Family Court (Supporting Children in Court) Legislation Bill

Members, we now come to the Family Court (Supporting Children in Court) Legislation Bill. We come first to Part 1. This is the debate on clauses 3 to 9, Amendments to Care of Children Act 2004. The question is that Part 1 stand part.

Thank you very much, Mr Chair. I just wanted to make a few remarks at the outset of the Part 1 debate on the Family Court (Supporting Children in Court) Legislation Bill. The purpose of the bill is, essentially, to make the process for the Family Court, for those going through the Family Court process, and especially Care of Children Act processes, more effective and efficient.

The history of this bill is that there were some changes made by the previous Government in 2014. My predecessor Andrew Little asked an independent panel in 2018 to assess the changes and the impact that those Family Court changes had, in effect, meant for the effectiveness of the process and the impact on the participants. One of the aspects that is discussed in Part 1 is in order to make all the process of Care of Children Act applications much more effective and efficient.

The theory behind the 2014 changes was that if you removed lawyers from the equation and allowed parties to a Care of Children Act application to try and sort out their differences that you would have fewer cases in court and therefore reduce the harm to both parents or caregivers or children. The reality was that we’ve seen the opposite happen because the number of what are called without notice applications for Care of Children Act applications has increased.

I just wanted to make sure that we gave some context to that, because before the changes that were made in 2014 we saw that there were a little under 7,300 without notice applications being filed. What we saw after the changes coming into effect is the number of without notice applications for Care of Children Act applications increasing to 12,182.

Now, obviously that increase, on the face of it, would be a concern to most. But some more investigation has shown that without notice applications actually take 2.1 times more court time than on notice applications. That means that the children involved in those cases and the parents involved in those cases in the increasing number of without notice applications are actually spending a lot more time appearing before the courts and it is taking a lot longer for those disputes to be resolved. Justice tells me that it takes on average 37 days to resolve a case through mediation, while if the issue is going through court it can take close to 270 days.

I actually think, having looked at the minority report from the National Party, that we actually do want the same thing: we want fewer people going through the court process and we want to make sure that that process is a lot more efficient in terms of time, because we’re reducing the harm on children when things aren’t resolved, and the stress and anxiety on parents.

The other aspect of Part 1 that I might speak about more in detail in another subsequent contribution is the ability to give children more of a voice and an obligation again on how we appoint the lawyers for the children and what we might have to prioritise within that, and then again, an obligation from the lawyers to make sure that issues are dealt with as expediently and efficiently and effectively from the point of view of the parties as swiftly as possible.

I do have some difference of opinion on some of the issues that were raised in the minority report about how we would go in affecting that, but we do believe making sure that we can give children a voice in the process and putting more demands on making sure we can make that process more efficient and making changes to the system where we can reduce numbers of without notice applications will be a starter to making sure the Family Court process is a much safer place.

Thank you very much, Madam Chair, and can I start by thanking the Minister in the chair, Kris Faafoi, for the initial exposition that he’s given us in relation to the Family Court (Supporting Children in Court) Legislation Bill, obviously geared towards Part 1. I thank the Minister for acknowledging the fact that likely everyone in this House, and certainly speaking on behalf of National, we on this side of the House, does support the intent that he’s articulated: of course, to reduce the stress, including as to time frames, faced by those in the Family Court, including and especially children. It’s not one of the areas of policy where different sides of the debate, I think, would have different aims that they want to achieve, ultimately, so we’re discussing, really, different ways to achieve that. So that’s a positive start, I think, to tonight’s discussion of Part 1 and beyond.

I did not personally have a hand in writing the minority view on behalf of National, within the select committee report—indeed, I didn’t sit on the select committee that considered the bill. However, I’ve read and understood those points, and I think that the Minister has done a pretty reasonable job of acknowledging those points. Obviously, he’s begging to differ in terms of the emphasis that he, on behalf of the Government, would place on those various points, but I think that they’re worth traversing nonetheless, so that all involved in this area of policy and practice can understand the good-faith intent of the Parliament as a whole to trying to improve the situation of the Family Court.

