Putting Children First
Hon Steve Maharey
30 October 2000 Speech Notes
Putting Children First
Address to the New Zealand Association of Children's Supervised Access Services conference. Grand Hall, Parliament Buildings.
Thank you for inviting me to speak to you at this the Annual General Meeting of the New Zealand Association of Children's Supervised Access Services.
It seems fitting that you are holding your conference so close to children's day.
I was delighted that so many people got into the spirit of celebration.
For we have much to be proud of.
Despite what we see on the television or read in the newspaper, most children in New Zealand enjoy a pretty fabulous childhood.
And most families try their best to put their children first.
Whether in a one or two-parent family, or perhaps living with extended whanau, most children grow up feeling secure, knowing they are loved.
We all only have one childhood, one start in life. Get your career wrong, and you can probably retrain; fail to provide your children with the best possible start in life, and you can never turn the clock back.
I think it is high time we moved the child welfare and children's rights agenda along.
We have concentrated, with the best of intentions, on the problem issues. Whether that be:
child abuse and
children's rights when parents separate.
I think it is high time we realised that children don't suddenly develop rights in times of trouble or trauma.
Every child has a right to expect their parents will be involved in their life.
Every child has a right to expect that adults will consider their needs – and place great importance on meeting those needs.
It is as vital that hard working parents are able to spend quality time with their kids, as it is that separated parents are able to have a positive influence in the lives of their children.
Every child needs support and encouragement. Help with homework, guidance in times of trouble, the natural security of a home where parents care enough to set age appropriate boundaries.
These are not just issues for separated or blended families, they are issues for every parent, every day of the week.
Children's day is an important signal. Not only about the rights of children but also about the incredibly important responsibility of parenthood.
New parents literally hold the future of our country in their hands.
Our vision of New Zealand as a creative, innovative, knowledgable society rests on our ability to produce successive generations with the tools and confidence to succeed.
And that starts in the home.
A quote which I think rings particularly true, though I have no idea who coined it, is:
"Invest in the future; have a
child and teach her well."
We all need to think about the investment we are making in our children.
Invest well and the rates of return are phenomenal – far better than any Super fund will achieve.
So as we focus today on families in difficult situations…
As we focus on separation, and access.
We should do so in the context of the needs of every child.
And the investment we all have in ensuring that children get the care, support, nurture and encouragement they need – and which it is their right to expect.
Separation can of course have a devastating effect on the lives of children caught in the middle.
But it clearly does not have to be this way.
Parents often manage to put the best interests of the children first even when their own domestic relationship is no longer sustainable or repairable.
This is evidenced by the fact that the vast majority of cases that involve custody applications in the Family Court are settled by agreement between the parents.
With only 5% of cases actually end up in a fully contested hearing.
But as you know in a fraction of this five percent, the parents relationship is so damaged that the interests of the children go out of the window.
It is tragic when adults who are meant to be the focused on doing what's best for their kids instead use them as bargaining chips in an adult war.
This is a situation we must address.
That is why we are currently reviewing much of the family legislation.
As a government our focus is on:
enhancing the wellbeing of children and young people, maximising their opportunities, recognising their rights and interests;
supporting 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 including when the parents separate.
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. Not too surprising when you consider the age of the Acts.
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 unusual situation for most 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.
Therefore it is vital that we develop 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 the 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.
I suggest that 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.
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.
I trust you have read
the discussion paper and I would encourage you to submit
your thoughts on the issues that the paper
Clearly your Association will have a particular interest in providing comment on an issue that has remained unresolved for a number of years – the role of, and funding for, supervised access services – this is canvassed at page 17 of the discussion paper.
While the current Guardianship Act talks about the paramountcy of the welfare of the child, the Act in fact concentrates on access rights of parents.
Access isn't about parents rights. I for one support the premise in the Domestic Violence Act that a violent parent has abrogated their responsibilities and the rights of their children.
Rather, access is about the rights and needs of the child – and the responsibilities of parents.
The current Guardianship Act is littered with language that rather than supporting a child centred paradigm, actively works to reinforce the worst aspects of parental dispute.
The language –as it stands, sounds like property law.
