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Laila Harre On Children's Rights And Families

Hon Laila Harre Speech Notes

Address To Social Policy Forum 2000 – Children's Rights And Families
Law School
Old Government Buildings
Lambton Quay

Good morning and thank you for the invitation to take part in today's forum.

The rights of children, particularly within families, is an issue that cuts across both of my ministerial portfolios – Women's and Youth Affairs. What I hope to do today is give you some feedback on the work I have been involved in and explain how it fits into the Labour-Alliance Government's broader aims of modernising social policy in this area.

Firstly, I would like to give you some background on work the Ministry of Youth Affairs has been doing to gather submissions on the government's draft report on the United Nations Convention on the Rights of the Child, an article of which is the starting point for today's talks.

To boil it down, article 18 expressly recognises joint parental responsibilities. It states that parents have a common responsibility towards their children. Article 18 also recognises that government should be supporting and promoting the viability of joint parenting.

While looking at article 18 in isolation, it is vital that you bear in mind the key principles of the convention. UNCROC is not a checklist to be ticked off every five years. It sets out standards that we as a community should be constantly working towards achieving for children as a whole. There are four key principles that should be taken into account when considering any particular rights within the convention.

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These are:

 Non discrimination, which means the rights of the convention apply to all children without bias.

 Best interests – that in all actions concerning children the best interests of the child shall be the primary consideration.

 Right to life, survival and development – all children have an inherent right to life and state parties should ensure to the maximum extent possible the survival and development of the child.

 Views of the child – all children capable of forming their own views have the right to express those views freely and have them taken into account.

So how do we work to more effectively apply these key principles to children's rights and families, and how do we identify where existing legislation is letting us down?

Right now, the government is involved in two processes that will play a key role in answering this question.

The first is the review of the Guardianship Act, which Steve has talked about in some detail.

The second is our review of the submissions on the working draft of New Zealand's first periodic report on the implementation of UNCROC.

Some of the comments made in these submissions illustrate public sentiment on this issue. Here are some that were made in relation to children's rights and families.

Encouraging participation by children

People felt that where consultation with young people took place, then action needed to be taken on what they said as well. In short, children should be consulted about decisions affecting them, including decisions being made within the family unit.

This feedback is backed up by a recent Otago University Children's Issues centre study that found only 19% of 107 children surveyed had been consulted about initial custody arrangements. By comparison, the overwhelming majority felt their views should have been listened to.

As one submitter to the draft report put it: "In custody cases, and in cases where a mother was imprisoned, children were not getting a real say in where they'd like to go – so many decisions about children reflect adult interests."

This is a significant issue, and one that those who advocate a particular parenting option sometimes fail to take into account. It's all very well to talk about the rights of mothers and fathers at the time of a relationship break-up, but too often the language focuses on the rights of parents, rather than children.

And when we are talking about the best interests of the child, legislation does not always make it clear that best interests are generally interpreted as meaning regular contact with parents, and it doesn't even refer to children's rights.

The Ministry of Youth Affairs conclusion is that New Zealand's legislation, particularly family law legislation, does not conform to the principles within UNCROC that cover this area.

So recognition of the need for legislative change has been widespread, coming from government departments, opposition MPs and parents unhappy with the outcome of their own custody arrangements.

The role of fathers

Three submissions to the draft report dealt with the role of fathers. There was a feeling that the role of fathers as caregivers isn't being given the recognition it deserves.

One submitter suggested that New Zealand follow the Australian example and introduce a philosophy into family law that recognises the shared nature of parental responsibilities after separation – better known in New Zealand as shared parenting in the form of a bill that was voted down earlier this year.

The government's decision not to support the Shared Parenting Bill was in no way a sign that it places any less value on the parenting role of fathers. What it does mean is that we are unconvinced that a default position of joint custody when you are faced with a high level of conflict between parents is necessarily in the best interests of the child.

As I mentioned before, existing legislation leaves the definition of best interests of the child open for debate, something that has been reiterated in a submission to the draft report.

In New Zealand we already have what other countries call joint legal custody of children. We call it guardianship, and that has been in place for more than 20 years.

Some 95% of the cases that result in custody applications in the Family Court are settled by agreement, and only 5% of applications actually end up in fully contested proceedings. It is exactly the sort of situations that currently end up in the Family Court where joint custody is less likely to be the best option for the child or children involved.

At this point the decision is not made on the basis of gender. The reason custody is normally awarded to mothers is that they are usually the primary caregiver. If that isn't the case, it's reflected in the court's decision.

Shared parenting is of course an utterly worthy objective. There is no doubt that it is preferable for children to have good strong relationships with each of their parents. But in the context of custody and access arrangements we are not talking about every family. We are talking about the minority who separate, and among those the very small proportion who can't reach an amicable arrangement and require the family court's intervention. We are literally talking about the worst case scenario.

It's also unlikely that parents who have not shared parenting throughout the course of a relationship are suddenly going to divide up this responsibility at the time of separation.

If we are going to have broad-based social policy targeted at children having a good relationship with each of their parents we certainly wouldn't start with the family court – we would start at a much more basic level than that.

Studies reflect the fact that children want to spend more time with the fathers who live under the same roof as them. That is a much better and broader place to start creating a new culture of fatherhood. If it happens there it is far more likely to continue in the event of a relationship breakdown.


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