Care of Children Bill

Thank you for the opportunity to speak on Part 1 of the Care of Children Bill. Some clauses in Part 1 have some merit, and today I shall focus on some of the more important parts, some that do not have quite as much merit, and some of the reasons why the National Party is not supporting the whole of the bill, although there are some parts that it will.

Part 1 starts off with the premise that the child’s welfare and best interests are supposed to be paramount, and they are. They have to be paramount. However, that is already covered in existing law in the Guardianship Act. Part 1 makes some changes and states that the child’s view must be taken into account in relation to where he or she lives and those sorts of other matters. That sounds great in theory, but the fact is that the child’s view is already being taken into account in the Family Court, and by any parent worth his or her salt.

Of concern is that under Part 1 children are being asked to choose between parents. That is a very, very real concern for those of us with any experience in family law, and there are particularly difficult issues when children are so often tugged between parents in very, very difficult situations. Let us face it, the Care of Children Bill is not legislation that most children in this country will ever have anything to do with. Although the Care of Children Bill is said to be about recognising families in their very many diverse forms, it does not deal with families that for the most part are functioning. It deals with unusual situations where families are not functioning correctly.

That is because families that are functioning, and even families that have split up and broken apart, but are still bound together by the love, care, and concern for the welfare of their children, do sort things out without going through the process of bringing the law into the matter, and wherever possible, without going anywhere near the Family Court. It is not that the Family Court is an evil place, or that the people in it do not do a very good job. By and large they do a good job. The fact is that parents need to keep their children out of the Family Court and they need to keep themselves out, because every cent spent in the Family Court is a cent that is not spent on the child.

This bill does not state one thing about the role of parents in sorting out their differences and keeping the Family Court out of their lives. It provides for counsel for the child. Counsel for the child has been around for a long time, and it is a really sad day when we have to state in legislation that counsel for the child—as if it were a really new and wonderful thing—must meet the child. Most people would think that that was a pretty basic arrangement. Most people would think that any law that would allow counsel for the child to exist, to be paid, and supposedly represent the child, and allows for a counsel for the child not to meet the child, and not to take his or her views into account, would be poor law. It is one that we have been paying for, for a long time, and it has nothing in particular to do with anything other than the fact that judges and the court system have allowed that to happen. One of the reasons for that is that the Family Court has for a long time been a very secret court.

One of the concerns that worries us in particular in relation to Part 1 is the day-to-day care provision, where day-to-day care is now to be the new politically correct term for custody. Apparently, custody implies some ownership. Well, parents do own their children, but children own their parents, and that is something we need to get through in this country. To call day-to-day care the parenting that a normal parent goes about with his or her child is an insult to parents. It reduces parental custody and parental rights responsibility to that of being a childcare worker paid by the hour. Interestingly, the concept of partner of a parent gets a huge amount of status in this legislation. Of course, it has nothing to do with care of children; it is all to do with parental rights over who they want to have as their partner.

New Zealand First opposes this bill, essentially because it does very little that is new, but millions of dollars will be spent to try to achieve its purpose, and in so doing, it can only confuse well-established legal principles. For example, if the Government wanted to do something about making the courts more open, that could have been the subject of a simple amendment. Otherwise, this legislation is really hidden around the construct of the Labour Party as part of its gender-bending agenda to have lesbians, homosexuals, and other forms of relationships get formal legal recognition. That is absolutely unnecessary. As we heard from so many witnesses, the courts already recognise lesbian relationships as being relationships that are capable of being granted custody orders. We had one of those extraordinary matters before the select committee where it appeared that a lesbian relationship had broken up and one of the lesbians had got custody of the other lesbian’s natural children and was living in yet another lesbian relationship. One wonders what would happen if that lesbian relationship broke up and how many children one lesbian would end up being the mother and the father to. But that is all possible under the existing law.

There is no need for this legislation as far as that is concerned, and it was explained to the many lesbians and homosexuals who came before the select committee that we had witnesses who said yes, they had had court orders from the court, it took time, it was difficult, and that is the court’s role, but, currently, under the existing law, they could get those orders for custody.

So what is the point of this bill, other than to put into legislation the Labour Party’s gender-bending attitude to relationships? The court already knows what a de facto partner is; that is common sense. We know what a de facto partner is. We know what a de jure partner is. We do not need some legislature telling us what that means. But this Minister in particular, and his Government, feel they must dictate everything to the country, and tell people what they ought to do and what they ought not to do.

In fact, the existing legislation—the Guardianship Act of 1968—states that the welfare of the child is paramount. That provision goes back to 1926. It has worked well, at least since 1926, but this interfering, busybody, Labour Government must interfere in people’s lives to the nth degree and overturn well-established legal views set in place as far back as 1926.

