Family Court (Supporting Children in Court) Legislation Bill

Thank you, Madam Speaker. I rise to take a call on this third reading of the Family Court (Supporting Children in Court) Legislation Bill—and it’s in the area that I’m well-versed in, having practised, as people know, as a child advocate for a number of decades.

So in taking this call, I reflect that when I last stood in the House on a similar bill, which was the supporting families in court legislation, I spoke and said that it was a done deal. This is a done deal as well. The reality is that the Labour Government has a majority of 65 votes, their view has been well canvassed and expressed in the Justice Committee report, and it’s going through. So when I spoke on the supporting families in court legislation bill—this now being the supporting children in court legislation bill—I indicated that our children deserve better. And I speak from that point of view, having been a child advocate, a court-appointed lawyer, for a number of decades. I say the same thing again: the last bill was rushed through, under urgency, without the opportunity for a full, thorough, robust debate and contribution from those who know full well about the implications of such law to be.

I say that again, because the National Party, quite rightly and properly, opposes this bill at this time. One of the core reasons why it’s opposed is that those who advocate from a specialist, practice, and expert position point of view, as advocates representing children in the court—that is, the family law section, which represents some 11,000 practitioners, half of whom have more than 20 years’ experience—made a submission to the Justice Committee saying that this bill should be deferred until there has been not just anecdotal evidence provided but thorough research around the “how to”, the methodology on the best practice for representing children in the court. That view has been dispensed with, because why? It would seem that the Labour Government knows better than the specialist practitioners who represent children in the Family Court.

I’ve returned to this House; I wasn’t a member of the Justice Committee at that time. But I am, I believe, the only member in this House who has been a Family Court child representative, for almost 30 years. This bill is a done deal because it’s doing over what would be the best practice for children in terms of their representation and the model for that. That is clearly the evidence that was put by the family law section of the New Zealand Law Society to the select committee. But, for some reason, the Labour Party, the Government, knows better than everybody else, and this is being rushed through. The recommendation was to defer it until such time as not just the national evidence, but the international modelling—because New Zealand is well known as being an international leader in terms of child advocacy.

Another example of that is our system in the Youth Court. Why are we short-changing the best representation for our children? And I also share with you, in the short time that I have left for this call, that even absent such legislation, we have Family Court practice guidelines that have been well-researched, well-provided, not just by the judges but senior counsel for all the years of our specialty of practice. But also the other specialty of practice that’s been overlooked in this bill is the significant role that psychologists have, that counsellors have, that those other experts and specialists have in terms of the advocacy and representation of children—not just their views, not just their best interest, but the paramountcy of their welfare.

So it’s regrettable that, again, for some reason, this Government seems to think that they know best, they know better than what the experts and specialists do in this field, and in so doing it’s a done deal, and, again, our children are going to suffer the consequence of being done over. I don’t commend this bill to the House.

Tēnā koe, Madam Speaker. Thank you. I’m happy to rise and take a call on the Family Court (Supporting Children in Court) Legislation Bill at second reading. In doing so, can I just acknowledge the Justice Committee. Like the member Harete Hipango, who has just resumed her seat, I am not a member of that committee but I acknowledge the work that they have done in allowing the bill to reach this point in its progress in the House. I also want to very briefly just acknowledge two ministerial colleagues, the Hon Andrew Little, who started this piece of work previously, and the Hon Kris Faafoi, who has picked the baton up and has taken it forward.

I think it’s really important to remind the House that the genesis of this piece of legislation comes from the review that was undertaken around the 2014 reforms in this area and that it was done by an independent panel. This fundamentally is about access to justice for children. And as the member who has spoken previously no doubt accepts, these are often complex situations and complex predicaments.

I guess what I’m delighted to read, through the select committee’s report in having the bill come back to the House, is they identify four amendments that they believe will inform the bill and make it more workable. The first one is, effectively, around a stocktake to ensure that the date upon which this piece of legislation comes into force is delayed so that there is actually a piece of work that’s undertaken to ensure that the further training opportunities that will be needed, to ensure the participation of children appropriately through this process, is actually up to spec. And I think it’s appropriate to, in that light, delay the implementation of this to ensure that we’re not putting the cart before the horse, because that certainly wouldn’t result in pleasurable outcomes, in that sense.

The second amendment is around the strengthening of the provisions that allow for a child to participate in procedures, and this is not purely strictly related to the age and maturity of a child, but rather that the child needs to be capable of forming their own views. We all know that circumstance and context are two different things and they will mean different things to different people. So, again, another example of a suggested change from the select committee that will make the bill more workable.

The third is around the requirement for lawyers to, I guess, consider the safety considerations as being paramount throughout all of this engagement. So not a pure focus on reconciliation as a form of, I guess, mitigation, but rather ensuring that while reconsideration might be part of that piece of work, fundamentally the safety, and particularly the safety of the child, is paramount in that consideration. The fourth one is a technical one, which ensures that there’s some parallel alignment with the other piece of legislation, the Family Dispute Resolution Act.

