Introduction
The review of the Guardianship Act 1968 takes place in a context in which the diversity of family types and diversity of values regarding families and relationships are increasingly being recognised and reflected in legislation and policy. There have also been significant changes in the way the relationship between Maori and the Crown is defined in terms of the Treaty since 1968. The Guardianship Act 1968 has been described as one of several family law statutes that reflected the assimilationist policies of the period.2 The Children, Young Persons, and Their Families Act 1989, in contrast, makes specific provision for whanau, hapu and iwi involvement in decision-making about the lives of children and young people. Puao-Te-Ata-Tu, a major report published by the Department of Social Welfare in 1986 had a significant influence on the way the Children, Young Persons, and Their Families Act 1989 was developed. While the focus of the report was developing ways of working within DSW that would be responsive to Maori needs, it was also an important means of gathering information about Maori views regarding whanau, and matters such as guardianship and custody.
The focus of this particular piece of research is the experiences of Maori whanau and individuals when they engage with the Family Court over matters of guardianship, custody and access. While the Guardianship Act 1968 is one path to this engagement, other pieces of legislation, notably the Children, Young Persons, and Their Families Act 1989, and the Domestic Violence Act 1995 can also result in Family Court involvement over these matters. The Guardianship Act 1968 sets the legal rules for guardianship, custody and access in respect of guardianship, custody and access.
Under this Act, guardianship3 means:
- The custody of a child or young person; and
- The right of control over the upbringing of the child or young person. "Upbringing" is defined to include education and religion. It also includes things such as change of name and major health decisions.
Custody is defined as the right to possession and care of a child. This day-to-day care of the child is usually the right of both parents, but if they separate the Family Court can grant a custody order in favour of just one of them if necessary. A parent, step-parent or guardian may apply to be granted custody. The term 'access' is only relevant where custody has been given to one parent. In this context, 'access' refers to the arrangements for the child or young person to spend time with the non-custodial parent.
Under the Children, Young Persons, and Their Families Act 1989, matters of guardianship, custody and access may become relevant when there are issues related to the care and protection of the child or young person. If it is determined that the natural parents cannot adequately care for or protect the child or young person, the Family Court may grant guardianship and/or custody to another person or persons.
The Object of the Domestic Violence Act 1995 is:
To reduce and prevent violence in domestic relationships.4
Under the Domestic Violence Act 1995, the definition of violence includes causing or allowing a child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a domestic relationship.5 Under the Guardianship Act, if the Family Court accepts that a parent has been violent against anyone in the immediate family, then the court will not grant custody or unsupervised access to the child unless the court is satisfied that the child or young person will be safe.
In seeking the perspectives of Maori regarding guardianship, custody and access, the diversity of Maori experience and whanau type must be considered. The interviews conducted reflect this diversity of experience and whanau type. Those who took part in the interview process came from both large urban settings and remote rural locations. Their involvement with the Family Court over matters of guardianship, custody and access was initiated in a number of ways, and participants include aunts, mothers, fathers, grandparents and whangai parents. Some were able to clearly articulate the centrality of whakapapa and whanaungatanga to their beliefs and decisions regarding the care of tamariki. Others were isolated from their own extended whanau, and had little contact with hapu or marae.
In recognition of this diversity of experience, and in order to provide a context in which Maori concepts of caring for children are clearly articulated, Ani Mikaere has conducted a Literature Review.6 The Literature Review begins with a brief summary of a Maori world view before moving to a discussion of key principles underlying Maori child-raising. The principles identified are:
- The significance of whakapapa;
- Children belong to whanau, hapu and iwi;
- Rights and responsibilities for children are shared;
- Children have rights and responsibilities to their whanau.
These principles have also clearly emerged in the participant interviews, and provide a context for understanding why particular aspects of the current legislation and court procedures are difficult for whanau to understand and cope with. It is also clear that while many whanau are cognizant of their ongoing kinship obligations, that these obligations are at times a source of stress and concern, particularly where whanau lack financial resources.
While the information needs outlined below set the general parameters for the dialogue with participants, the participants themselves had their own ideas about what the salient features of their experience were. The case profiles are a means of allowing the voices of those participants to be heard, and include a number of verbatim statements from them. Likewise, counsel and the Maori social services professionals interviewed had clear personal views about what constitute the most significant barriers to effective Maori participation in Family Court, and how these barriers can be overcome, if at all.
The interviews are followed by a discussion of the issues and themes that emerged in the course of the interviews. The first part of this discussion focuses on the links between the principles identified in the Literature Review and the experiences and views described by those who took part in the research. This includes suggestions of ways that these principles and Maori perspectives could be further recognised in the Family Court. While there is a necessary focus on guardianship, custody and access, the need for consistency across Family Court legislation is noted. Access to justice issues raised in the course of the research are also discussed in this section.
Footnotes
2 Justice: The Experiences of Maori Women, Law Commission, April 1999, p24.
3 Definitions of guardianship, custody and access here are taken from: Responsibilities for Children Especially When Parents Part, Ministry of Justice Discussion Paper, August 2000.
4 See S5(1) Domestic Violence Act 1995.
5 See S3(3)(a)(b) Domestic Violence Act 1995.
6 The researchers and advisory group welcomed John Clarke's recommendation that the research be supported by a clearly-articulated description of the traditional values and beliefs pertaining to tamariki-mokopuna and their care.