When we look at section 23(1) of the Guardianship Act, it covers almost everything—in a few lines—that is currently contained in Part 1 of this bill. It states: “(1) In any proceedings where any matter relating to the custody or guardianship of or access to a child, or the administration of any property belonging to or held in trust for a child, or the application of the income thereof, is in question, the Court shall regard the welfare of the child as the first and paramount consideration.” That has worked perfectly for almost 80 years. Yet here we have this interfering Labour Government trying to window-dress a change to suggest that it has brought things up to date; that things are all very much more modern now. But all it has done is waste everybody’s time in getting back to virtually the current situation, but using different names.

There will be awful confusion, as I believe Judge Mahoney said at the Justice and Electoral Committee, as to the use of words like “day-to-day care” in an order. The terms “custody order” and “access order” have worked very well. But “day-to-day care order”—it will take a long time to work out what that means. Now we have the term “parenting order”. Well, do we have to tell a parent that he or she has a parenting order? Parents know they are parents. But now we have parenting orders. Is that something for the lowest common denominator in our society? Is that the Labour Government saying that it knows best and it will call it a parenting order? But a parenting order sounds just like a custody order, and everyone will call it a “custody order” for a long time yet, because that is really all it still is. Is the “day-to-day care order” an access order or not?

This Minister has absolutely no legal training. In fact, hardly any Labour member of Parliament has legal training. I do not know whether any of them have actually been in a Family Court in the last 10 to 15 years to see how the court works. They have no idea whatsoever. Of course, that includes the Attorney-General, who I suspect has never been in a court at all, yet she accepts responsibility for this type of legislation.

This bill is complete nonsense. It is a waste of time, and it is confusing. Part 1 adds nothing to the existing law, apart from taking up so much important time of this Parliament and this country. No one should support it.

The ACT party will be voting against the Care of Children Bill as well, but I would like to put on the record where we stand over this whole issue of family law reform. If the Committee thinks back to the period 2000-01, that was when a bill that actually started off a lot of the debate about family law was debated in Parliament; it was a member’s bill to introduce shared parenting. It appeared to me in my research about how to try to ensure that children in New Zealand do better, and particularly those kiddies whose parents have separated and have had to go through the whole trauma of family breakdown, that some countries had done better than others— in particular, countries like Sweden, Holland, and many states in America, where they had brought into their family law something that they called “shared parenting”. It was an interesting concept, which I brought into our New Zealand Parliament back then. Labour voted down that bill but promised to come back to this Parliament with some legislation that would actually address those issues.

It is with a great deal of sadness that I was not able to convince the Government to look at introducing shared parenting into this Care of Children Bill, because the principle of shared parenting is one that is just based on common sense. Essentially, that principle means that just as two parents are considered to be equal in their rights and their responsibilities towards their child or children before a family breaks down, so, too, should those two parents still be considered equal in terms of their rights and responsibilities after a family breaks down. That, in fact, should be the case, unless the other parent can prove that one is unfit to be a good parent.

What we have in New Zealand is the opposite of that. We have had a situation where those parents who do not need to go to lawyers, do not need to go to the Family Court, often end up with shared parenting arrangements, which work very well, because the courts do not hear about those cases. But for those parents who are locked into a battle over the children, the history in New Zealand has been of giving sole custody to one of the parents, and traditionally it has been the mothers, but the sad part about it is that the fathers have been locked out. That has given rise to growing levels of fatherlessness in New Zealand and a growing concern by all sorts of New Zealanders, and, in fact, State authorities, over the impact on children of growing up without a dad in their lives.

So when we have sole custody going to one parent, and the other one ending up by being locked out, we get problems. Shared parenting was a way of addressing those problems and trying to bring a better balance back into the way we deal with family law that deals with children in New Zealand.

I suppose the greatest sadness from my perspective is that we heard what rebuttable shared parenting could do. We call it “rebuttable shared parenting” because it is a default position; it means that when a couple separate, if they are both decent people, then they have to make the arrangements for how best to look after their child by working out what is in the best interests of their child. Whether it is the children or child living with mum during the week, and dad at the weekends, or whatever it happens to be, it is up to them to make the individual set of arrangements that best suit their child.

In countries where they have shared parenting, 20 to 30 different types of arrangements tend to be the ones that parents agree to. It takes the warfare out of the divorce situation, the separation. It makes sure the child does not lose either mum or dad, or grandparents, or other family members as well. I cannot for the life of me understand why the Labour Government did not agree to at least bringing this type of provision into family law, given that this is the best opportunity that New Zealand has ever had.

Clause 4 explicitly states: “The welfare and best interests of the child must be the first and paramount consideration—”. Then when I read new clause 4A(e) stating that the child’s safety must be protected, and how he or she must be protected from all forms of violence, I question whether this bill would be sufficient to protect a young 5-year-old girl whose case was brought to my attention by her heroic grandmother, now her guardian, at my electorate office in June of this year.

