Child participation – the status quo and where to from here?

Written by Will Story for the Family Advocate, Autumn 2022

Many consider the right of a child to have a say in decision making affecting them a golden thread of the family justice system in New Zealand. After all, New Zealand is a party to the United Nations Convention on the Rights of the Child (the Convention) which quite clearly sets out our country’s obligations to our children. But what does our domestic statute prescribe when it comes to child participation in family justice matters, and how consistent are our practices? According to Dr Deb Inder, a family law barrister currently conducting a stocktake of child participation practises in the family justice sector for the Ministry of Justice, there is fragmentation in our family law policy and inconsistency in the approach to children’s participation practices which while once considered world leading, are now not so much.

Far from being woven into the fabric of our family justice system, it seems our current laws have left a little too much leeway for inconsistent practices around child participation to develop. This observation has been made previously. The independent panel tasked with reviewing the 2014 Family Court reforms observed in their 2018 report Te Korowai Ture ā Whānau that child inclusive practice was developing in an ad hoc way and that children’s right to participate was not provided for in the Care of Children Act 2004 nor the Family Dispute Resolution Act 2013. Furthermore, the panel commented that both Acts are inconsistent with the approach under the Oranga Tamariki Act 1989. The report directed that the Ministry of Justice in conjunction with relevant experts and key stakeholders undertake a stocktake of appropriate models of child participation, including at Family Dispute Resolution (FDR), as a priority. In response to this, the Government introduced the Family Court (Supporting Children in Court) Legislation Act (the Act), receiving Royal Assent in August 2021. Fast forward to February 2022, and that stocktake is underway. As a nationwide supplier of FDR, I was fortunate to be consulted by Dr Inder who has now shared the results of her review of the relevant literature with family justice stakeholders. Dr Inder’s final report is due to be completed by the end of March 2022.

The independent panel’s concerns regarding child participation focussed on Article 12 of the Convention which guarantees that the right to participate is an inherent right of every child. According to the panel, this right is not expressly provided for in our legislation. The Care of Children Act 2004, our key statute governing care of children matters provides that a child must be “given reasonable opportunities to express views on matters affecting them.” “Reasonable opportunities” are discretionary, it would seem.

From my own experience as a Family Court lawyer, I have seen a variance between Courts and Counsel as to what is “reasonable” in practice. What impacts on “reasonable” may be affected by things such as urgency, hearing availability, Counsel availability (noting many Lawyers for Child/ren operate busy practices in which they are juggling multiple files and often have limited windows for meeting with children), the availability of the child/ren, age and stage of the child/ren, and third-party views or information which may influence Counsel and/or Judicial decision making (such as views conveyed by report writers). As a result, some children will not be given their “inherent right” to participate. This can also be true for some on notice applications which do not result in the appointment of a Lawyer for Child/ren or may resolve by consent shortly after filing and prior to the appointment of a Lawyer for Child/ren.

Recent research indicates that for those children who are given an opportunity to participate, some feel their views are used selectively or inaccurately, and therefore feel dissatisfied with the overall process.

In Family Dispute Resolution (FDR), each supplier offers a process in which a child’s voice may be captured. Voice of Child Specialists or Consultants are now commonplace in FDR. Unlike the Lawyer for Child/ren, their role is generally limited to reporting views, not advocating. However, the models operated by each supplier are different. And participation is reliant on the consent of both parties to the mediation (mediation is, after all, a consensual process). Currently, therefore, it is the parents rather than the child who determine whether the right of the child/ren is recognised. While this is not necessarily consistent with the Convention, it is consistent with the principle that a child’s care, development and upbringing should primarily be the responsibility of his or her parents or guardians – one of the key principles of the Care of Children Act 2004. Encouragingly, we are seeing an increasing number of parties coming to FDR requesting the appointment of a Voice of Child. This indicates to me that there is a growing level of trust in the Voice of Child process which over time is embedding itself as a key feature of the FDR service. It also indicates that the message is getting through – that parents should be listening to their children’s views. I often hear from mediators just how helpful a particular Voice of Child was to a particular mediation. Having another voice in the room (an independent mouthpiece for the children) can be a game changer where parties are stuck in their own rhetoric.

Many practitioners fulfilling the Voice of Child role are also Lawyers for Child/ren. This can be problematic, particularly given the scope of the Lawyer for Child/ren role is generally much wider than the Voice of Child. As a result, some Lawyers for Child/ren find the concept of meeting with children and reporting their views within 3 hours (the usual timeframe provided under the FDR model) understandably difficult – especially so where there are more than two children. Others struggle not to stray into an advocacy role within the Voice of Child brief. Realistically, the restrictive time available to a Voice of Child under the FDR funding model is a weakness and does raise wider ethical considerations. That said, in my observation of practice, the extent to which child participation in either FDR or Court occurs and is successful within the current model is ultimately only as strong as the chosen representative and their skill in working with children. Encouragingly, section 7 of the Act when it comes into force will  place an obligation on the Court or Registrar to, 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.” This is a positive step forward.

When FDR was established in 2014 it was envisaged that child-inclusive mediation would evolve, but no formal models were developed. Of concern, the Act makes it incumbent on FDR providers (mediators) rather than suppliers to ensure children are given the opportunity to participate, where the FDR provider considers it appropriate. Many submissions were received by the Select Committee highlighting the issues with this, which mainly surround the unsuitability of an FDR mediator (some of whom do not have the necessary expertise in working with children) to make this decision. Even assuming FDR mediators did have the training and expertise to make this decision, the discretionary element of the legislation doesn’t exactly close the void between New Zealand and the Convention.

As well as a void between us and the Convention, a lack of specificity in our own laws may be responsible for variance in practice across key players in the family justice system. Wherever the stocktake lands, what we need is consistency in our approach to child participation – not just in our family law policy but in our objectives for meeting with children.  A ubiquitous approach to child participation may be applied across all the sector – whether it be in Court or FDR – so that we can ensure our children’s voices are heard by the right professionals and conveyed in a consistent manner that takes into account our own domestic needs (including tikanga Māori). The stocktake currently being completed by Dr Inder is timely and will, no doubt, provide an invaluable insight into how child participation occurs but most importantly how it may be improved in Aotearoa New Zealand.

About the author

Will Story BA LLB (will.story@fairwayresolution.com) is Operations Manager of Family Services at Fair Way Resolution Limited.