There is one piece within the legislation that I think is a good move, and that is around the requirement for lawyers who are engaged or appointed to work with and represent the child through these proceedings—to ensure that there is a connection, whether it be through training, through background, around the lawyer’s personality, cultural background, and the like. And as I’ve mentioned earlier, these can be complex and very difficult issues that can arise throughout this process.

But like the member, in terms of experience, what I would say is that I have presided over sittings of the District Court in the District Court and the Youth Court jurisdictions, albeit through bail and remand hearings. And I have to say that I think it’s really important that the fit, the connection with the lawyer and client, is extremely important, because those who represent young people as youth advocates in the District Court, and the Youth Court in particular, have to fit a particular bill. Not all lawyers undertake Youth Court work, and that shouldn’t be any different for those that are engaged to work on behalf of children—that the lawyers who are engaged to work alongside children are a good fit, whether that’s around personality, cultural background, experience, all of those sorts of things. So having a bill that would allow for that is really, really important.

I’m delighted that this is another piece of the suite of changes to make our justice system more accessible and more fair. On that basis, I again thank the select committee for their work and I commend this bill to the House.

I’m pleased to be taking a call on the Family Court (Supporting Children in Court) Legislation Bill. I’d like to reassure the member from the other side of the House who was concerned that there was inadequate consultation with the experts around this bill. I’m really, really pleased that the Justice Committee had access to Dr Emily Henderson, who is not only a criminal court academic and reformer but a Family Court lawyer and an expert in child witness processes. The select committee can be very confident that they had very sound, world-class advice about the best way to resolve the issues that this bill is attempting to resolve.

I discussed this bill with her and she reminded me that it is part of a reset of the Family Court, which, as a review by the Minister Andrew Little in 2019 discovered, has become unbalanced, overstrained, and not responsive, especially to the needs of tamariki Māori. This bill actually reinforces and strengthens responsibilities on professionals, lawyers and mediators, to respect and facilitate children’s voices in disputes over their care. That is the heart of this matter: enabling our children’s voices to be heard. There is nothing more powerful to a young person than feeling that they have some control over their lives, and when they don’t, it can be devastating.

It also reinforces and strengthens lawyers’ responsibilities to seek to resolve cases quickly, fairly, and cost-efficiently, but also safely, because in many cases childcare disputes involve violence and abuse, which create extreme imbalances between parents’ bargaining power. This is why the Opposition are wrong to criticise the bill, as they do in their alternative report, for placing too much faith in lawyers. In a place like the Family Court, where disparities in power are so common, lawyers are a vital tool to achieve some sort of parity and rebalancing, and enable disempowered people to access justice—our most vulnerable, our children and women, to have a voice and to get a successful outcome. This isn’t to disparage alternative dispute resolutions, but most cases which land in the courts require the greatest of expertise and strong representation.

She reminded me how the changes that Collins made in 2014 which cut lawyers from the early stages of proceedings—

ASSISTANT SPEAKER (Hon Jacqui Dean): Order! Order! The member will refer to another member by their full name.

I beg your pardon. There were cuts made, and what happened is the rate of emergency applications moved from 30 percent to 70 percent of all applications, reversing the previous proportions. This wasn’t because lawyers were trying to keep work; in fact, most Family Court lawyers are hugely oversubscribed. What it did—

ASSISTANT SPEAKER (Hon Jacqui Dean): Order! Order! I’m sorry to interrupt the member, but I was waiting for the member to correct her speech.

Oh, I beg your pardon—for Judith Collins. I was referring to the Hon Judith Collins and her reforms.

ASSISTANT SPEAKER (Hon Jacqui Dean): Thank you.

Thank you for your support and advice to get it right. So the changes have been really negative, and most Family Court lawyers, the use of them, the need for them, it reflects client anxiety about self-representation in such stressful times.

International studies in the UK, the US, and Australia show lawyers in the Family Court shorten cases, promote resolution, and cut costs, not the other way round. Like I say, when you look to the evidence and you’re looking for solutions and you’re wanting to improve outcomes for our most vulnerable, then you do what the evidence says is sensible. There’s no doubt the Family Court is strained and needs a reset, but it needs to recognise lawyers as part of the solution, and to this end, this bill refocuses and reinforces lawyers on their responsibilities to resolve cases efficiently and fairly and also safely. That’s what we all want to do: make sure that the outcomes are best for our most vulnerable. So I commend this bill to the House.

I rise on behalf of the National Party to speak in respect of the Family Court (Supporting Children in Court) Legislation Bill and to speak in opposition to this bill. The National Party is proud of its record in taking extensive reforms of the care of children regime in 2014. Those reforms were intended to shift the focus from in-court resolution to encouraging parents to reach agreement for themselves through out-of-court processes. Fundamentally, the focus must be on what is best for the child and children, and the key question is how to get there.

The key concern that the National Party has with this legislation is that it is bringing lawyers back into the process and involving them in the court process to a degree which will actually have an adverse effect on children. The National Party believes that other professionals with other skills more relevant to issues such as child development, psychology, or sexual violence would be better placed to address and deal with this.