This 5-year-old child was described by her oldest sister as having been kept for prolonged times in a dog kennel or in an old freezer; that a cattle prod was used on her; that she also had burns inflicted and was tied to the back of a motorbike and dragged. A specialist paediatrician said: “The MRI or brain-scan image indicates that this child has been the subject of severe head trauma. This type of severity of head injury is not seen in simple household accidents.”

When I see in clause 4 that the welfare and best interests of the child must be the first and paramount consideration, I think back to the day in my electorate office when I was shown the newspaper headline: “Child ‘lucky’ Couple narrowly escape jail for cruelty to daughter”. The newspaper report notes: “Cassandra Marie-Rose Edwards, 31, and her partner Bruce Lloyd Potaka, 26, were sentenced for cruelty to a child.” They neglected to seek medical attention for her after what was described as a home accident. What also stunned me was that the judge, Michael Crosbie, handed down a sentence of 280 hours’ community work to Edwards and Potaka. How does this equate to a life living with multiple brain injuries? As I read the paediatric consultant’s diagnosis, which stated that the severity of that type of injury is not seen in simple household falls, I wondered how carefully authorities had followed up on what had happened to her.

On the same day that this child’s grandmother came to see me, I wrote to the Hon Phil Goff and other Ministers seeking urgent advice. I stated in my letter: “I am aware that an appeal should be instigated urgently because of the timeframe available and would ask you to make every endeavour to do so.” I did not receive a definitive reply from Minister Goff until 12 July, 12 days after the opportunity for appeal had closed.

Fortunately, I had been given alternative advice to write to the Crown Solicitor, Andrew Cameron, from whom I had a reply. It stated: “I confirm that the Solicitor-General has determined that a sentence appeal is appropriate in this case and it has been duly filed with the Court of Appeal. … Should further evidence emerge which would enable assault charges to be laid, I will ask to review the file with this in mind.”

On 1 October, 5 days before the appeal was due to be heard, the girl’s grandmother received a letter from the Deputy Solicitor-General, N M Crutchley, which stated: “I wish to advise that this appeal will not proceed.” What astounds me is the third paragraph, which states: “The Crown remains of the view that as a general principle it considers wilful neglect of a child should be met with a term of imprisonment.” It seems extraordinary that the Crown has done a pre-trial deal whereby Mr Potaka and Ms Edwards have been sentenced to a community sentence when the Crown says quite clearly that it remains of the view that, as a general principle, it considers that wilful neglect of a child should be met with a term of imprisonment. Since that letter I have written to the Commissioner of Police, asking for a full inquiry.

I wonder as to the efficacy of clause 4, “Child’s welfare and best interests to be paramount”—the “paramount clause” of this bill, when I think of that little girl and her grandmother and they way she has been served by the police, by Child, Youth and Family Services, by the court process, and even by the lackadaisical attitude of Ministers of the Crown to my urgent pleas. No assault charges have ever been laid. I hope that all these authorities do better and will recall the words of the neuropsychologist who assessed this child. Those words were that she has been “severely physically and emotionally abused”, and the perpetrator is still out in the community and is therefore free to engage in further abuse of children. The paramount clause of this bill has not been upheld in practice.

In rising on behalf of United Future to speak to Part 1 of the Care of Children Bill I want to address clause 4A, “Principles relevant to child’s welfare and best interests”. That clause provides that a child’s parents and guardians should have the primary responsibility for the child’s care, development, and upbringing. It appears that the whole Committee, including the Government, agrees that a child’s parents and guardians should have the primary responsibility for the child’s care, development, and upbringing, and that is quite proper and quite logical. We do not give that responsibility to the State. We give that role to parents, and, particularly, we give that role to parents until children reach the age of 16 years.

Why do we do that? We do that because parents provide what the State cannot provide. Parents provide love and affection for their children, whom they have conceived and nurtured and had dealings with over their whole lifetime. Parents provide money way beyond what the State could afford in order to properly nurture and bring up a child, often extremely sacrificially. They go to extraordinary lengths where children need special assistance, such as with special-needs children and other children who suffer disabilities, and they use their life savings to help their children to have the best life that is possible. Parents provide time. They are with their children day and night, and the State, at best, can provide only short-term supervision. We do not give the primary responsibility for children to schools, to school councillors and nurses, or to doctors. Why not? Because schools do not provide the love and affection on an individual basis that parents can provide—far from it. The schools do not have the monetary resources to do that job, and they do not have the time to look after children night and day. Children are at school for a few brief hours each working day. Doctors do not provide the love and affection that parents do. They have a multitude of patients to care for. Doctors do not have money to put into children, and they do not have the time—they see children for a few brief minutes in appointments.