'Custody' is defined as “the right to possession and care” of a child.
The very word 'custody' conjures up prison cells not loving homes.
'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 that we use this kind of “winning” and “losing” language when relationships are already fraught – and where children are involved.
Quite simply, the language must change and so must the attitudes that reinforce it.
I firmly believe the Act must focus, like the Children Young Persons and Their Families Act, on the paramount interests of the child.
And where your association steps in: where access
poses particular risks:
directly to the child;
to the other parent;
or that the child will be abducted
we must place even more emphasis on the rights of the child – as I know your members do.
But we must acknowledge that supervised access is an enormously contentious issue.
With even the issue of funding becoming something of a litmus test.
For example, the Department of Child, Youth and Family Services, and its predecessors, has long been a provider and funder of supervised access.
For Child, Youth and Family this is a simple matter of ensuring that a child's right to see their parents can be managed safely when abuse or neglect is an issue.
Funding of such services has never become a contentious issue in this context, (apart perhaps from provider concerns about the limited resources). This is because the philosophical underpinning's are clear- it is a children's rights and safety issue.
On the other hand, funding for supervised access services where parents separate and domestic violence is an issue is highly contentious. The current legislation suggests that in such cases it is the adult user of the service that must pay.
I understand that the then Minister of Justice, Doug Graham, was of a view that violent parents had no real 'right' to see their children and so should pay for the privilege of doing so.
I can understand his view. Nothing in the world can ever excuse an adult beating their partner or their children. And when adults behave this way they are actively demonstrating their inability to be responsible.
Having said that, the then Ministers position reflects the same misunderstanding that plagues the legislation – that we are talking about parents rights to access.
We are not – we are talking about children's rights.
This means that our first consideration should be about whether it is in the child's interest to have safe contact with their other parent, and if so on what terms to protect the child, and the full time parent.
Nor can we ignore the history of supervised access. Services developed in response to some truly horrific incidents. Access opportunities, albeit in a tiny minority of cases, became opportunities for assault, rape, murder or murder/suicide. So professional supervision certainly has a vital role to play.
But does this mean that the child's rights are automatically served by having contact with both parents?
I have to say that I am not sure.
I think it would be overly simplistic and naive to believe every parental contact is a positive contact for the child.
If a parent is incapable of maintaining a safe and positive relationship with their child because they are more interested in waging war with their ex-partner, or perhaps because they are a direct threat to the child – this does not sound like a positive child focussed contact to me.
When the purpose of supervised access is as a transition stage to establish and evidence safety – this is clearly positive.
But if the risks are such that unsupervised access is unthinkable, then I have to wonder whether we are acting in the best interests of the child or whether in fact we have again fallen into the trap of thinking of contact as an adult 'right'.
My conclusion is that if the risk of harm is very high, the test for the best interests of the child should be very high too.
So while I remain unconvinced that contact is always desirable, I do think we should have a very simple framework for deciding what is right –
is this serving the best interests of the child?
I would also venture to say, that if more people applied this framework in their daily lives the world would be a much happier place and we would have little need for either supervised access or care and protection services.
Children themselves, within age appropriate bounds, will of course have a view on what is best for them.
We need to get much better at listening to their voices so that we may ensure we are responding to their needs, rather than acting as unwilling participants in a parental dispute.
The Current User-Pays Principle
So who should pay for supervised access in cases of family violence?
I will be interested to read the submissions that come in on this subject.
My provisional view is that a true consideration of the interests of the child should not be held hostage by the financial situation of a parent.
But this does not suggest that if a parent can pay they shouldn't have to.
In fact, the more we can do to reinforce to adults that their negative actions towards children have a cost the better.
If the children have to pay the price for adult behaviour every day, it is not reasonable to expect the adult to also pay for their failings?
In conclusion, I look forward to submissions on the 'Responsibilities for Children' discussion paper including the question of whether abusive parents should have to pay or contribute towards the cost of supervision.
Whatever the outcome, we must achieve a paradigm shift – we must recognise that as adults our relationship with our children is a gift and one which carries weighty but rewarding responsibilities.
And as for children, we must learn to recognise their rights and to listen to their voices.