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Fit For Purpose – Getting Family Law Right

Hon Steve Maharey Speech Notes

Address to Social Policy Forum 2000, Children's Rights and Families. Victoria University of Wellington Law School.

Government Commitment to Families

Many Governments insist that the family is the most important social unit but they have given little practical or financial support to their assertion.

This Government came into power with a commitment to a real investment in families.

When the first Labour Government established the welfare state its fundamental objective was to protect people against predictable crises. And it did – then.

Now our task is to create a welfare state that can help people to negotiate the unpredictable; which seems to be one of the defining characteristics of life in the 21st Century.

And that includes the changes to the traditional family structures – and the steady growth in one-parent and reconstituted families.

You are gathered here today with a common concern that was undreamed of when Michael Joseph Savage was Prime Minister. You are here because you are concerned about the New Zealand children who are growing up without the special support and guidance of a loving father.

I am here to reiterate the Government commitment to your concerns – to ensure that legislation and policy are relevant to the changed and changing circumstances of families, and to promote the importance of the roles of mother and fatherhood.

Government Goals

Government goals include:

 Enhancing the wellbeing of children and young people, maximising their opportunities, recognising their rights and interests;

 Support parents and others to carry out their responsibilities to their children;

 Providing a policy and legal framework which allows for the diversity of family types and cultural beliefs and practices; and

 Providing a policy and legal framework which facilitates the range of ways in which parents and others carry out their responsibilities to their children

Our view is that current New Zealand child and family legislation does not necessarily best serve the implementation of these goals. Nor is it appropriate to the changing nature of family structures or the cultural realities of New Zealand’s diverse population.

The paradigms underpinning the Adoption and Guardianship Acts for example are largely those of European society operating within the dominant social construct of a two-parent family model.

Legislation saw demand for adoption and guardianship resolution as arising from exceptional circumstances rather than as a normal expression of changing family dynamics and social mobility. Accessing these two pieces of legislation was seen to represent a relatively atypical situation for adults.

This situation differs from the current and projected realities of life for the families of many New Zealand children now and in the future. There is some urgency in developing a more flexible legislative framework, one that fits the current and projected social reality and a culturally diverse society.

Apart from anything else there is no consistent statement of Government’s commitment to the care of children evident in the current legislation.

The time has come to look at the current functions of the Adoption Act, the Guardianship Act, the Child Support Act, and the Family Proceedings Act with the aim of establishing an integrated body of law relating to the care, custody and guardianship of children.

Amendment of Guardianship Act

The review of the Guardianship Act is part of this overall child and family policy.

Our current Guardianship Act was passed over 30 years ago. It no longer meets New Zealand families’ needs. It certainly does not meet the needs of fathers who become separated from their children because their relationship with the mother of their children has disintegrated. Neither does it meet the needs of children who want, need - and deserve to develop with the friendship and guidance of their father.

The evidence both here and overseas is overwhelming – that children deprived of loving fathers are disadvantaged children, whatever their socio-economic circumstances.

This Government is committed to change things for children in New Zealand - to ensure that there is no unjustified impediment to continuing family involvement by fathers, or any member of a child’s extended family, if the primary relationship between their father and mother fails.

Discussion Paper

We released a discussion paper on guardianship, custody and access arrangements in the middle of August. It looks at the Government’s goals for family policy and raises a number of questions about what we would like from our law on guardianship, custody and access for our children and young people.

Since you are clearly interested enough to attend this forum I am asking you now to please read the discussion paper and to submit your thoughts on the issues that the paper raises.

Government wants:

to ensure that children receive adequate and proper parenting – so that they are able to achieve their full potential;

to ensure that both parents are able to fulfil their responsibilities to children; and

to recognise in law and to maintain the important relationships that children establish within their wider family/whanau.
We need to know what you think should be the basic goals of our laws about guardianship, custody and access.

There are several issues in the current law which we definitely need to look at, and to change. They are:

 The language – which as it stands, sounds like property law.

Custody is defined as “the right to possession and care” of a child. Guardianship includes “the right of control”. This is not the language of parenting. It is dehumanising – and we all know that the employment of dehumanising language is one of the subtlest but most powerful weapons of war.

So it is not helpful to use this kind of “winning” and “losing” language when relationships are already fraught – and where children are involved. The language must be changed and we would like your thoughts on this.

 The current emphasis on parents’ rights - Most of the current legislation focuses on the custody and access rights of the parents.

We think that a refocus on the rights of the children might clear the thinking of adults who are self-absorbed in the hurt and misery of their relationship breakdown. This is a situation where people can forget the consequences for the children in their determination to score points against their ex-partner.

We want to change the law to ensure that the best interests of the children are the prime focus.

 The imbalance of parental rights and responsibilities – while the law says that both parents (usually) have equal rights and responsibilities regarding major decisions for their children, the reality is that the children usually live with one of the parents for most of the time.