Parents are in the best position to know what is best for their children. The case of Stacey Brindle, a 16-year-old, is one appropriate example of that. She was given contraceptives in order to try to cure acne, and she then died from deep vein thrombosis, simply because it appears the doctor was unaware that she had a susceptibility to that condition. Her parents knew that, but they were not told—they did not know that she had been given that medication. Children are not in the best position to know what is in their own best interests, particularly young children and children under the age of 16. That is where our privacy laws have grossly let us down, because we assume that children should be able to have privacy and say they do not want their parents to know about something, and we assume that that will always be in children’s best interests. It is not. Doctors and children together are not in the best position to know what is in the best interests of a child. Doctors see children for a brief period, and a child’s position in terms of seeing a doctor for a brief time is far from satisfactory in terms of the confidence and length of relationship that is necessary to make those sorts of judgments. Doctors act on present symptoms and, possibly, on past experience. They cannot provide for the future welfare of a child who is in a situation whereby he or she needs ongoing supervision and attention, particularly where medication has been prescribed or there is a need for other medical procedures. They simply prescribe the medication, and leave the child to it.

That issue is particularly appropriate when we consider clause 37A, and in respect of the termination of a pregnancy. Terminating a pregnancy can have serious health consequences for young children, and it is imperative in that situation that the parents be involved in order to oversee the physical, emotional, and psychological impacts that all pregnancy terminations cause. It is simply inadequate to assume that parents should not be told about a termination because a child and a doctor believe it is not necessary to do so.

I seek leave to table a series of papers relating to the speech I gave prior to the previous speaker. The first is from the Wanganui Chronicle, and has the headline: “Child ‘lucky’, couple narrowly escape jail for cruelty to daughter”. The second concerns the Crown prosecutor Michelle Howard, and is a letter from me dated 23 June 2004, requiring that she instigate a appeal. The third document is from Andrew Cameron, Crown solicitor, confirming that a sentence appeal is appropriate. The fourth one is from the Minister of Justice, Phil Goff, and is dated 12 days after the appeal time had run out. The fifth is from the Deputy Solicitor-General, advising that the appeal would not proceed. The sixth is from the neuropsychologist involved with the case. The seventh one is from KidzFirst Children’s Hospital, advising of the injuries sustained to this little girl.

Documents, by leave, laid on the Table of the House.

I am delighted to have the opportunity to speak on this legislation. I do so from the perspective of having listened carefully to the speeches that have been made by members who are concerned about, and opposed to, this bill. I join them in their opposition to this bill and this sort of legislation. The reason for that is that, far too often now, Parliament passes a lot of mumbo-jumbo, politically correct laws that have no place in our society. We try to be so prescriptive as to deal with every possibility, every connotation, and everything that may happen, and of course we cannot do that in law.

Instead of spending time here on writing laws that are so prescriptive that we will have to come back and fix them up because we have missed something, it would be far better to write laws that encourage parents to look after their children. The sad fact is that we have in this society, as in all societies, marriages that break up. The problem is that it is the children who are the losers. Under this sort of law, what we are finally going to end up with is one parent only. I know the Government will say that it is actually trying to encourage both parents to be involved. We cannot do that by prescription—we cannot write laws that force people to do something. We must write laws that encourage and enable parents to continue to meet their responsibilities, even if they are not living together as a couple. This law will fail absolutely. This law that we will probably pass today—because the Government would not have brought it in here to the Chamber if it did not have the numbers to do that—will not encourage both parents to work together in the best interests of the children. Surely that is what Parliament should do. Surely we should look first and foremost to ensure that the child gets the best contact he or she can with both parents. I say to the Government that this bill will not achieve that, at all.

We have got to the stage where we have become so prescriptive in our legislation that we cause stupid decisions to be made repeatedly—to the point where we take away people’s rights, take away parental responsibility, and cause further problems for people who are grappling with difficult personal situations. We do so because we stand here as a Parliament and say that we can write law because we know best, because we can foresee every set of circumstances, and because we understand everything that is going to happen. We say that we will put it down in legislation and include every bit of detail, so that nothing will go wrong. What a lot of absolute nonsense that is! If members of Parliament look at the laws we have passed in the last decade, they will find that there are great gaps in them—something happens; there is a set of circumstances occurring right now that we did not know about and did not write law for—that somebody falls through. Sadly, because we write prescriptive law, instead of laws that enable people, we end up writing laws that cause more problems and more heartache.

This bill will do exactly that. Mark my words, we will be back in this House in another 2 years or 5 years, saying what a great shame it was that the Care of Children Bill did not do this or that. We will end up doing exactly that, for the very reason that we have tried to forecast everything that can possibly happen between two people who have a marriage break-up when they have children. Instead of looking at how we can encourage those parents to continue to work together in the interests of their children and their family, even if they are not living together—enabling people to work together—we end up writing laws that give some instruction or another. I say to this Committee that that will be an absolute failure. The sad thing is that we are doing it again. Every time that I take the call on this bill I will talk about our writing too much prescriptive legislation, instead of writing legislation that enables people.

