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Dalziel Speech: Child/Youth Law Policy Conference

Lianne Dalziel Speech: Child/Youth Law & Policy Conference

Thank you for inviting me to present some thoughts to this important conference focussing as it does on the laws that relate to children and young people. I have been asked to do so in my capacity as Associate Minister of Justice with responsibility for family law. The relevant law reform issues that I am working on at the moment include:

the Care of Children Bill, which is currently before the Justice & Electoral Select Committee a Supplementary Order Paper to the Human Assisted Reproductive Technology Bill, which is currently before the Health Select Committee, and Adoption law reform proposals, which have not yet been referred to Cabinet.

I thought that I would begin with a few thoughts on what these reforms have in common with each other and why it is so important that the law is updated.

The common feature that stands out for me is that laws governing these areas should have the rights of children as their central focus, however historically they have been primarily focussed on the needs of adults. Guardianship laws favour parental rights and adoption laws have traditionally allowed a child’s identity to be legally rather than genetically defined. I guess the first significant departure from this approach occurred with the passage of the Adult Adoption Information Act, based on solid evidence that the secrecy surrounding closed adoptions was not always in the best interests of adopted children, nor birth parents.

It is surprising in this context that anonymous donor practices for assisted human reproductive procedures could arise and gain acceptance. If adoption secrets were potentially damaging, what about donors you could never trace even if you wanted to?

The reason that this could occur is that the starting point was not the child – it was the infertile adult. Promising anonymity to donors was designed to ensure that no legal liability or personal responsibility could attach to the act of donation. Donors were helping childless couples have a family – not providing half the genetic make-up of a child.

It is this approach that is my driver for reform and why I believe that each of these laws should be child centred. The law must as the paramount consideration protect and promote the best interests and welfare of the child.

There are those who state that ‘research shows’ that the best interests and welfare of the child are served by being brought up in a household where Mum and Dad are and remain married to each other. The expression “research shows” is akin to the expression ‘it’s a well-known fact’. However, it is a persuasive context for those who feel uncomfortable about the way society has changed since they were young.

There are those who seek to both capture and exploit that sense of disquiet or unease for political reasons. They say that any legislation that acknowledges the increasingly diverse form of family arrangements that exist in fact, represents an attack on the traditional family. It is not. It merely recognises that, for better or for worse, families have changed.

It is a well-known fact that rugby and netball are the ideal games for becoming NZ sporting success stories. No-one would argue that there should be no rules for anyone playing any other sport.

It is just as ridiculous to approach the re-write of guardianship laws that are now 35 years old, from the perspective of someone’s definition of the ‘ideal’ family, when it is about the care of the children of a relationship between adults that has ended. The ‘ideal’ family, in this context, does not need guardianship legislation, because the parents are together, for better or for worse, until death do them part.

If we begin from the perspective of the child, then it is whom they regard as their parents that matters, and it would be wrong to fail to provide for the protection of children whose parents do not match that ‘ideal’. The Care of Children Bill

The Care of Children Bill is now before the select committee and the interest has been reasonably high with almost 300 submissions received. Unfortunately, some of the submissions have focussed on a somewhat inept drafting shorthand that I have already said will be removed from the Bill. Those who chose to make political mileage out of this knew perfectly well that clause 17(2) didn’t mean that lesbians were fathers. As a result some submitters lost an opportunity to talk about the real issues that this Bill seeks to address, for example replacing the language of custody and access orders with parenting orders that provide for day to day care and contact. I admit some frustration at the trivialisation of such important reform.

That being said I have been pleased to see many positive proposals emerge, and I am looking forward to the Select Committee report. One example is whether the Bill could be improved by including a statement of principles that would guide decision-making.

Another question that has arisen is why, given the focus on the children, are proceedings issued in the name of the parents? Why do we have Smith v Smith instead of In the Matter of the Smith Children? I think that is a good point and worthy of consideration.

