More Family Court changes that could affect YOU

In previous articles we discussed the Government’s plans to radically change the Family Court process by reducing the role lawyers play. In this article we continue that theme to discuss the effect of these changes on how children are represented in the Family Court.

Driven by a desire to cut costs, the proposed changes risk sacrificing essential safeguards that currently protect the rights of vulnerable people (such as children) in the Family Court process. Of foremost concern to family lawyers is a move to reduce the voice of children.

As a signatory to the United Nations Convention on the Rights of the Child, New Zealand is presently obliged to assure that children, capable of forming their own views, are given the opportunity to be heard in any proceedings affecting them. This international obligation is further enshrined in the Care of Children Act 2004. A Lawyer for the Child is typically appointed to ensure that the views of the children involved are taken into account by the Judge when any decision is made that affects the children.

Lawyer for the Child works independently of other parties. He or she is required to form a rounded view of the situation and advocate for the best interests of the child after interviewing, not only the child in question but also other family members or guardians. It is the role of Lawyer for the Child to put forward to the Court both the wishes of the child and also what may be in that child’s best interests.

As part of its changes, the Government sought to remove lawyers from many Family Court procedures. Minister of Justice Judith Collins proposed to reform the Family Court procedure into a three-track system: Fast Track, Simple Track and Standard Track.

Urgent applications to the Court (such as allegations of domestic violence) will be placed on the Fast Track. Parties on the Fast Track will be able to access legal aid and legal representation, and a Lawyer for the Child may still be appointed.

On the other hand, relatively basic applications will be placed on the Simple Track. Parties on the Simple Track will have no recourse to a lawyer or legal aid. The problem here is that parenting matters such as what contact children should have with a parent is deemed to be a “basic” matter and therefore, would be placed on the Simple Track. No Lawyer for the Child would be appointed.

Standard Track will deal with more serious or complex matters such as who has the day-to-day care of children or one parent’s desire to relocate with the children to a new region. Parties on Standard Track will not be eligible for legal aid or legal representation until the matter goes to a formal hearing. In Standard Track proceedings, a Lawyer for the Child may only be appointed after a defence has been filed.

In all proceedings in which children are affected, the law states that their welfare and best interests are paramount considerations. Nevertheless, the proposed changes will deny many children a say in decisions which shape their day-to-day lives. The proposal provided no replacement for the critical role that Lawyer for the Child currently plays in making sure that children’s views are heard not only at a hearing but also in the important stages leading up to a hearing (such a mediation).

Without Lawyer for the Child, there is a significant risk that Court Orders concerning children will not be in their welfare and best interests. This is particularly troublesome when the there is an unequal balance of power between parties, meaning that in some instances the outcomes for the children may prove unsafe.

 

November 2012