Interviews with Counsel
8.1 Counsel/1
C/1 is a senior and experienced practitioner of family law, with more than twenty years of experience. He does a lot of work as Counsel for the Child, and a significant proportion of his clients are Maori. In his view the difficulties experienced in working with the Guardianship Act arise from differing world views or philosophies.
In Maori terms it is a problem with the philosophy of the law of individual rights and nuclear families and not global rights and community families, and it doesn't recognise the increasing role that grandparents are now playing again. A grandparent does not have an automatic right to mokopuna unless one of the parents is dead or there are a couple of exceptions.
He suggested that the struggle to ensure that legal systems are culturally appropriate is dynamic in nature and ongoing.
.. because as soon as you arrive something is moving on again. We don't want to go back to how it used to be, we want to extract out of that the value, which creates and sustains our identity. We might all end up driving BMWs and having PhDs but we will inherently and arrogantly be Maori. So the sown seed? It actually gets stronger, that is the dynamic of change.159
C/1 considers that legislative changes should provide a means for processes that are less adversarial, and more focused on processes that will allow people to reach a resolution before things become entrenched and adversarial.
My system is simply like this - you have a problem - a domestic problem of some sort, go to the court, fill out a form and it basically says, 'we've got a problem we would like some help please'. Don't make it a form six pages long and all that nonsense. There are limited areas of dispute in the family - you could list them 1 to 5 or whatever. Get it stamped at the court, loaded into the database. It is now in the system, it triggers Counsel for the Child and a skilled person - social worker or conciliator or whatever. No one has seen a lawyer, no legal aid application, the one thing that the whole thing develops around is the paramount interests of the child. So why don't we do all that in the beginning - stand by - somebody is going to contact you.
He argues that this sort of streamlining should be accompanied by hui processes that allow people to express their feelings and achieve resolution.
Venting your spleen is important to Maori. If you don't understand that process then you don't understand the way they solve problems - it is a healing pathway. They will never get to the healing mode until they have done the spilling mode. Process is absolutely important to Maori. It is important that they have their say. Nothing worse than saying I was there and I couldn't.
C/1 is currently working on a resource for legal professionals with a view to improving their understanding of cross-cultural communication.
You go to a Maori home and you take your shoes off at the door and they say - oh this fellow is well bred. Simple things like not putting your hat on the table… Language is the first thing. Start by getting her160 name wrong .. the jarring note factor …
C/1 is also concerned about the custody and access issues arising from the interrelationship between the Guardianship Act and the Domestic Violence Act.
We have created supervised access. I am not criticising the intent of it; I am looking at the results. There is no way you can have meaningful access with a stranger in a room for one hour. My men have said to me it is ridiculous. Most lawyers will tell you they have had clients that have decided to walk away from their family obligation altogether. We've got a whole new industry.
8.2 Counsel/2
C/2 has been practicing family law almost exclusively since 1995. About 80% of her work is with Maori, with a third of that work being as Counsel for Child.
C/2 does not believe that current legislation makes adequate provision for whanau participation in court processes. She is a strong advocate for legislative change that will allow participation by the wider whanau, particularly grandparents.
I think some of the difficulties are that when you go to court there are only two parents named on the papers, and they are the only two under law entitled to have input ... and that is really difficult where the person has a large whanau base, really the client is part of a bigger environment … I am a big supporter of changing the Act to allow grandparents to apply for access. And at the moment the only way you can do that is by making access a condition of the custody order. That is not on considering a lot of moko are raised by their grandparents or have a strong link to them.
This wider participation should in her view include extended opportunities for whanau hui and mediation processes to occur and be recognised in the legislation. This should be accompanied by the use of language that is less adversarial and ownership focused.
The Family Group Conference is fantastic because it allows families to talk, but there is no similar provision under the Guardianship Act. It means that whanau are getting involved in the decisions that are made.
C/2 also suggested that the physical environment has an effect on the parties' level of comfort.
If we look at a contrast between Manukau where the desks are kind of in a crescent, and Auckland where the desks are in a row, I think having a crescent is better because people are more able to feel they are part of the proceedings. The difficulty for some Maori clients coming to court is that there are not enough meeting rooms - and because they come in with their whanau you've got members of both whanau there - sometimes it is good, but sometimes it is a huge strain.
C/2 expressed concern about the minimal level of training for Counsel for the Child in working safely and effectively with Maori.
You know you go to the door and you take your shoes off before you go inside, little things like that are really helpful. To understand that a child has to go to a tangi and that may mean a few days off school... Some whanau use a lot of Maori words, and it interrupts the flow if someone has to say - what does that mean? I went to a house and there were mattresses on the floor and one of the lawyers said 'they are sleeping on the floor! '. I said - on mattresses on the floor - there are a lot of people in the house at the moment and this is where they sleep. She said 'well isn't there anything wrong with it? ' And I said - no.
C/2 also believes that there should be an extension of counselling and support programmes for children and parents. Having seen some good outcomes from programmes provided under the domestic violence legislation she would like to see access to programmes broadened to include situations where there is no protection order. She would like to see partnering programmes offered, as the coincidence of poverty, low educational levels and lack of parenting skills is a regular pattern for many of her Maori clients.
8.3 Counsel/3
C/3 has been practicing law for eight years, and Family Court work makes up 70-80% of his work. He has been doing Counsel for the Child work for about four years, and estimates that around 60% of his clientele are Maori.
In C/3's view, Maori experience of Family Court processes is directly related to the quality of legal representation parties receive.