Looking at some of the particular matters that are being amended within Part 1, the first relates to clause 4, which would amend section 5 of the Care of Children Act 2004. I’d just like to draw the Minister’s attention to the wording of the bill, as it’s now back before the House, and just give him an opportunity to speak to the amendment whereby the Parliament will be saying that “a child must be given reasonable opportunities to participate in any decision affecting them.” I think, as far as it goes, that’s all pretty straightforward and, hopefully, non-controversial, of course the big-picture context being that the decisions should reflect the best interests of the child, not only in terms of their legal representation but, of course, ultimately, the outcome, the substantive matter that’s been brought before the Family Court.

I presume, in saying that, that the reasonable opportunities that are to be given—that that should be seen in the context of the circumstances that apply. Most obviously, the child themselves may or may not be capable of forming a view, or it might be a pretty limited view, reflecting the fact that they might be young or at a particular stage of learning development. If I understand correctly the annotation of the bill, some wording around that, about a child who is capable of forming their own views about a matter, that’s been struck out. So just seeking, in the first instance, some reassurance from the Minister that his policy intent is that the child be given a reasonable opportunity to participate but in a way that’s appropriate to them in the circumstances that he or she—that is, the child—finds himself before the court.

So at that point, I’ll pause and reflect on whether the Minister’s in a position to answer, but I think he’s indicating that I should continue to speak—yeah, OK—and maybe raise a couple of other points that he might care to respond to at the same time.

One of the points that the National Party members of the committee have raised in this differing view is to do with the ability of other players, for want of a better phrase, in the context of a court case, or outside a court case, potentially—and that’s really the point. So talking about overseas jurisdictions using psychologists or social workers and other professionals who are not in the position of being lawyers per se but nevertheless having an understanding of the legal process, but, more importantly, an understanding of what might be happening in a family and what might be happening inside the head of a child who finds themselves—or children, indeed—in the situation of having to navigate this complicated and no doubt often distressing scenario in which they find themselves.

So I’ll be keen to know if the Minister can reassure us that as a matter of policy intent to match what appears to be in front of us within Part 1 of the bill, there’s some thought being given to resourcing the court or, again, the legal system or the dispute resolution system more broadly to have such people able to feed into the system. The point that the Minister makes is noted and understood and to some extent reflected by the profession, that to avoid having lawyers involved might be a worthy aim, but, of course, there are ways to circumvent that. He’s spoken about the without notice applications. That’s all fine as far as it goes, but if we do not replace that expertise and that involvement by non-lawyers, then the fear, of course, is that we simply revert to the situation that in 2014 had needed some amendment, albeit not the kind of amendment that the other side is now approving of.

So I think at that point I’ll see if the Minister will respond to those points, and if he will, then I’ll look forward to those. If not, I’ll continue, but he is indeed.

Thank you. Can I thank Mr Penk for the issues that he raised. Very simply, in terms of the amendments to clause 4 that he mentioned, yes, it does reflect the policy intent.

He does raise a good point in terms of the subsequent issue that he raised and we have seen fit to amend the commencement date in order to make sure that there is a process to ensure that there is a framework in order to ensure the kinds of questions that he is talking about—about how we engage with young people, etc.—is done in a safe manner.

I acknowledge that while, I think, the close-to-70 submissions that the Justice Committee heard were pretty well balanced towards support or neutral on the bill, there were some issues raised about the safety of children within that process. And, in order to do that, there is a stocktake being done of how we do have frameworks in order to make sure that children can participate in that and that that is done in a safe way to make sure that when children’s needs are taken into account, especially when family violence is involved, we have the right expertise and frameworks in order to deal with that. Again, I want to reflect some of the concerns raised, especially when there was trauma or family violence involved. Some submitters said that involving children in that process can be re-traumatising but that it could be managed. I think that is why undertaking the stocktake and audit to ensure that there is a safe framework for that to happen will ensure that children will still be able to have their views expressed as to what they want to see as a decision, not to make the decision, in order for the process—and, hopefully, not a court process—to determine what is in their best interests.

