intervention is required it is the family itself which is best placed to make decisions about children.....

The family itself is therefore an important object of concern under the Act subject to the paramountcy provided by Section 6 for the welfare and interests of the child".

The shaping of this legislation was also influenced by commitments under the Treaty of Waitangi, which is now regarded as the founding document of New Zealand as a nation. It was a Treaty entered into between the Maori people and Queen Victoria in 1840. In a 1997 case, BP v DGSW [1997] NZFLR 642, a Full Court of the High Court said:

"We take the view that the familial organisation of one of the peoples a party to the Treaty, must be seen as one of the taonga, [treasure] the preservation of which is contemplated. Accordingly we take the view that all Acts dealing with the status, future and control of children are to be interpreted as coloured by the principles of the Treaty of Waitangi".

Viewed in an international context there are some striking parallels between the principles of this legislation and the UN Convention on the Rights of the Child. Take for example the paragraph in the preamble of the Convention, which refers to:

"The family as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, [which] should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community......"

Article 18 of the Convention refers to the primary responsibility of parents for the upbringing and development of their children. There is also a requirement that State parties render appropriate assistance to parents in the performance of their child rearing responsibilities, thus ensuring the development of institutions, facilities and services for the care of children.

The Scheme of the Act - Care and Protection / Youth Offending

The Children Young Persons and Their Families Act is lengthy with 456 sections covering the care and protection of children within the jurisdiction of the Family Court. A specialist Youth Court deals with youth offending. This jurisdiction covers children (up to 14 years of age) and young persons (up to 17 years of age), referred to here using the global term "children".

The Family Group Conference - Primary Decision Making Process

In both parts of the Act (care and protection and youth justice), the Family Group Conference (FGC) is an essential part of the decision making process. In Family Court cases the FGC is an essential statutory step to be taken before the Family Court has jurisdiction to intervene at all, save in emergency situations where a child must be uplifted urgently.

A Family Group Conference is often convened before any application to the Family Court is contemplated. Its recommendations and decisions may lead to an agreed outcome without the need to involve the Court at all. Often the agreed outcome will be to make an application to the Court with a plan setting out the specific orders which are sought by consent.

When an application is made to the Court prior to a Family Group Conference being held, the Court will appoint a lawyer to represent the child involved (Counsel for Child). The Court must then wait for the outcome of the FGC before taking further action.

The Family Group Conference is convened by an official called a Care and Protection Co-ordinator. The Co-ordinator consults with the family as to who should attend the Conference, as well as finalising details such as the date and time of the conference.

Who May Attend

Persons entitled to attend include the child or young person, unless it would not be in their interests to do so, or undesirable for some other reason, or if the child is too young to understand what the Conference is about.

Parents and family members may attend, subject to an overriding discretion in the Co-ordinator to exclude someone whose presence would not be in the child's interests.

Any lawyer appointed to represent the child may also attend, together with a representative from the Agency that made the notification that the child may be in need of care and protection. This representative will often be a Social Worker or Police Officer.

Purpose of the Conference - Effective Decision Making

The purpose of the Conference is to consider whether or not the child is in need of care and protection and if so to make decisions and recommendations and formulate plans as to what should be done.

Where agreement is reached that the child is in need of care and protection, decisions and recommendations of the Conference become effective in determining the subsequent course of action to be followed. CYFS and the Police are each required to give effect to those decisions and recommendations unless it would be impracticable to do so, or unless the decisions fall outside the care and protection principles set out in the preliminary sections of the Act (see 'Objects and Principles' above).

Proceedings of the FGC are privileged and communications within the Conference are inadmissible in any Court proceedings. However, the Department is required to keep records of decisions.

Where no agreement is reached the matter is referred to a Police Officer or Social Worker, who may then commence Court proceedings if that is an appropriate course of action. Where Court proceedings have already been started and no agreement is reached, the matter is likely to proceed on a defended basis in the Family Court.

Applications to the Court

The initial application to the Family Court commencing proceedings is an application for a declaration that a child is in need of care and protection on one of the nine grounds set out in Section 14 of the Act.

The main grounds relied on are in paragraphs (a) and (b) as follows:

"(a) [That] the child or young person is being or is likely to be harmed (whether physically or emotionally or sexually), ill-treated, abused, or seriously deprived; or

(b) The child's or young person's development or physical or mental or emotional well-being is being, or is likely to be, impaired or neglected and that impairment or neglect, is, or is likely to be, serious and avoidable."

Where the application follows a Family Group Conference in which agreement was reached, the declaration will be made by consent.

Nevertheless the Court must not make a declaration unless it is satisfied

"that it is not practicable or appropriate to provide care and protection for the child or young person by any other means, including the implementation of any decision, recommendation or plan made or formulated by a Family Group Conference convened in relation to that child or young person".

This is a practical application of the principle of minimal intervention referred to earlier.

Before considering an application for a declaration the Court may order counselling for the child or young person and / or parents or other persons having care of the child or young person.

Dispositive Orders

The dispositive orders which the Court may make reflect again the central role of family, the supportive role of the State and the management role of the Court.

The first of these orders is a Services order. This order directs the Department (or any other person or organisation) to provide certain, specified services and assistance to the parent or guardian or person having care of the child, or to the child him or herself.

