Can Family Dispute Resolution protect children from abuse and neglect?

Written by Denise Evans Senior Dispute Resolution Practitioner at FairWay Resolution.

The care and protection of children in New Zealand is a paramount concern. They are our future and even more importantly they are going to be parents of the next generation.

So it is encouraging to see so much public discussion on their welfare around the establishment of the new Ministry for Vulnerable Children, Oranga Tamariki and proposals to amend further the Children Young Persons & Their Families Act 1989.

From 1 April this year the Ministry becomes the agency responsible for the care and protection of children who have been abused or neglected or at unacceptable risk of such abuse or neglect.

Its establishment is part of a wider initiative to deal with the serious rate of child abuse, neglect and death of children in New Zealand.

As a Family Lawyer with over 20 years’ experience representing children and now a Family Dispute Resolution mediator with Fairway Resolution, I am acutely aware of the seriousness of this issue; and how early intervention through mediation can result in better outcomes.

The first task of a Family Dispute Provider under the Family Dispute Resolution Act 2013 is to determine whether a case is suitable for mediation.  That can depend on many different factors including information about what has happened in the family, the experience of the mediator and the willingness of the parties to participate in family mediation. 

Mediation is most certainly not a forum that allows serious concerns about child welfare to be ignored or minimised or perpetrators of serious violence and harm to avoid culpability. 

As part of consultation in the lead up to the formation of the new Ministry, we have heard the voices of some of the children who have been in state care. There can only be positive impacts for the people who are making decisions that affect children, when they have some insight into their experiences.

But we need to do more to ensure our children are protected and cared for appropriately, which includes being clear about historical issues.

On the 14th of March 2017, Te Mata Law lodged a claim on behalf of three claimants with the Waitangi Tribunal calling for an independent inquiry into alleged ill-treatment of children in state welfare that disproportionately affected Māori.

Auckland academic Andrew Erueti, who is supporting the claim, has reportedly stated that the true extent and detail of the violations are unknown because the Crown has failed to establish an independent and comprehensive inquiry into the matter. He believes that until the issues are “investigated independently, there is a risk that the same mistakes could be made again”.

Ultimately, the claim calls for a comprehensive independent inquiry to “inform current and future child policy and legislation, including the Oranga Tamariki Bill before Parliament”.

The Children, Young Persons, and Their Families (Oranga Tamariki) Bill initially proposed the removal of whānau-first placement protections for tamariki. This would have been a major change in direction. 

However, after consultation, Minister Anne Tolley has agreed to change that proposal.   Acknowledgment goes to the Minister for rightly putting the care of children as a primary consideration, especially when there have been so many children hurt and killed within their family/whanau.  It is testament to the democratic process that this provision will not proceed and therefore the original intent of the CYPF Act will remain intact.  

But we must do better!  The question still needs to be answered as to how the State can care for children when, for whatever reason, they are removed from the care of their parents.

The reality is that the State cannot care for children because children need people who are unconditionally prepared to take care of them.  In an ideal world, children would be cared for by their parents and guardians. Their care would not be the responsibility of the state and a child or children would be safe in that care.

The well-known and oft-repeated African proverb “It takes a whole village to raise a child” could be said to support the proposition that the State has a role in children’s care.  It could also be said to contradict the principles set out in Section 5 of the Care of Children Act (“COCA Act”) which makes parents and guardians primarily responsible for making decisions about guardianship matters and care arrangements for their children.

COCA is the legislation which moderates the autonomy of parents especially when parents are not caring for children whilst living together.  It is possible for the Act to apply when parents who do live together have a dispute about a guardianship matter, such as medical treatment, enrolment in school or religious upbringing.

COCA does anticipate that there will be involvement of a wider group, making it clear a child should continue to have a relationship with both of his or her parents, and:

  • that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened (section 5e);  and 
  • that a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened (section 5f).

In the three years during which FairWay Resolution has been involved in providing family dispute resolution services (FDR), we have received many calls for assistance from family members who are stepping up to care for children when parents may not be available or willing to undertake care.

We have also received calls from people who have been given guardianship and day-to-day care of children under the COCA Act when orders made under the CYPF Act have been discharged. 

We have had calls from grandparents worried about their grandchildren in circumstances where the concerns do not meet the threshold for intervention by the State. These are generally people who would need to make an application to a Family Court to resolve issues affecting the care of children.

An experienced FDR mediator is able, through the triage process of determining whether or not a case is suitable for mediation, to identify who the helpful people might be and bring family together. In the context of mediation, they can discuss issues and engage in a discussion which, in the words of the FDR Act, ensure “that the parties' first and paramount consideration in reaching a resolution is the welfare and best interests of the children”.

The earlier that parents, caregivers and others involved with the care of children can be involved in this process the better, and the greater the chance for plans to be developed that, rather than blaming and finding fault, focus on genuine forward thinking around improving the lives of children.

The balance between the state meeting its obligations to care for and protect the vulnerable and a families’ responsibility for the care and protection of its tamariki is a challenge all society must grapple with. Family Dispute Resolution is one of the valuable tools that contributes to striving for that balance and is helping to manage the stresses and strains of family interaction so as to lessen the risks of unacceptably tragic child abuse and neglect in New Zealand.

For more information on Family Dispute Resolution click here