Dialogue: Our laws are designed to protect at-risk children

New Zealand's custody and access laws provide some of the best legal protection in the world for children placed at risk by domestic violence. It is to be hoped that the review of the Guardianship Act will not undo this progress and place the safety of women and children in jeopardy.

The New Zealand law is, in fact, better than any other internationally, according to Marianne Hester, co-director of the International Centre for the Study of Violence and Abuse and head of the sociology and applied social sciences research unit at the University of Sunderland. She says Britain is examining the introduction of similar protections.

Ms Hester cautions against changes that would affect section 16B of the Guardianship Act, which requires judges to assess safety factors before awarding custody or access to a violent parent.

The law was introduced in 1995 after Tiffany, Holly and Claudia Bristol were killed by their father. He had been given interim custody three months earlier, although the Family Court had previously granted their mother a non-molestation order and she had a further protection application before the court.

Ms Hester praises our law for providing detailed guidance about domestic violence issues, noting that 45 per cent of female murder victims in Britain are killed by their partners or former partners.

Children are often witnesses of domestic violence and may also be victims. The public debate in recent months about this country's horrific record of child abuse and violence against women has, it is to be hoped, dispelled the myth that domestic violence is rare and should not figure largely in deciding children's futures.

In 1998 alone, police were called to more than 34,000 cases of family violence, and that is only the tip of the iceberg. In most cases, there will be no outside intervention. This stark reality makes the debate over custody and access laws all the more concerning.

The Government in August released a discussion paper called Responsibilities for Children: Especially When Parents Part, and called for public submissions by the end of this month.

Domestic violence is virtually ignored in the paper. It is mentioned only in passing at two points: section 2, which discusses the objectives of custody and access laws, does not even mention keeping children safe as a goal.

Reported comments by the Social Services Minister, Steve Maharey, when the paper was released are also worrying. Mr Maharey said the right of fathers to have access to their children was likely to be high on the agenda for change. At three points in the article comments were attributed to him referring to fathers' rights and stating that the law as it stood constrained or prevented some fathers from having relationships with their children.

This is simply not correct. Section 16B of the Guardianship Act is designed to protect children. The law will intervene only if children are at risk. The desirability of ongoing contact between children and their fathers is deeply embedded in the Family Court's philosophy. Once violence allegations are proved, the court will examine what safeguards can be put in place to allow access while still protecting children.

Supervised access might take place at first. The father will see his children at a centre such as Barnardo's or be supervised by a family member or friend. If the initial visits go well, time will be extended and there will be a gradual move to unsupervised access.

The law is gender-neutral. Judges will put in place exactly the same protections when dealing with a violent mother.

Further, statistics demonstrate that in contested custody cases, custody is awarded in almost exactly 50 per cent of cases to the mother and in 50 per cent to the father.

However, the reality is that the overwhelming majority of violence in society, both within and outside the home, is perpetrated by males. Glossing over this unpalatable fact does no service to anyone.

Ms Hester says that in Britain the approach has been that "any father is good enough for a kid." She says that is why the New Zealand legislation is so important - it makes the child rather than the parent the central focus. "Your legislation looks carefully at some of the safety issues of being a good parent because any parent is not necessarily a good parent."

Some of the men's groups debating custody and access laws are letting both themselves and other men down. Mana Men's Rights Group spokesman Bruce Cheriton says that false domestic violence allegations leave many men without any access to their children.

This statement is incorrect in law and in fact. Repeated minimisation of domestic violence by men arguing for custody and access law changes undermines the case they are trying to make.

Where are the fathers prepared to admit that male violence is a huge problem in our society? Where are the fathers teaching their children non-violent responses? Where are the fathers who would rather be home spending time with their children than at the office climbing the career ladder or out taking part in sport?

There are plenty of fathers doing these things but the sad reality remains that there are an awful lot who still do not. There are many men who do not see a lot wrong with violence, and choose to spend time elsewhere than with their children. It is not the law that prevents them from being with their children but their own choice.

The Guardianship Act is not perfect but for the sake of both children and parents we should think carefully before changing it.

* Catriona MacLennan is a South Auckland lawyer.