I am pleased to state that the National Party categorically opposes the Care of Children Bill. In the course of this debate the Committee will hear a number of reasons why we do so. I want to make at least a couple of points in my contribution. First of all, if we look at the purpose of the bill we see from the Bills Digest it “will replace the Guardianship Act 1968 and amend the Family Proceedings Act 1980 and the Status of Children Act 1969 with the aim of modernising the law relating to guardianship, care of children, Family Courts’ procedures, and parental status.” On the face of it, that is a worthy aim. But, on the other hand, when we look at the detail of the bill we see that there is no guarantee that the so-called modernisation of several sets of legislation will achieve one jot of difference for the children of this nation. Modernising the law is, in itself, of no consequence unless there is a vast improvement in what we are doing for the children of New Zealand. This bill, in my view, does not achieve that, at all. I support other speakers from the Opposition side of the Chamber. The Government has taken almost every piece of legislation it can think of and, for the sake of looking busy and unnecessarily spending money, has reviewed things left, right and centre. It brings laws into Parliament to change things because it wants to look as though it knows it all when, frankly, if we examine the detail we see no guarantee that anything contained in this bill will make our children safer, make their lives more pertinent, or guarantee that things will be better for them in any way, shape or form. That is the first point.

The second point is that the background to the change is a woolly-woofter explanatory note to the bill that states things like: “Family and ethnic demographics … have changed considerably …”. That is true; we know that. It goes on to state: “The 1968 Act is premised upon a traditional nuclear family model that does not reflect the diversity of family arrangements.” The thing is that the heart of the 1968 Act was exactly the welfare of the child being absolutely paramount. That underlying purpose has to remain true, no matter how much the demographics of our country change. The explanatory note then states: “More modern legislation must provide a framework that recognises and supports all types of family units that care for children, for example, single-parent households, extended families, reconstituted families,”—God only knows what that means under a Labour Government—“and de facto relationships … That challenge is magnified when the varied cultural dimensions of families are considered.” What does that mean?

I would like the Minister to take the call. I ask him whether it means that for reasons of difference in culture we may accept a lesser standard of care for our children. I certainly hope not. I would have thought that an overriding, underlying, overarching principle that the interests of the child must be paramount should stand, whatever the age, whatever the circumstances, and whatever period of time in New Zealand we are talking about. That sort of woolly-woofter explanation for changing a law which has stood the test of time to a large degree, in my view, is not sufficient. It certainly will not get support from the Opposition side of the Chamber, and I see that a number of other parties will be opposing the bill, as well as National. The Minister tells me to read the bill. Yet we do not have to read far in order to realise—and I support my colleague John Carter on this—that there is a lot of mumbo-jumbo in it. This legislation does not improve the situation one iota. The Minister should read the bill. He should explain to the public of New Zealand what some of these things mean. I want him to explain what is behind the statement that “the varied cultural dimensions of families” must be considered. I do not support that statement. It suggests that, depending on a person’s culture, a lesser standard of care for his or her children is OK. We will not accept that; I do not accept it. The child is paramount, whatever the circumstances.

I appreciate having a second call on this matter, which is very seriously regarded by New Zealand First.

One of the matters that has been raised from time to time by Labour Party members in support of this bill is their view that this bill has a provision that regardless of the age of the child, there should be no presumption that the placing of a child in the custody of a particular person will, because of the sex of that person, best serve the welfare of the child. I have heard Darren Hughes and the Associate Minister of Justice make that remark from time to time. They obviously mean to refer to clause 4(4), but the phrase that I have just read out is from the Guardianship Act 1968, and was inserted in 1980. That provision is perfectly satisfactory, and has been around for 24 years. Labour members are trumpeting it as a new idea that the courts must not let the sex of the person applying for custody in any way influence the decision. It is not a new idea. It has been around a long time.

The wording, as one sees when one considers it carefully, applies already to the lesbian and the homosexual situation. I am totally opposed to that sort of behaviour, but it states: “there shall be no presumption that the placing of a child in the custody of a particular person”—it does not say male or female—“will, because of the sex of that person, best serve the welfare of the child.” That provision was drafted when I was in the House, in 1980, with the assistance of Marilyn Waring. Members can be sure that that type of wording would have been gender-neutral. The current law is entirely gender-neutral, and the matter is totally well covered under the existing law by simple wording in a straightforward Act that has been around for a long time. This Labour Party Government tries to trumpet something that is absolute nonsense.

Another reason that the first part of this bill is invalid is that the Government should have made it clear in clause 3, “Purpose of this Act”, that it intended to ensure that the courts would not make ex parte orders without the other side, which usually is the father, being heard, would not grant custody, which usually is to the mother of the child—that is the fact of the matter in 85 to 90 percent of cases—without hearing any evidence from the other side, and would not totally rely on hearsay evidence from one party who clearly has a very strong vested interest in the matter. This clause should have had a statement that the existing domestic violence legislation was being incorporated in this bill so that there was one codified piece of legislation relating to the care of children. More decisions about the care of children are made under domestic violence legislation than ever will be made under this legislation. The domestic violence legislation will supersede this bill time and time again, because under the provisions of the domestic violence legislation an interim custody order will be made, the father will lose custody of the child, and the child will be without the benefit of having both parents.

