Alison Cleland: Children deserve a voice in court

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New bill curtails the court's power to get information needed to make good family law.

The bill removes the right of the child to legal representation in all but a very few cases.  Photo / Getty Images
The bill removes the right of the child to legal representation in all but a very few cases. Photo / Getty Images

Judith Collins' Family Court Proceedings Reform Bill is about simplifying processes and saving money.

The Minister of Justice believes that in most family law cases there is no need for lawyers and no need for "expensive" court reports. In particular, she has said children should not be involved in family proceedings at all.

If they do have something to say, she believes their parents can effectively represent them.

I represented adults and children as a lawyer in family proceedings before joining the University of Auckland's Law Faculty - family law and children's rights continue to be my areas of expertise. Experienced family lawyers know that separating and divorcing parents find it difficult to act rationally.

When their lawyer asks them: "What is your child's view of arrangements?" there are typically two responses. Either they believe the child shares their own views, or they believe it is best not to ask.

The bill removes the right of the child to legal representation in all but a very few cases where the court "has concerns for the child's safety". This means that in almost every family law case where decisions are to be made about where a child will live and whom she or he will spend time with, she or he will have no right to be heard.

That is a blatant breach of our international obligations under the UN Convention on the Rights of the Child.

The bill is a cynical cost-cutting move that says: "We don't care what children's experiences of family life are, and we don't care what they think".

And since family lawyers are to be stopped from presenting their clients' concerns to the court in many cases, how will the court know that there are safety concerns for a child?

Children bring a unique perspective to family law decisions. Where there has been domestic violence, children may be victims in two ways: by being subjected to physical, sexual or emotional abuse and by witnessing abuse of a carer. Those experiences must be heard and acted on by courts making decisions about their lives. To be serious about tackling violence against children, family law needs to do three things: state that violence against children will not be tolerated; make adequate legal representation available in court; and ensure courts have the information they need to make safe decisions. The reforms will make it impossible for our family law to do any of these.

Our current law says a family court must not make an order giving a violent party care of, or unsupervised contact with, a child, unless it is satisfied the child will be safe. The message given to domestic abusers is: your behaviour could damage your child, and you need to reassure the court that the child will be safe with you.

The Reform Bill would remove this message. Instead, the law would say that if the court is not satisfied that the child will be safe, it can order supervised contact. Instead of requiring an abuser to show that a child will be safe, the law would take a risk with the child's safety. There would be nothing to stop the court making an order for the violent party to have care of, or contact, with the child.

The bill curtails the court's power to get the information needed to make good family law decisions. Family law cases are messy. Decisions need to take account of whanau dynamics, psychological vulnerabilities, and cultural expectations. The court is as good as the information before it. As well as restricting lawyers' abilities to present cases comprehensively, the Reform Bill would restrict courts' powers to call for cultural, medical and psychological reports, and prohibit parties from presenting their own reports.

Particularly in complex cases involving violence, courts may lack vital information needed to make safe decisions.

The closing date for submissions on the Family Court Proceedings Reform Bill is this Wednesday, February 13.

The bill has the potential to put our children's right to a safe family life at risk. That is a breach of their human rights and of our international legal obligations.

I hope everyone concerned about domestic violence will join with me in opposing the bill.

The link below takes you to Parliament's website. It details the bill and how to make an online submission:

•http://tinyurl.com/arwfxcb

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