One of the issues that was expected to arise in the context of the Bill is the concept of shared parenting. Unfortunately it means different things to different people. I still can’t get past the view that a shared parenting order is an oxymoron. How can sharing be ordered? Sharing requires co-operation. It can only occur by agreement. I believe that two parents sharing the responsibility for raising their children beyond the breakdown of their own relationship, setting aside all personal animosity and putting the needs of the children ahead of their own needs must be in the best interests and welfare of the children.

In a meeting I held in my own electorate on the subject, the point was raised that you could have parents sharing the children in terms of living arrangements, but if this was not organised on an open and co-operative basis, you could end up with ‘parallel parenting’. Stability is particularly important for children in these circumstances and parents must be made aware of the risks associated with different rules, different boundaries and different value systems operating in two different households. This is why I believe shared parenting arrangements must be by agreement, because they require equal commitment to the children and they require good communication between parents.

I asked the Ministry of Justice to give me a breakdown on how care of children issues are currently resolved, and this suggests that it is only in 5-6% of all cases that a defended hearing is required and orders are made. These were not recent statistics, so I would be on safe ground to say that in over 90% of cases, parents arrange for the ongoing care of their children between themselves.

It is in the minority of cases that the Family Court is required to intervene. And yet, it is in these cases that so much distress is evident. Could it be that it is the nature of the relationship breakdown and the extent of the commitment that two adults are prepared to make, (and I know it’s an old-fashioned saying), ‘for the sake of the children’ that separates these types of cases? If so, how can we possibly legislate for that?

Or could it be that one parent ‘gives in’ to the other for reasons other than the best interests and welfare of the child? Does fear of a court ruling or child support obligations or access to the DPB influence these decisions? Does the privacy surrounding Family Court proceedings reinforce perceptions of bias?

What about children being used in a ‘tug-of-war’ as weapons to punish a spouse or partner, or when children are being treated as mere chattels to be disposed of in the divvying up of the matrimonial property?

And given the impacts on children when parents do not keep to arrangements that have been agreed or imposed, are there sufficient sanctions for failing to stick to agreements or orders?

I believe the new Care of Children Bill addresses many of these issues, but only in part. The real challenge is for all of us to encourage an attitudinal shift, that does not seek to blame a court for failing to meet expectations that two adult people cannot resolve between themselves. Personally, I am confident that the stronger focus on the rights and voice of the child, the encouragement of co-operative parenting, the recognition of the diversity of family arrangements that exist, as well as the development of alternative dispute resolution and more readily understood court processes will provide a much better framework for resolving care arrangements for children. But attitudes must change before we will see a real difference.

Family Court

One of the hopes that I have is that the review of Family Court practices and procedures will assist in this change. More people have contact with the Family Court than any other court in the judicial system, and that contact usually comes at an already stressful and upsetting time. It is therefore really important that the system offers families a forum for conciliation and mediation, and that any necessary interventions are fair and timely.

That’s why in June 2001 the government asked the Law Commission to undertake a review to consider what changes would be necessary and desirable in the administration, management and procedure of the Family Court in order to facilitate the early resolution of disputes. In March this year the Commission released its final Dispute Resolution in the Family Court report containing 135 recommendations that focus on two areas.

The first looks to provide extra resources for the Court and to ensure more efficiencies in the system, and the second looks at introducing new services, including better information for clients and the piloting of programmes for parents and children, as well as conciliation and mediation services.

The government has responded favourably to the report and highlighted priority areas for action including non-judge led mediation, which we plan to pilot.

It should be the aim of Family Court dispute resolution processes to facilitate early solutions to problems, and to avoid the unnecessary escalation of disputes. If Court resources are directed towards these facilitative processes, then timely and lasting agreements between family members will hopefully result.
Human Assisted Reproductive Technology

The changes that are being promoted by the Human Assisted Reproductive Technology Bill are also based on the best interests and well-being of the children who will be born as a result of the use of the technology.

The law when passed will require that access to donor information be made available to the children born of such technology. Donors will be advised of this before donations are made. There are those who express concern that fewer donors will be willing to be involved in birth technologies, but that, in my view, is irrelevant in the context of the best interests and well-being of the child.