Even Family Court judges have been critical of the changes made in, for example, 1995. Justice Doogue’s article stated that the decision that had been made—regrettably, by the Government of the day, which I will not mention—was too much of a reflex action to one case. There was one bad case that took place at about that time. The Government rushed ahead with its viewpoint of the day, and decided it would rush through new domestic violence legislation, which included things like psychological evidence. We should not be continuing with the 1995 legislation, which even judges have criticised for its severity and the way it inevitably works against one party. Reference to that legislation should have been made in the principles and purpose provisions in Part 1 of this bill. That legislation should have been incorporated into this legislation, making one law.

But this Labour Party Government really does not care about all those fathers out there who are unable even to get access rights to their children on a regular basis. Those fathers are made to go through supervised access procedures, to sit in supervised access places with, in many respects, the worst cases in our society who have justifiably had supervised access orders made against them. I have seen cases where 5 and 6-year-olds have had to go to a kindergarten to meet their father, and have wondered who the heavy-looking people wearing leather, and with all sorts of tattoos over their arms, were. Members can imagine the type of behaviour that those people exhibited. Young children were being exposed to that, as a result of the domestic violence legislation.

This bill is rubbish.

The National Party is not supporting the Care of Children Bill. I have to say that this bill is a wasted opportunity. The reason the Care of Children Bill is before Parliament is that we know we have a problem in New Zealand. We have a major problem with the care of some of our children. We heard from Dr Paul Hutchison just recently of a case that was an example of the sort of thing we see time and time again. We see too much of it in this country. I am sure that if those adults had acted towards another adult in the way that they acted towards a defenceless child, they would not have got 280 hours of community service. Somehow we seem to excuse the abuse of children whereas we do not excuse the abuse of other adults. It seems to me that children are defenceless, and that penalties for abusing them should be harsher, rather than being dumbed down.

This bill is a wasted opportunity because, although it is good to see that we are improving the rights of the child in custody disputes, we need to see the Family Court being more open. It is good to see that a lawyer is to be appointed to act for the child. I always thought that we had a lawyer act for the child. It seems absolutely ridiculous to me that it is now put in legislation that the lawyer actually has to see the child. I would have thought it was paramount that a lawyer who was acting for a child in a custody dispute should bother to go and see that child. It seems absolutely self-evident to me that that should be the case. This bill includes a provision that says that has to happen. These people are being paid. What on earth have they been doing to represent the child? It would seem that they and the courts have been relying on psychologists’ reports, which can be quite biased in favour of one or other parent, depending on whom the psychologist spends the most time with. It is good to see that the lawyer will actually have to see the child he or she is acting for, to make some determination for him or her.

It is also good to see that the child or children will be able to have their views, expressed by themselves in a court situation, taken far more into account. Children may not be able to express with articulation in a court situation all the ins and outs of what they believe and why they believe it, but they do know whom they want to spend their time with. They are the ones who know who the nurturing parent is, and will often choose to be with both parents. Most children, when a family breaks up, do not want it to happen. They want their parents to stay together. If it does happen, they want to have access to both parents without any recrimination from either parent, without any feeling of guilt, and without either parent talking about the other partner in a derogatory sense.

I am very sad that Muriel Newman’s bill on shared parenting, which she introduced to this Parliament years ago and Labour defeated, did not pass at that time or even get to a select committee. We heard that some of those issues would be dealt with in the Care of Children Bill, but what we have here are changes to guardianship, definitions of de facto, and very little about the rights and responsibilities of parents. In fact, I am not sure that “parent” gets mentioned much in this particular politically correct bill from the Labour Party Government. It talks about de facto relationships and guardianship. There can be more than one guardian; there can be several guardians, under this legislation. But what children in this country want is their mum and their dad, and ready access to both.

The fact that shared parenting has not happened is sad. I believe that the emotional trauma of fatherlessness has caused many people in this country immense suffering. I have had father after father in my constituency office who has been denied the right to see his children. One day those fathers were 50 percent of a parenting partnership, and involved in the lives of their children, and the next day that was gone.

I would like to bring to members’ attention the amendment that has been tabled that introduces shared parenting into the Care of Children Bill. It introduces the concept of rebuttable shared parenting as a default position, so that when day-to-day care arrangements are being determined by the court, they should be based on the principle that the two parents who gave birth to the child are equal in terms of responsibilities to that child. All care arrangements should be based on the fact that those two parents are equal.

In doing that, I stand here for the right of children to have a mother and a father. I know that many children in New Zealand have lost all effective contact with their dad. I appeal to the Minister in the chair, David Benson-Pope, who knows my views on this subject and the views of the ACT party, to consider supporting this amendment. It would give the children of this country whose parents separate the security of knowing that they will continue to have a dad, and to have the grandparents and extended family on that side, as well, as against a situation that in practice ends up alienating and marginalising the non-custodial parent and the rest of that family.

