As anyone working in family law or who has had any interactions with the Family Court in New Zealand will know, the Care of Children Act 2004 (COCA) sets out that a child’s welfare and best interests are a paramount consideration in child arrangements such as day-to-day care of a child and contact with a child.
Key sections of of COCA are
- “a child’s care, development and upbringing should be primarily the responsibility of his or her parents and guardians” (section 5(b)), and
- “a child should continue to have a relationship with both of his or her parents”. (section 5(e)).
A huge emphasis is put on this by Family Judges sitting within the NZ Family Court, as well as lawyers appointed to act as Lawyer for the Child (L4C). These parties encourage and try in as many cases as possible to maintain a child’s relationship with their parents, and wherever possible aim to get a child (back to) living with their parents if that is not currently the situation.
However, this presumption that a child is best placed with his or her parents is on its way out in United Kingdom law. Hailed as a groundbreaking change in UK family law, and as a victory for children facing domestic abuse, existing legislation will be repealed so that the Family Court no longer works on the presumption that a child having contact with both parents is necessarily in the best interests of that child. Specifically, the relevant parts of the Children Act 1989, which currently state that Courts in England and Wales should make decisions on the principle that a child should have contact with both parents unless that child could be at risk of harm, will be repealed.
The change comes after 10 years of campaigning by interested parties, where concerns have long arisen over the rights of abusive fathers being put before the wellbeing and safety of children. One heartbreaking case stands out, involving two young boys, Jack and Paul Throssell, whose father was granted contact with the boys, despite having hit both them and their mother before. The boys’ mother repeatedly stated that the father was a perpetrator of abuse and that the children were at risk of harm seeing their father, but the children were nevertheless ordered to spend time with him by the Family Court. On one such visit, their father proceeded to lure the children to the attic, barricaded the house and started 14 fires, resulting in the tragic death of the boys.
Which leads us to question – is this opening the door to NZ following suit and repealing the sections of COCA which similarly state that children should have a relationship with both of their parents? We know from history that much of NZ law has its origins in UK law, not least stemming from NZ’s position in the Commonwealth and the fact that much case law is adapted and implemented from UK Court decisions into NZ law.
New Zealand too has had its fair share of cases where children have suffered abuse and neglect at the hands of their parents. One such recent and high-profile case being that of Tom Phillips, who was knowingly on the run with his three young children for almost four years. It’s almost certain that taking the children out of school, failing to provide them with a stable home and exposing them to harmful weapons like guns, as well as involving them in shoplifting expeditions, would not be considered as being in the best interests of those children, despite the fact that they were with their father the whole time.
Granted, COCA does also state at s5(a) that, “a child’s safety must be protected and, in particular, a child must be protected from all forms of violence from all persons, including members of the child’s family”. Also, to highlight that Tom Phillips may not have been granted care of his children by the Family Court before vanishing with them. However – concerns still remain over how s5(b) and 5(e) of COCA are applied in reality and how much weight they are given. The following are very worrying facts that apply to children in NZ, as raised by an expert in the Family Court, Carrie Leonetti (Associate Professor in the Faculty of Law at the University of Auckland and an expert in the Family Court) :
- NZ has some of the highest rates of domestic violence and child abuse in the world.
- Approximately 80% of cases involving care and contact with children are between a domestic violence perpetrator and victim.
- The NZ Family Court has a long history of ignoring the relationship between partner violence and child safety, especially threats, intimidation and coercive control, and awarding care of children to violent fathers.
- The Family Court does not perform evidence-based risk assessments before deciding whether to issue Protection Orders or allow unsupervised contact between violent parents and their children.
- Alarmingly, domestic violence perpetrators are twice as likely to be awarded care of their children than men with no history of violence, and domestic violence perpetrators who accuse their victims of “alienating” their children from them are four times more likely to be granted day to day care of their children.
All of which raises terrifying questions over how much heed is actually then being paid to s5(a) of COCA, which is supposed to protect children from violence.
Ultimately, it remains to be seen whether this is a change which NZ too is willing to implement. The UK repeal of legislation comes after many years of research into child abuse, in particular fathers who were granted contact with their children by the Family Court despite evidence of abuse. There has been heavy campaigning by The Women’s Aid Child First campaign, which focused on 19 children who had been killed in circumstances involving unsafe child contact, as well as an expert panel created by the UK Ministry of Justice.
In NZ this change would need to come from Parliament, being the body responsible for all legislative change, and only time will tell.