A more intrusive order is the Support order, which may be made against the Department or against another person or organisation. This order directs the provision of, or co-ordination of the provision of, services and resources (including financial services and resources) from the community or otherwise, as will ensure that appropriate care, protection and control are provided to, or exercised over the child or young person. It is also the duty of the person or organisation, directed pursuant to a Support order, to monitor the standard of care, protection and control which is exercised with respect to the child concerned.

The Court may also issue a Restraining order, restraining a named person from residing with the child or restraining conduct that would be adverse to the interests of the child. This is a very direct protective measure for the child.

The Court also has the power to make custody orders in favour of a wide range of people. In practice the order is frequently made in favour of the Chief Executive of the Department who will then place the child in a suitable family environment, perhaps with a member of the extended family.

A guardianship or additional guardianship order, giving authority to participate in the making of important decisions concerning the child's well being, often accompanies a custody order.

Reviews

The management role of the Court is further emphasised by the provision for periodic reviews. These must occur at least every six months for children up to the age of seven and annually for children over that age. At the review the Court is updated on the child's progress and has the opportunity to vary or discharge existing orders and to make new orders.

To Summarise

In the practical application of its objects and principles, the Children, Young Persons and Their Families Act is strongly supportive of ongoing familial responsibility for children who are in need of care and protection. Effective decision making authority is vested in the family as a statutory step in any legal proceedings. The State is given a strong supportive role by way of services and supervision provided to the family. These initiatives are taken outside the Court itself, and removal of children is a last resort.

Domestic Violence Act 1995

The Domestic Violence Act 1995 has a completely different background. It is the culmination of a growing Government and community awareness and concern about domestic violence as a serious social issue in New Zealand.

The Women's Refuge movement, the change in Police policy concerning domestic assaults and tougher penalties imposed by the Courts all influenced the change of social climate.

New legislation was planned to strengthen protection against domestic violence. This had been the object of earlier legislation, namely the Domestic Protection Act 1982.

Some additional measures were included in the new Bill following the Report of a retired Chief Justice who investigated a homicide / suicide where a father had killed his three daughters and himself by carbon monoxide poisoning.

Unlike the Children, Young Persons and Their Families Act 1989, the Domestic Violence Act is strongly interventionist. It is directed at providing immediate protection against domestic violence by way of a Protection Order, which may be made initially without notice where delay would give rise to a risk of harm or undue hardship.

The grounds for an Order are past acts of violence within a wide range of family and extended family relationships, coupled with a need for future protection. "Violence" is broadly defined to include physical, sexual and psychological abuse. The Court is required to consider the seriousness of the violence arising from a course or pattern of conduct and the impact of violence on the adult victims and children concerned, ie their subjective reaction to it.

A Protection Order in favour of a parent extends to children in the household. A child may also apply for a Protection Order through a representative. Violence against a parent in the presence or hearing of a child amounts to violence against that child.

A Protection Order prevents the person against whom the order has been made from making contact with the protected person(s) and can effectively sever a parent's contact with a child.

When the Domestic Violence Act was passed, the guardianship legislation (which deals with disputes over custody and access, i.e. residence and contact disputes) was amended to limit the Court's jurisdiction in making supervised access or contact orders. The Court cannot make such orders until such time as it is satisfied that more liberal contact with a parent would not pose a risk to the safety of the child concerned. The Court's decision takes into account a number of factors including the seriousness and frequency of the violence; how long ago the violent conduct occurred; its impact on the child; steps taken to prevent further violence; and the wishes of the other parent and the child him or herself.

This legislation is also remedial to the extent that it provides State funded programmes for respondents, adult victims and children. Its interventionist approach is in sharp contrast with the empowering, family-centred provisions of the Children, Young Persons and Their Families Act. The two pieces of legislation were developed in different social climates and respond to different values and influences. The domestic violence legislation clearly places the safety of the child ahead of maintaining family relationships.

Care and Protection of Children - Contrasting Approaches

The Children, Young Persons and Their Families Act 1989 and the Domestic Violence Act 1995 are examples of contrasting pieces of legislation passed in response to different social pressures and needs within a six year period in one small country. The Acts embody two quite different approaches and reflect different societal expectations of Courts and the legal system.

On the one hand, the Children, Young Persons and Their Families Act shows a confidence in the ability of the family to deal with care and protection issues, supported by the State, with the legal process being managed by the Family Court, i.e. minimal intervention. Does this place reliance on the family too far ahead of care and protection of children? Put another way, can care and protection issues be adequately addressed by this process?

On the other hand, the Domestic Violence Act provides for legal intervention through Court orders, cutting across family connections and promoting children's safety ahead of family relationships. In the past the law has tended to be more passive than this. Which is the right approach?

Conclusion

These two Statutes highlight the changing environment in which Family and Youth Courts work to promote fair and realistic outcomes for parties and their children. Against a background of change and conflicting expectations of Courts there is the paramountcy principle - the single overriding principle against which all other considerations must be measured. In each case the Court must look at the individualised circumstances of the family before the Court. This is the task and challenge facing our Courts.

Judge P D Mahony
PRINCIPAL FAMILY COURT JUDGE