I also stand here tonight to advocate for the rights of fathers. Mr Tamihere made his rather infamous speech about the rights of the red-blooded male in New Zealand.

Hon Richard Prebble: Is he going to speak today?

Dr MURIEL NEWMAN: Yes, that is a good point. I wonder whether Mr Tamihere will speak in this debate. He has said a number of things that are very supportive of the rights of dads, but the proof is in this bill. If Mr Tamihere were serious about what he said about the rights of fathers, we would see shared parenting introduced in the Care of Children Bill as it passes through the House today. The onus now rests on the Minister. If he believes in the rights of fathers, he should be supporting my amendment, which introduces rebuttable shared parenting. If he does not stand for the rights of fathers, I think we deserve a call from him so that he can explain to us why he does not support the right of fathers to have contact in an ongoing manner with their children.

My concern about this bill is that it is one of those bits of Labour legislation that sound good and feel good, but that actually will make no difference. In New Zealand we have a practice whereby the custody of children is given to mothers, who become the sole custodians of their children. If the mothers let the dads see the kids for more than 40 percent of the time, they risk losing their domestic purposes benefit. Forty percent is the cut-off point. We have a system whereby the dads who do see the children for 40 percent of the time have to pay the full amount of child support. They get no allowance for the fact that they have their children almost half of the time. The Labour Government has shown no inclination to change that unfair child support system so that it is actually fairer.

Hon Richard Prebble: It’s anti-dad.

Dr MURIEL NEWMAN: As my colleague the Hon Richard Prebble has just said to me, it is an anti-father stance. The Labour Government is against fathers in New Zealand; otherwise, it would have done something to fix that in this bill. It is with a heavy heart that I stand here, because many New Zealanders thought this bill would sort out the very, very unfair situation we have with family law in New Zealand, which marginalises kids and is very unfair on fathers. I really ask the Minister to take a call to explain to us how this bill rights the balance that has got out of whack over the last few years.

I move, That the question be now put.

I take the opportunity to speak in this debate on behalf of National. As I look across the Chamber, which is crowded with Labour members, I note that the contribution from them to date has been evanescent. It has been insubstantial. There sit people like the Hon George Hawkins, who knows something about family law issues, one supposes, in the role he seeks to discharge as the Minister of Police. Clayton Cosgrove clearly has a contribution to make, but what is that contribution? It is the contribution of moving a closure motion when we are scarcely through this significant Part 1 of the Care of Children Bill. I despair of this Government and its new Minister David Benson-Pope. I am not sure whether he is the front for the social engineering agenda of this Government, but he certainly seems to be closely associated with its worst causes. If I were to identify what those worst causes are, they would clearly be the Civil Union Bill, where he is a frontrunner, decisions relating to reforming the laws relating to prostitution, which led to prostitution freed of criminal sanction, and now the latest excrescence, the Care of Children Bill.

I would like for a moment to pick up comments that earlier speakers have made as to the need for this legislation, at all. As a member of the Justice and Electoral Committee I can say without fear of contradiction that the bill certainly occupied a very substantial chunk of our time. The report back noted that 277 submissions were received, 102 were heard, the hearing of evidence took nearly 39 hours, and consideration took nearly 35 hours. On any view of it, that is a substantial expenditure of time and effort, and I ask “To what avail?”.

The Guardianship Act of 1968 has served the Family Court and New Zealand families well. Section 23 of that legislation provides that the welfare of the child is paramount. The actual wording is: “… the Court shall regard the welfare of the child as the first and paramount consideration.” So why is that same position repeated in Part 1 of the Care of Children Bill, which we are now considering? The reason is that that test, which has served so well for so many years, is seen as the test that should apply.

In looking at Part 1, I would like to pick up a particular aspect that must be of concern to anyone concerned with the interests of the family. That is the provision in clause 9(2) in connection with de facto relationships, where this Government is prepared to acknowledge that children under the age of 16 may, in certain circumstances, be part of a de facto couple. That has to be amazing on any view of it. The subclause reads: “Despite subsection (1)(a), for the purposes of …” two other provisions “… a de facto relationship may exist between a child’s mother and father even though they are not both aged 16 years or older.” So it is that the Government is asking the courts to look at relationships involving children who have passed through puberty and who are under the age of 16, in order to determine whether they are in a de facto relationship.

What are the sorts of things the courts will have to look at? They will have to look at how long the arrangement has gone on for. I am now referring to the statutory tests outlined by the Government in clause 9. They are to look at the duration of the relationship. They are to look at the aspects of the sexual relationship. They are to look at the degree of mutual commitment to a shared life. They are to look at the performance of household duties. How appropriate is it for the courts to be involved in looking at those sorts of statutory criteria for children who are under 16 and, presumably, 14 and over? It is not appropriate at all.

I move, That the question be now put.