Thank you, Madam Chair. Thank you for the opportunity to take a call on the committee stage of this bill. I have a couple of additional questions for the Minister in relation to clause 7, which is in relation to the new provision, which says that “When appointing a lawyer to represent a child, the court or Registrar must, so far as is reasonably practicable, appoint a lawyer who is, by reason of their personality, cultural background, training, and experience, suitably qualified to represent the child.”

Now, a number of submitters submitted on this point and made some submissions around what they felt was a lack of training or a lack of skills of lawyers for children when it comes to these areas. So I guess the question is: it’s all well and good to put a requirement on the court or the registrar to say that they must do their best to try and ensure that the lawyer for the child has all of these things, but the reality is, from a skills perspective—the argument put from submitters was that there’s not necessarily the right skills base actually amongst lawyers to actually be able to adequately fulfil this. So there are two questions to the Minister.

The first one is: is there going to be any additional resourcing or support given to try to actually ensure that there is adequate training for lawyers so they’re able to best provide for children in this way, to actually give effect to this clause? And I guess the second one is whether the Minister considered whether other professionals who do have skills and training, working with children, could actually do that in a better way, to be an advocate for the child rather than necessarily having to be a lawyer as well. So a couple of questions there. I look forward to the Minister’s response to those.

Thank you, Madam Chair. Very good questions, so thank you for asking them. It does go back to the stocktake process that I just mentioned to Mr Penk. I think, upon reflection, around making sure that we do have a solid framework—I think that was a valid concern raised by, I think, the Law Society during that select committee submissions to say that in some instances, depending on place and time, the ability of someone to have the requisite skills may not necessarily be available. I do think there is time available now, while we do some of the work on the stocktake and while the provisions of the bill will come in, when that stocktake is in place and the resources are ready to be able to do that.

Further to the point that the member has raised, in order to reflect the best interests of the child, of the lawyers acting on behalf of the child, I do think it is important that we do have an obligation in the process for the lawyer to understand all the vagaries that the child may have. And if that means understanding the cultural context of which they are coming from, I think it is also important. I do think, again, with the aim of the bill trying to make sure that the efficiency and effectiveness of the Family Court process is enhanced, that if we are able to do that, we’re able to do that in the context of what is best for the child and what both parties mean. We may be able to either skip the court process—which I think everyone agrees would be the preference—in order to get a quick resolution and understand what is best and have two parties that agree, as opposed to dragging a court process through 270 days, which is happening more often now, and, I think, putting families and children in more vulnerable positions for longer than when these changes were made in 2014.

Madam Chair, thank you, and thank you, Minister. The ACT Party does support this bill, but I have one question, and that is also on clause 7. It’s in regard to looking at the appointment of a lawyer whereby the statement reads in clause 7(2): “When appointing a lawyer to represent a child, the court or Registrar must, so far as is reasonably practicable, appoint a lawyer who is, by reason of their personality, cultural background, training, and experience, suitably qualified to represent the child.” When I gave my second reading speech, I made the point that I think it’s important that we get the right person representing the child. But I have concerns when we start legislating about personality and cultural background. I’ve tabled an amendment whereby I request your thoughts upon removing the words “by reason of their personality, cultural background, training, and experience”. So it would actually read: “appoint a lawyer who was suitably qualified to represent the child”. Then that way we ensure that it is the best person for the child, and any judge or appointee would be able to actually make sure that things like personality and cultural background are automatically taken without it having to be legislated.

So I’d just like to leave that in your court there, Minister, because I would like to fully support this, but do have concerns that we do not have the expertise within our courts and, therefore, may not be getting the right person to represent the child. Thank you.