I understand that other comparable jurisdictions were looked at. With this law, New Zealand will see more cases in court with more primacy provided to lawyers than in any of the several comparable jurisdictions that were looked at, by what I understand the select committee looked at.

Following the reforms in 2014, concerns were raised that some reforms have had a negative impact on children, parents, and whānau, and have exacerbated existing issues. The final report of the independent panel examining the 2014 reforms found that while the system on the whole is sound, there is limited participation by children in issues that affect them and there’s concern as to whether their voices are heard and whether their views are taken into account, both in and out of court. In court, a lawyer for a child is appointed to determine and represent the child’s views. The independent panel found that there was considerable variation in how lawyers for children approached that task.

This is the second of two Government bills which form part of the legislative phase of a long-term programme to change the family justice system. This is contrary to findings of the Ministry of Justice, which has been monitoring and researching the 2014 reforms since their implementation. The evaluation by the Ministry of Justice found that the system was fundamentally sound—i.e., that out-of-court processes are the most effective and sustainable solution.

Reintroducing lawyers will reinstate children’s adversarial experience of the courts, which the 2014 reforms aimed to stop. Out-of-court resolution is by far the most effective method of resolving disputes between parents, and when the matters are brought into court, it necessarily involves an adversarial process, particularly when lawyers are engaged in that process. It is our deep concern that it will not ultimately be in the best interests of the children involved, and it will not minimise harm to children from court delays and adversarial processes.

A significant concern, having been a lawyer in the courts, is the length of time it takes for hearings to happen, and I know from my own experience that many, many, many months, and sometimes much longer than that, can be involved for children and other participants in the court process in waiting for matters to be resolved. This, unfortunately, will not be solved by this bill, and having more lawyers and, ultimately, more court hearings will inevitably entail more delay and a longer time until children’s need are met.

I’ll just say that I wasn’t a member of the committee that looked at this, but I understand that in relation to child participation, the committee heard from multiple submitters that it’s not in every instance in a child’s welfare and best interests to actively participate. For example, where it involved confronting trauma or significant family acrimony, it could, in fact, be harmful. Additionally, overexposure to multiple professionals and to the court case can lead to a sense of responsibility for the child for the decisions made, and, ultimately, that should not be a burden borne by children.

So, regretfully, it is our positon that this is not the right approach to solve the issue for children, and it will ultimately lead to an extension in the court process that will not be helpful to solving issues in disputes between the parents over the best care and welfare of the children involved. So we do not support this bill.

Just reflecting on the previous speaker, Joseph Mooney, I think there wouldn’t be anyone in this House or, probably, anyone in this country who would think that by the time these issues get to court, then something hasn’t gone wrong, and it would be so much better if everything in life could be resolved without the intervention of lawyers and courts. However, that’s not the world we live in, and this bill is here to address those situations where those other systems—whether it be parenting, whether it be marriage, whether it be whatever could have intervened to stop this happening—has failed.

So what this bill is about is ensuring that once we do get to the stage where we are in court, we focus on the right things. Anyone that’s ever been in a Family Court—and I assume the previous speaker has been, with his profession; I know a few on this side will have been—you actually see the looks on the faces of the young people, particularly, or the children there who are bewildered by the surroundings. They are bewildered by the fact that they are really, by the nature of the beast, expected to take sides, and bewildered by the fact that everyone in the courtroom is often someone who looks very differently and sounds very different from those in the world that they have grown up in—that look of bewilderment means that you just understand that trying to make some sense, trying to allow those young people or children to walk out of there with some sense of, I would say, satisfaction but at least some sense that the outcome is something that is going to benefit them is, really, what this bill is about.

I think it’s important that we actually have a look at what it was intended to achieve: just to reinforce the expectation that a child could have reasonable opportunities to participate in the decisions affecting their care and welfare. As I look through the submissions on the bill, I’d probably look at the Law Society submission, who noted that it is now well recognised that the views of even very young children can provide important information for decision making in parental disputes. I think that probably of all the submissions, really, drew my attention. If we can build—and this is the attempt of this bill: to build around that expectation.

Of course, having the right lawyer—again, I reflect on the previous speaker. It’s a shame that we have to have lawyers at all, but I suppose I would say that as an ex - police officer. But, certainly, once we get the lawyers involved—that we get the right lawyer, people that actually do understand and, more importantly, can speak the language of the child. Again, my reflection or my memory of this system is having young people or children have matters explained to them and standing looking blankly—the inability to speak language that the child will understand. That is a very important factor, because this is often the last chance saloon. Getting it right here is going to have a complete and utter subsequent direction for this child in the future.

So it also is to reinforce the need for the court to recognise and respond appropriately to family violence, and particularly it has on children. We’re building a picture here where we must take cognisance that by the time people walk out of this court, there is at least some sort of judgment, some sort of satisfaction, and by focusing on the needs of the child, it will at least give some chance—the best chance—that it will be the right solution. So to that end, I have no hesitation in commending this bill to the House.