I referred previously to the principles in clause 4A, “Principles relevant to child’s welfare and best interests”. In United Future’s view those principles, although they are fine in themselves, do not go far enough. I have tabled an amendment to that clause stating: “(aa) the welfare and best interests of a child are best served when the child experiences the love and care of the child’s biological parents when they are living together in a life-long loving and committed relationship to each other.” The amendment is consistent with what United Future believes to be the principles that should underlie all policy that relates to family; namely, that the family is the foundational unit that provides stability, well-being, and continuity to our society; secondly, that marriage between a man and a woman is the most deliberate approach to the establishment of a family and that, therefore, society should promote and support it; thirdly, that commitment, stability, and resilience are essential in marriages and all family relationships; fourthly, that the family’s essential function is that of loving, caring for, and nurturing all its members, recognising the need for an equality of well-being among them; fifthly, that the interests of children are best served by growing up in a happy, understanding, safe home created by a loving mother and father, supported by the extended intergenerational family, or whānau; and finally, that family membership requires a balancing of the rights, duties, and responsibilities of each member.

The first of two particular aspects of my amendment is that in United Future’s view it is in the welfare and best interests of a child in all cases that the child is brought up by its biological parents. One of United Future’s real concerns in regard to the Care of Children Bill is the Government’s move to replace biological parenthood with social parenthood, so that we get to a situation in which a child may have a multitude of parents because they arise through social connections rather than through biological connections.

The second aspect is the lifelong, loving, and committed relationship. When children are not brought up in the lifelong, loving, and committed relationship of their parents, they suffer and it is not in their best interests. Clearly, that is best fulfilled through marriage. The Government and Parliament should be promoting marriage rather than doing things that will undermine marriage or simply lower it to a common denominator with other relationships, such as the proposed civil unions and such as de facto relationships.

Clearly, the importance of permanency in a child’s life—ongoing permanency, not the sort of permanency where parents decide to stay together on a day-by-day basis, depending on what they feel—is absolutely imperative and should be encouraged by our society. The importance in the child’s life of the parents’ commitment to their relationship cannot be underestimated. Therefore, in the Care of Children Bill—which fundamentally deals with the way we approach the care of children in our society and what is in their best interests and welfare—we should be taking the opportunity of promoting the stable, lifelong, loving, and committed relationships that constitute marriage, and not, at the same time as we are expressing the importance of a child’s well-being, undermining it by allowing, facilitating, and encouraging the sorts of families that clearly do not statistically provide the same outcomes.

That is certainly true of the provisions in the bill that encourage single women to have children and that encourage same-sex relationships. In neither of those instances can it be shown statistically that the situations provide anything like the same sort of support that loving parents—and biological parents, in particular—can provide for their children. It is particularly important that children have both a mother figure and father figure. Certainly, there is a dearth of information because of the lack of relationships in terms of same-sex parenting, but we know, at least, that even same-sex parenting research that homosexual researchers have done shows that children in those relationships tend to be far more sexually active and sexually promiscuous. As a nation and as a Parliament, we should be putting principles in the bill that will encourage and foster the sorts of relationships that are best for children.

I move, That the question be now put.

I raise a point of order, Madam Chairperson. This is one of the most important bills to be considered in the term of this Parliament. It is well known that I have made a number of public statements about the importance of this bill, including court proceedings. I find it outrageous, having sought the call on four occasions, that you have disallowed me even being allowed to participate in this important debate.

The CHAIRPERSON (Ann Hartley): There will be plenty of opportunity to participate. All those in favour, please say aye—

Hon Dr Nick Smith: Bloody outrageous.

The CHAIRPERSON (Ann Hartley): The member will stand, withdraw, and apologise for that remark to the Chair.

Hon Dr Nick Smith: I withdraw and apologise.

I raise a point of order, Madam Chairperson. This is a debate in which, as my colleague pointed out, he has taken a strong personal interest over some time. I expect the debate on Part 2 will be one in which even more members will want to take part. I would be interested to know just how you intend to deal with assigning the call, because if Mr Smith was not able to get a call on Part 1 given his degree of involvement, there are any number of us who may feel that we are likely to be cut out of Part 2. So I would be interested to know just how you are going to handle it.

The CHAIRPERSON (Ann Hartley): Part 2 is the main part of the bill, I say to Mr English.

I raise a point of order, Madam Chairperson.

The CHAIRPERSON (Ann Hartley): Is this a new point of order?

Hon Dr NICK SMITH: Yes, it is. I recall—and I can deliver the quotes to the Committee—over 10 occasions on which I was told, during the contempt of court proceedings and in comment from Government Ministers, that the proper place to debate children’s law is in Parliament. I come to Parliament to do so, and all Labour members do is move closure motions. I simply seek the leave of the Committee to be able to make a 5-minute contribution, as other members have chosen to do, to address Part 1 of the Care of Children Bill.

The CHAIRPERSON (Ann Hartley): Leave is sought by Dr Smith for that purpose. Is there any objection? There is.