It is true that the right to found a family is a fundamental human right, but that does not extend to overriding the human rights of the child, which includes the right to know their genetic inheritance.

I have introduced a Supplementary Order Paper to the Bill, which is itself in the name of my colleague, Dianne Yates, and I am hopeful that the health select committee will soon be in a position to report back the Bill. Whether it proceeds as a private member’s bill or becomes a government bill will depend on how it can best be progressed. I am concerned that there is insufficient protection around children’s rights as the law stands as present and I am therefore keen to see progress.

The reform of adoption Laws
I now move on to one of our oldest family law statutes on the books- the Adoption Act 1955. Approximately 3% of the New Zealand population is adopted. If one adds two sets of parents, grandparents, siblings and half siblings, it is clear that a large proportion of New Zealand’s population has an adoption story to tell.

The Law Commission was asked in 1999 to review New Zealand’s adoption laws, and recommend whether and how they should be modified. The Commission released its report Adoption and its Alternatives in September 2000. The report contained a large number of substantive recommendations for change of adoption law and practice.

As with guardianship, many of the areas in which reforms were recommended concern matters in which the legislation no longer adequately supports or reflects contemporary family and social structures.

The Government Administration Select Committee then held an inquiry into New Zealand’s adoption laws, tabling its report in August 2001. The Committee considered the Law Commission report as part of its inquiry. Unfortunately, the Committee could not come to an agreement on the appropriate recommendations to be made.

Since 2002 an officials working group involving the Ministry of Justice, Ministry of Social Development and Child, Youth and Family has been developing a set of reform proposals.

The Adoption Act is the product of a different era. Until the mid 1970s, adoption was understood as simply the legal transfer of responsibility for a child from one set of parents (the birth parents) to another (the adoptive parents). The child acquired a new identity and set of relationships and the birth parents had no further role in the child’s life. It created a legal fiction.

Although the reasons for reform are compelling, it has not been an easy area of law reform to advance. There are many issues to work through, including the question of whether there ought to be a form of guardianship that provides the same inheritance and succession rights as adoption, but which does not extinguish legal relationships with significant others. For example, I have met grandparents, who have been devastated by the reality that, if their widowed daughter-in-law remarries and the new husband adopts the children, they have no ongoing legal relationship with their grandchildren. Not only have they lost their son, but they could also lose all contact with his children – their grandchildren.

The concept of enduring guardianship is one that I support, because it addresses security and stability for the children in a reconstituted family situation, while at the same time maintaining those significant family links, which exist in fact.

This is just one of many issues that needs to be worked through, however, again the driver is the paramountcy of the best interests and welfare of the child.

I hope to be in a position to take proposals to Cabinet next year.


Conclusion

In conclusion, it is my view that the laws and processes surrounding many aspects of family life, which often only come into play when children and families are in vulnerable and emotional circumstances, have been neglected for too long.

It seems as if they have been put in the ‘too hard basket’. Given the ridiculous over-reaction to one aspect of the Care of Children Bill perhaps it’s not so surprising it has taken this long. But that really is not good enough. We need to ensure that these laws are modernised, not only to reflect societal changes, but also to ensure that the law is re-focussed to meet the needs of children. This should be regardless of who their parents are, and regardless of the make-up of the family arrangements that they are born into or which occur during their lifetime.

That being said, the law does not provide the complete answer, because the law alone cannot change attitudes. It has struck me that the ‘best interests and welfare’ principle is only required to come into play when decisions are made under the legislation. What about from the moment a child is born? Are we only interested in educating parents about their responsibilities to their children when their relationship comes to an end, rather than emphasising those obligations at the time their children are born? How do we as a society give effect to a right that would give every child a loving, healthy, violence free upbringing, that enabled him or her to achieve their full potential in life?

It might be another old-fashioned saying, but I believe it does take a village to raise a child, and whether we have children ourselves or not, we are all responsible to ensure that the welfare and best interests of all children are protected. And I will continue to promote a law reform agenda that is child-centred and which promotes and protects children’s interests.

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