Kia ora, Madam Chair and Minister. Look, in taking this call this evening, I’m cognisant of the fact that the Minister does not have experience of practising in the Family Court, and, therefore, the answers are in that context. So I’m going to refer to clause 4 of the bill, Minister, where it talks about inserting section 5(g), which says that “a child must be given reasonable opportunities to participate in any decision affecting them.” Minister, I put it to you—mindful that I wasn’t on the Justice Committee and I didn’t hear submissions, mindful that I have been counsel for children, mindful that children being burdened with the responsibility of making decisions as affect them, subject to their age, is detrimental to their welfare and best interests. So, Minister, could you please answer: why is it that it’s considered that a child should be making decisions as affect them when there is proven psychological evidence that that is detrimental to a child for them to be burdened with that responsibility, when it is actually the lawyer’s duty of care and role to be the voice, and it is the judge who makes the decision, not a child participating in that decision making?

I thank the learned colleague for making that submission. I would, again, ask her to look at the clause. It is not asking or enforcing a decision from a child. It is, in essence, allowing an opportunity for the child to participate in that decision process.

Again, as her colleague pointed out, I think most people would want to ensure that there is an opportunity to understand what is in the best interests of the child in a care of children application, and the purpose of this bill is to give the effective and efficient ability for that to happen. We believe it is important to make sure we can do that quickly. I’ve mentioned the delays in the Family Court process because of the without notice applications.

Making sure that we’re giving that opportunity is, we think, pretty fundamental to making sure that it can happen. It is not the child who makes the decision, but we think it’s important that the child does have a voice in that process.

Accordingly then, Minister, would it not be better to have included in section 5(g) in clause 4—rather than “a child must be given reasonable opportunities”—that the onus is on the voice or the representative of that child to do so, and not the child presumably?

I think that goes to the wider context of the changes within the bill. As one of her colleagues mentioned—Mr Brown—the change is where we are looking at a best fit for the appointment of a lawyer to understand the situation of a child to ensure that we can understand and express what the child would like to be taken into consideration during the process and what the child’s best interests and perspective are, and making sure that we have the person to best represent that, as the member may have just outlined.

Thank you, Madam Chair. I’m just keen to get from the Minister, please, in relation to clause 7, which is, coincidentally, amending section 7 within the Care of Children Act 2004, which is, of course, legislation that’s being amended by this Part 1—I’m just curious to have the Minister’s comments on the record in relation to the appointment of the lawyer. The philosophy seems to be that it should be a person who is suitably qualified to represent the child, and I think that certainly makes sense as far as it goes, and, of course, a number of criteria are outlined for that—personality, cultural background, training, and experience. Our friend from the ACT Party has stated her view on behalf of ACT that there should be a more general qualification or appropriateness standard applied, as opposed to being quite so prescriptive as that.

My own concern is really more to place on record, I think, what certainly I hope we would all agree, which is that the representation of the child is the key factor in all of that, and I make that comment in reference to the select committee discussion where the select committee members turned their mind, I think reasonably, to the question of whether there might be discrimination alleged against the lawyer who wasn’t appointed to represent a child. I was pleased to see that the select committee ultimately decided first of all that that wouldn’t be a breach of the lawyer’s rights, but I would hope more fundamentally as well that the feelings or the professional opportunities of the lawyer involved are much less important than the child receiving the best possible representation that she or he might have, to whatever extent they might have an involvement in that and to whatever degree different qualifications or characteristics might be taken into account. So, really, placing that on record in my own case and inviting the Minister to state that as well, because I feel as though that represents an important philosophical point about the legislation, even if it may or may not make a practical distinction in terms of how it’s interpreted going forward.

Thank you, Madam Chair. Can I thank Mr Penk for reinforcing the committee’s point. The thinking in and around personality was to ensure that we had someone in a position to represent a child who could build a rapport with that child, and a personality to be able to build a rapport with a specific child, to be able to represent them as effectively as possible. As Ms Hipango has mentioned, I don’t come from a legal background, but personality does go a long way in building a rapport with individuals, especially in situations where they may be under extreme pressure, to make sure that we can reflect their views in the Care of Children Act process.