In this situation it is often easy for the custodial parent to plead pragmatism – “you weren’t available” – “I had to make a decision today” – to exclude the other parent from important decision-making on behalf of the children.

 Recognition of wider family/whanau and cultural diversity – often, under the current legislation, the break-up of the parental relationship, and the surrounding acrimony, can deprive a child of contact with other family members.

Yet the relationships that children forge with their favourite aunts and uncles are extremely important for the long-term welfare of a child.

Aunts and uncles are often the loved and trusted adults in a child’s life who can bring a more objective view to a child’s circumstances in times of strife.

In times of difficulty a child may feel more comfortable about telling an aunt or uncle what is wrong, or how they feel, than they will telling their Mum or Dad.

I know that one of the first requests that experienced Child, Youth and Family youth justice co-ordinators make of families illustrates this. If the young miscreant is being sullen and difficult, the co-ordinator will ask for their favourite auntie (or uncle) as the case may be, to be brought in. More often than not the young person will open up to that person.

Aunts and uncles can often exert a positive and guiding influence that parents and grandparents may be too emotionally close to manage when the going gets rough with children.

I think I can safely say that this is the situation whatever the culture of the child. It becomes doubly important, however, to Maori and Pacific families wherein the extended family is central to the child’s nurture.

The current legislation has only very limited provision for access rights to be given to members of the wider family whanau - and it must be changed to enable our children to maintain their own contacts with the significant adults in their lives.

Legislative options

There are some interesting ideas floating around and we want your input.

For example, the Law Commission Report on adoption law, which we are reviewing, has recommended a care of Children Act stating the responsibilities and rights of parenthood. The concept has been scoffed at by some – the headlines were of the 'Rules For Parenting!' variety. Opposition party members have remarked that the Commission report is driven by “political correctness and ideology” – because the report recommends that government remove the current ban on allowing single men to adopt female children, and allowing de facto and same sex couples to adopt.

This is obfuscation. The Law Commission Report clearly states that the welfare and interests of the child will be the main focus when considering any issue under the proposed legislation.

I think that we all have a lot to gain by putting in some overarching legislation like the proposed Care of Children Act. The current provisions for the care, custody and guardianship of children are scattered through five different pieces of legislation developed over the past 45 years.

The Children, Young Persons, and Their Families Act is pioneering, family-focussed legislation which has been studied, and copied in numerous other countries. But the Guardianship Act 1968, the Adoption Act 1955, the Child Support Act 1991 and the Family Proceedings Act 1980 do not recognise the diversity of New Zealand families or the role played by members of the wide family group in the lives of children.

I think also that the United Nations Convention on the Rights of the Child (UNCROC) which we ratified in 1993 is an appropriate foundation for any legislative relevant to children. The government is also committed to supporting Māori communities to develop their own policy, planning and programme delivery capacities. Only the Children, Young Persons, and Their Families Act provides a clear framework for this development. Other current legislation does not.

Any new child and family legislation needs to be developed to guide all parties in a way that is acceptable to Maori.

Questions Raised in the Discussion Paper

If you have not already done so, get hold of copies of the Law Commission report and the discussion paper on the Review of the Guardianship Act. The discussion paper is called Responsibilities for Children –Especially When Parents Part – The Laws About Guardianship, Custody and Access. You can download it from the Ministry of Justice website or get a copy by contacting Kathy Surgeoner at the Ministry of Justice, P O Box 180, Wellington.

I recommend that you do get a copy because it contains questions about the various issues I have presented here and will help you to put some structure around your thoughts on these matters.

The Family Court

The discussion paper also covers some of the issues about current procedures in the Family Court – the processes which are currently used for resolving disputes between parents and for enforcing the Family Court’s custody and access orders.

As with the current Guardianship Act, the procedures in the Family Court do - despite the very best efforts of the Judges and the Court staff - amount to a bit of a “contest”. I am sure that the Family Court judges would agree that it is not uncommon for the cleverest and most determined of the two parties, or their lawyers, before the Court to quote “win” for all the wrong reasons.

Again I am sure that many of you here would like to see changes in the Family Proceedings Act. The paper traverses all of the obvious issues:
The difficulties parents may have with the Court appointed specialists; the social workers, the psychologists, the counsel for child;

The confidentiality of all proceedings in the Family Court which precludes wider public examination of the issues that the Court must rule on;

The delays, and the considerable costs which can be a daunting impediment for many parents; and

The problems enforcing Court orders. Most people who have been through the Family Court would be familiar with this one, particularly in relation to access. If one parent does not co-operate it can be extremely difficult for the other parent to have their rights enforced. And, of course, the process of this can often further exacerbate the relationship tensions– usually at the expense of the children.

Again the discussion paper poses questions to assist you to clarify and compile your views.

Please take the time to read the paper, think about the issues, and send your views in. The Government wants the new legislation to be a clear reflection of our New Zealand family values and the diversity of our culture at the beginning of the new millennium. We can only achieve that with your input.

Thank you.


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