Research Urgently Needed For Law Changes To Enable Children’s Safe Participation In Family Court Disputes

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The New Zealand Law Society | Te Kāhui Ture o Aotearoa has told Parliament’s Justice select committee it supports the principle of enabling children’s views to be heard in family proceedings, but the lack of an evidence-based model for how that will work in practice means the current legislative reform carries significant risks – including that it will not achieve the fundamental objective of enhancing children’s safe participation and wellbeing.

The Law Society’s Family Law Section presented its submission today to the select committee on the Family Court (Supporting Children in Court) Legislation Bill, endorsing the Bill’s objective of enhancing children’s participation in decisions affecting their care and wellbeing.

“This is consistent with New Zealand’s obligations under the United Nations Convention on the Rights of the Child and aligns with an increasing international commitment to enhancing children’s participation in private family law disputes,” Law Society Family Law Section Chair Caroline Hickman told the committee.

“However, careful consideration is needed to achieve the right balance between children being able to express views and participate in matters that affect them, and protecting children from being over-involved in acrimonious adult disputes and over-exposed to multiple professionals. There are complex factors involved in determining if and when it is appropriate to ascertain children’s views in family dispute resolution and court proceedings and, if so, how to do so,” Ms Hickman said.

The Family Law Section agreed with the recommendation of the Independent Panel’s 2019 report on the family justice system that research is needed on appropriate child participation models for Aotearoa New Zealand, and says it is highly unfortunate this work has not yet been done.

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“Research and development of an agreed evidence-based model for children’s participation – in consultation with experts – is imperative if the Bill is to achieve its objectives. A proposed model should be developed, and critical and informed feedback obtained from key stakeholders before the model is finalised and enacted in legislation”, Family Law Section Deputy Chair Susie Houghton told the committee.

“Until that research has been completed and an agreed model developed, the Law Society believes the Bill is premature and risks creating unsafe practices, and recommends it is deferred while the work is undertaken,” Ms Houghton said.

If Bill is to proceed, however, the Law Society has recommended amendments to ensure greater clarity and consistency with other family law legislation.

Notes:

The Law Society’s submission on the Bill is available here https://www.lawsociety.org.nz/assets/Law-Reform-Submissions/638b5e3ab4/Family-Court-Supporting-Children-in-Court-Legislation-Bill-2020.pdf. The Bill is available here https://legislation.govt.nz/bill/government/2020/0323/latest/LMS384286.html.