So I acknowledge the concerns that were raised in the Supplementary Order Paper from Nicole McKee, but in order to make sure we have a full picture of what we’re trying to achieve here, not only just being trained and suitably qualified to represent the lawyer, again, also having an understanding of some of their cultural competencies, their experience, but also that personality and getting the right fit. I think, as we can all imagine, there would be a range of children in different situations and willingness to be able to partake in a Care of Children Act process. Some may be freer to participate in that and give their views. Some may need a little more sensitivity and coaxing to have their views expressed, and I think that’s some of the thinking behind why there is such a broad description within clause 7 as it stands.

Thank you, Madam Chair. Just a couple more small points from me. I don’t suppose I’ll need too much time to make these additional points in relation to Part 1, but, really, again, just for the sake of the record as much as anything. Remaining on clause 7, amending section 7 of the legislation, in relation to the appointment of a child, I see that’s to be someone who is, by reason of various different factors, suitably qualified to represent the child. And it seems to be, just reading that on the face of it that it’s intended that it will be a person who is appropriate to represent the child in a very broad sense qualified, I suppose we could consider to have a particular meaning about legal qualification, coming as it does in the context of training experience, but my expectation and hope is that that’s a very broad kind of understanding of appropriateness, so I’ll just sort of flag that small point on the way through.

The second is actually not dissimilar, but it’s in clause 8 of the legislation, so that would insert a new section 7AA, and this is headed: “Lawyer appointed to represent child must explain proceedings to child”. There it’s talking about the age and maturity of the child, and the context is that an explanation is to be given in a way that the child is most likely to understand. I think that the word “maturity” really would sort of cover both aspects, because the maturity could go to not only their actual age but their ability to comprehend, maybe taking into account any sort of learning difficulties or developments that the child might have. So if there’s any further comment the Minister can make on that, fine; if not, then happy to sort of let the words take what I would consider their ordinary natural meaning, and therefore sort of pass into the record on that basis.

My third and final point—and I did say that these were relatively small, but potentially important none the less—relates to clause 9, and this is the duties of lawyer when giving advice. If the Chair will indulge me, I’ll just read these words, because I think they’re important: “(2) Before commencing a proceeding under this Act, a lawyer must take any steps that, in the opinion of the lawyer, assist in enabling the issues in dispute to be resolved as safely, fairly, inexpensively, simply, and speedily as is consistent with justice.” The reason I highlight those is that it seems to me these are absolutely consistent with existing legal ethical obligations. I would like to think moral obligations as well would come into the reckoning of any person who calls themselves a lawyer for a child, but, certainly, as a matter of professional standards, these are the kinds of considerations that a lawyer should take into account anyway. So I’m not sure that that adds terribly much by spelling it out, but I also don’t think it does any particular harm. But if there’s anything obvious that I’ve missed in that regard, then I’d invite the Minister to add to that.

Of course, all of this is in the context of that bigger picture question of the lawyer’s role as distinct from the role of others and the centrality of that in the legal process, so that’s a bigger picture question which will only be resolved in time, I suspect. I hope, for the sake of all those who are caught up in the Family Court situation, including and especially children, that it does certainly improve from the situation currently, and, indeed, the situation that was faced in 2014 with delays being obviously quite damaging to many family situations in the development of the poor small persons caught up in the process. So any comments on those specific points we would welcome, otherwise that’s probably about as much as I would seek to contribute under the heading of Part 1.