I have seen the court work well (for Maori) where the parties are represented well. Where other family members who have a significant involvement with the children are allowed and encouraged to provide good information. The idea of family conferencing as a vehicle is really useful. If you get that happy combination of things working well, given there are a lot of people involved, then that is just great. And in fact they are healing times for families but also really optimistic times for the future.
He is strongly of the view that matters before the Family Court should be focused on the needs of the children, and that counsel do not always maintain this focus.
C/3 suggested that in many instances whanau are reluctant to become involved in court processes, and that this may be due to other negative experiences within the legal system. C/3 emphasised the importance of demonstrating respect for Maori engaging in court processes through things as basic as correct pronunciation of names by court staff.
I have seen people sitting there saying 'I wonder who that is' (when court staff call out names) - and they have missed their appointment - they have missed going in. Just basic respect for people and their culture, and the integrity of whanau.
He did not consider that finance was a barrier for parents, but that it was problematic for other whanau members who currently are not seen as parties under the Guardianship Act 1968.
The matters that I deal with, the people are likely to be supported by Legal Aid - there seems to be the cycle of disadvantage, poverty, poor parenting… There was an older woman in my office the other day who was looking after the children (nieces and nephews) and the parents want the children back and she said no. She is having to go through all sorts of financial hardship to carry that decision on.
C/3 is an advocate of well-managed whanau hui, and believes that it is appropriate for Iwi Social Services to be involved in this process, and in ongoing monitoring of hui outcomes. He believes that any review in the legislation should consider their role.
Those that operate well should be contracted - although at the moment they find themselves at a disadvantage if they go against CYFS. It probably comes down to a political movement - that will no doubt be the driving force. So the law would allow the iwi to have a main role and CYFS would fund it. I know they are looking at ways of negotiating and establishing those relationships and many judges or courts feel uncomfortable with what they don't know, and judges can be quite an unknown factor.
C/3 also emphasised the need for good ongoing training for legal professionals, both in terms of working safely with Maori clients and in child-focused practice.
8.4 Counsel/4
C/4 was interviewed for the pilot study. She practices exclusively in the Family Court, and has done so for three years. She is Maori with children of her own. A significant proportion of her client base is Maori.
Counsel identified several issues of concern in the way Maori whanau experience Family Court processes and professionals currently. The first of these concerns was the actual courtroom setting and processes, which she described as follows:
I don't think the system is particularly effective for Maori. It's too hard. It's very impersonal; it's very clinical. In the family arena it's supposed to be a little more relaxed, but I think, and it may be more to do with the judiciary, I'm not sure, but they're much more inclined to treat it like a normal courtroom, where you must follow normal protocols - which is fine I guess when you're dealing with the lawyers. But when you've got clients coming through the door who may rarely come to town, let alone into a courtroom - it's very hard for them to come to grips with.
She expressed considerable dissatisfaction with the way the majority of judges and counsel related to Maori, citing the Law Commission's report on Maori women's experiences of court processes.161 She identified issues such as correct pronunciation of Maori names and words, and a lack of sensitivity to/or awareness of Maori styles of communication. She felt that her clients for the most part feel intimidated and ill at ease. The result of this for clients is:
They're either whakama or they're really angry, or a combination of both…
This she believes is accompanied by a more fundamental lack of understanding of the life experiences of Maori whanau. She was particularly concerned about this in relation to the pivotal role held by Counsel for the Child. She reflected on her upbringing, and the shared whanau care that her own children have, and said that many of her Pakeha colleagues find the idea of shared whanau care difficult to understand. She was extremely concerned that there was no Maori Counsel for the Child working in her court district.
She was clear that the implementation of the Guardianship Act 1968 could be damaging for extended whanau, particularly in terms of the relationship between grandparents and their mokopuna.
I've had grandparents come to me and say I can't see my mokos anymore, I want to see them, I've had contact with them and looked after them for years and now they're gone. And it's really hard because you have to tell them - you have no rights, unless you can hook it into a custody and access order that belongs to your child. That's really difficult.
Counsel was aware of some of the suggested changes to the Guardianship Act 1968, such as changes in terminology for custody, guardianship and access. She was not convinced that such changes would improve or alter the experiences of Maori within the Family Court. She believed that the language would still be a barrier for many Maori (and non-Maori). She argues that fundamental changes need to occur in the way that the Family Court operates at an interpersonal level. She also believed that any changes to the legislation needed to be accompanied by effective community education.
I don't think that changing the Act will change much for Maori - it is still going to depend a lot on your ability to relate to your lawyer, or more importantly the ability for your lawyer to relate to you. It doesn't matter what you do to it (the Act) if the system is still cold and hard and there is no education around it or human dimension given to it.. it doesn't matter what you do … They're only going to sugar-coat the wording…
Increasing opportunities for whanau participation would also be of minimal value in her view unless the Family Court is significantly modified to reduce formality, and to incorporate more culturally-appropriate practices. She was concerned that this was unlikely to happen, as she believed that many judges are of the view that the Family Court would lose status as a 'real court' if processes were relaxed or modified.
8.5 Summary
The interviews with counsel indicated a number of areas that are problematic for Maori engaging with the Family Court over guardianship, custody and access matters. The interviews provide information regarding possible areas for legislative change. They also highlight the importance of the quality of communication and professionalism of those working in Family Court settings.
Footnotes
159 This is a reference to the whakatauki - E kore au e ngaro, te kakano i ruiruia mai i Rangiatea. I will never be lost, the seed was sown in Rangiatea.
160 The client's name.
161 See Footnote 2.
