KEY POINTS:
We are all affected in some way by the impact of divorce and separation, if not personally, then as a community.
Last year 10,065 divorces were granted and an unknown number of parental separations took place. Our courts are busy, delays are rife and much criticism of the Family Court is aired.
Reforms to the system are imminent; submissions are shortly to close on the Family Matters Bill, introduced to Parliament in August.
This bill proposes a family mediation system, led by trained mediators, freeing judges for the more intransigent cases often involving abuse, violence and mental health issues. Only about 5 per cent of all cases of dispute proceed to a defended hearing.
Such reform is laudable but there are some glaring omissions. Although the bill proposes the inclusion of step-parents and grandparents in the six hours of counselling at present available to any couple facing separation, provision for child inclusion is omitted despite the fact that research is pointing to a viable process. This process may heavily reduce the number of cases which require more complex legal intervention, such as mediation conferences and the appointment of a lawyer for the child.
A child-inclusive resolution process is not only effective but also less costly and is family-centred in its approach.
There has been publicity recently about Jill Goldson's initiative for child-inclusive counselling when parents separate.
In her Families Commission-funded research, she reports a reduction of parental conflict, an increase in consent orders, a dramatic lowering of child symptoms and better communication between family members.
The timing of her intervention highlights the possibility that cases can be settled at the early stages of separation before conflict hardens and parents become polarised. This is where the children become caught dangerously in the middle. While acknowledging the importance of the inclusion of grandparents and step-parents in this new bill, the fact that children are not included is, she says, an anomaly.
The chairman of the Family Law section of the New Zealand Law Society, Paul Maskell, reports: "It has been an absolute frustration to the committee that counselling has not been provided for children under the Care of Children Act. Family Court lawyers and judges have tried to find ways around the problem to make it available and will be making submissions to the bill."
Children's views on matters which affect them (and what can affect them more profoundly than the separation of their parents?) is a principle enshrined in the United Nations Convention on the Rights of the Child to which New Zealand is a signatory.
Using a court-appointed lawyer for the child is the usual method of including the child's perspective under our act. No one would argue the principle of legal representation as an important recognition of the child's view when needed. But we know that by the time this is necessary, much damage to that child may have been done. The situation may well have been resolved far earlier had the process allowed the child to be included in counselling.
Goldson's research specifically points out that children talk about wanting to be heard by their family and not by a stranger who they sometimes meet only once.
Last year the national cost of lawyers for children worked out at $16.1 million; the cost of including children in counselling with their parents at the earlier stage of the conflict is estimated at $2.3 million.
Of no minor significance is the incalculable cost to the community of distressed children caught between parents who are unable to communicate with one another. Research at La Trobe University, Melbourne, suggests one in four children will be diagnosed with a mental health disorder in situations of ongoing parental conflict.
The Law Commission into Dispute Resolution, in 2003, recommended a major overhaul of the conciliation services but little has changed. Our Care of Children Act has not enabled children to be included in publicly funded counselling which would allow them to be heard by both their parents simultaneously. The bill before Parliament as it stands is not making this possible.
"Parents are often facing the worst crisis of their lives," says Goldson. "It can be difficult to know how to involve your children, but the children are, of course, already involved. Being part of the counselling process can help them and their parents so much."
Says a father of two young sons from her report, "The children got lost in the Family Court. We did the usual - counselling, lawyer for child and mediation, but the focus was only on patching up our terrible relationship. I didn't see my boys for so long. Now we share their care. Hearing what they had to say in counselling made us realise how much they were being affected. Now I am back in their lives."
We can only hope that our politicians will take on board such views.
* Moira Green is a North Shore barrister.