Well, I thank Mr Penk for his contributions to Part 1. Quite simply, there’s nothing like a bit of reinforcement in terms of trying to ensure that we do make the system as efficient and effective as possible. I’m not suggesting that the duties of lawyers are the overriding reason as to why there are delays in the court process. Obviously we want to introduce care of children lawyers at the beginning of the process to be able to navigate those early stages quicker, because, as I mentioned earlier, mediation at the beginning can make about 250 days difference in the resolution. I think there’s also a wider issue of the management of cases within the court system that will need addressing at some stage, and a coming together of these issues, I think, will get us to a point where we have a system that is, on behalf of New Zealanders, the most efficient system that takes the best interests of all parties involved and does the least harm. And that’s what clause 9—I think it was that the member was alluding to—goes in some way to reinforcing.

I think there is some general concern in some of these processes, whether by tactics or by direction, hearings can be delayed or put off in the court process. And, again, the duty on the lawyer to ensure that that doesn’t happen, I think, will ensure that especially children in the middle of these processes can have a resolution to a very difficult period in their lives.

Thank you, Madam Chair, and thank you, Minister, for answering the question that I put up earlier.

I go back to clause 7, Minister, around the personality and cultural background. You gave a very good explanation there, and I thank you for that. I would’ve thought, though, Minister, that those qualities would already be looked upon by the judge in appointing a counsel for the child. My question to you is: should a person who is not deemed to be culturally appropriate for that child is appointed, and there are concerns later raised about that person not having the personality or the cultural background, could this—or had you thought about whether or not it could incur further delays as a new counsel for the child is appointed, if that indeed ends up being the case, because the appropriate person was deemed not to have been found in that first instance?

Thank you, Madam Chair. I think, again, a valid question. I think the heart of that lies in some of the earlier language, which is as so far as reasonably practicable. I think most courts would make an effort to make sure that the best fit would be there for a lawyer of the child. As you said in your submission, you would have expected or assumed for that to be happening already. I believe there is no harm in making sure that is explicit and, again, in an effort to make sure that there is care and effectiveness for the child, to take into consideration what is best in terms of personality, cultural background, training, and experience.

I do envisage there will be some situations where that may not be possible—where especially in smaller rural areas or provincial towns where the pool of lawyers that may be available to do the work in a timely manner may not necessarily be available. That, again, the court might see that best fit is made. But I’m confident that making it explicit within the bill that these factors, where it is practicable, are taken into account, and where best efforts are made to make sure that we do have someone appropriate for the child, will be more effective than this situation that we have at the moment.

Minister, just to labour the point in relation to the appropriate, it appears to be the qualities of the lawyer as opposed to the competencies—could the Minister please explain, when appointing a lawyer to represent a child, that the Family Court has complex issues and a variety of proceedings within the Family Court? Accordingly, would the Minister not consider it appropriate that there is a match of the lawyer’s skills and competence to the specific case requirements, in addition to those factors of personality, cultural background, training, and experience to suitably qualify to represent the child?

I put it to the Minister to consider that further to what is outlined in clause 7, subclause (2) proposed that in the appointment of a lawyer, the court must also consider the match of the lawyer’s skills and/or competence to the specific case requirements, bearing in mind that the Family Court not only deals with domestic violence, it also deals with custody, guardianship, separation, access, contact, care and protection, and welfare—a number of issues—which adds to the complexity and, therefore, ought to reflect upon the skillset and competence of the lawyer being matched to the specific proceedings to represent the child. What is the Minister’s view on that, please?

It is pretty clear because at the end of the clause, they’re “suitably qualified to represent the child”, and if that person isn’t qualified to represent the child in that specific instance, then I’m pretty sure that the court will adjudicate that that person isn’t the right person to represent the child. I would also reflect that the independent panel recommended the framing of the clause, and I’m also told that the clause reflects the practice note and also aligns with—and I haven’t seen this section—section 159 of the Oranga Tamariki Act in order to make sure there is consistency across pieces of legislation. So, to answer the member’s question, I don’t think the clause and the point that she is making are mutually exclusive. I think, if the person is suitably qualified to represent the child within that scope of practice, then the court will make a decision that they are the suitable person in that instance.

I move, That the question be now put.

The question is that the question be now put. The question is that Nicole McKee’s tabled amendment to clause 7 be agreed to.