Cindy Kiro: Needs of innocent children must take priority in court

COMMENT

MP Nick Smith's opinion piece calling for parental rights and a more open Family Court pays scant attention to the well-being of children who are the innocent victims of family breakdown.

One of the main functions of the Family Court is to protect the safety and welfare of vulnerable children at a time of great emotional stress for their entire family.

The court's priority must be the welfare of children and not the rights of the adult combatants.

Most parents make good arrangements for their children during family breakdowns and only a small number of cases end up before the Family Court.

By the time a breakdown reaches the Family Court, the situation is highly emotional and often acrimonious.

It is not in the interests of the child to read in the media accusations and counter-accusations flung in a court by distraught parents. In fact some children, who are already extremely distressed by family breakdown, would risk severe emotional damage if Family Court proceedings were more open.

Another possibility is that some parents may start manipulating the media covering a more open Family Court.

Most of us know adults who have not behaved very rationally during a family breakdown. It is crucial that court proceedings are treated with the utmost seriousness during this critical time.

There are legitimate reasons for placing restrictions on the public accessing Family Court.

These reasons reflect the need to safeguard the interests and well-being of children involved in Family Court cases.

In fact, judges can allow wider family members to participate in proceedings and the courts also have the jurisdiction to release some material to the media.

However, this is very different from allowing public scrutiny of these often personal and painful family issues.

Let us also be clear that children are the innocent parties in Family Court cases. They neither have the means to directly address the court (except at the judge's discretion), nor are entitled to use many of the mechanisms, such as protection orders, that are freely available to adults.

This is not a case of the pendulum swinging in favour of children's rights. Indeed the United Nations' Convention on the Rights of the Child specifically acknowledges the role of parents and families, and states children have the right to maintain relationships with both parents when there is a family breakdown.

In the Family Court, problems hidden are not problems ignored.

The new head of the Family Court, Judge Peter Boshier, is responding to that public sentiment by launching a website on which anonymous judgments will be published. This approach will protect the anonymity of children caught up in family disputes, while giving the public more understanding about court decisions.

Dr Smith talks about wanting to strengthen the rights and responsibilities of parents. He goes on to say that competent parents have the right and responsibility to care for their children.

Of course they do. I am convinced all New Zealand parents, whether they are solo mothers in South Auckland or wealthy parents from Remuera, want the best for their children. I talk to parents from all walks of life and they share the same aspirations for their children to be happy and healthy.

Unfortunately, not all parents succeed in creating an environment of well-being for their children. We have high levels of violence against children in New Zealand.

From 1989 to 2000, about 3584 children were admitted to hospital as a result of non-accidental injury inflicted by others and 162 children aged 0-19 and young people died during that time. Parents' rights must never be given priority over the safety and well-being of children and young people.

In fact, a major step forward would be giving children more voice in Family Court proceedings. Dr Smith says children are given too many rights but there is evidence that many children do not understand or know what is happening in Family Court.

Like adults, children have rights and these rights exist irrespective of age.

However, what we should expect of children and the degree of protection we should offer them depends on their age and development.

The younger or smaller a child or young person is, the more vulnerable they are. They should therefore be afforded more protection, not less.

There are many excellent counsels who are appointed to represent the interests of the child but my office also gets feedback that some do not routinely talk to the children involved.

Counsel may think children are incapable of having clear views but some young children are well able to put their own case, while older children may feel confused. It would be helpful if counsels for the child were given training so they could communicate clearly with their young clients.

In any debate over changes to access to the Family Court, the interests of the children must remain paramount. Children are the innocent participants in highly charged and emotive situations that are not of their making.

* Dr Cindy Kiro is the Children's Commissioner.