Association of Family and Conciliation Courts Annual Conference "Listening to Children's Views in Disputed Custody and Access Cases" Judicial Interviews in New Zealand
Judge Peter Boshier
Vancouver, BC, Canada
29 May 2008
Introduction
In recent years, both in New Zealand and internationally, the involvement of children in decision-making that directly affects them has received considerable attention. In New Zealand one of the most significant steps to facilitating such involvement has been domestic adherence (The Care of Children Act 2004) to international agreements (UNCROC). As a consequence New Zealand’s legal processes now encapsulate many of the intellectual shifts in relation to children, recognising them as legitimate people in their own right within families.[1]
At an operational level, the passing of this legislation has also seen a major shift in the way the New Zealand Family Court operates when children are directly involved. We interpret the legislation as placing particular importance on children’s views, and facilitate this in our jurisdiction through processes encapsulated within practice notes and judicial guidelines. Without doubt the Act represents an unmistakable shift towards the recognition of greater rights for children and allows for their greater input in decision-making processes[2].
Further guidance on how the Act facilitates the means of child participation has been proffered by the High Court.[3] There it was held that the child’s wishes should be introduced “primarily” through either counsel for the child or through an interview with the Judge.
What I therefore propose to do in this paper is outline the sections of the Care of Children Act that pertain to children’s views, and explore how, through lawyer-for-the-child and judicial interviews, we as a Family Court move to give due consideration to children’s views. I will also explore the intricacies of how this is put into practice on a daily basis by taking you through a case scenario.
Rationale for Child Participation
Whilst the New Zealand legislature (through the Care of Children Act 2004) makes it clear that the Courts are to take note of children’s views, it is useful to address where the rationale for child participation comes from. From a regulatory standpoint, the United Nations Convention on the Rights of the Child (UNCROC) is extremely illuminating; particularly Article 12, which deliberately notes that children have a right to express their views freely in all matters that affect them. Furthermore s27(1) of the New Zealand Bill of Rights Act 1990 affirms a right relevant to a child by requiring the Court to observe the principles of natural justice when making a determination which affects a person’s rights which are protected or recognised by law. This combination of international and national legislation I believe provides a compelling argument for this increased level of child participation.
Yet legislative change is driven by changing societal attitudes and it is to that which I now want to turn. The concept of listening to children in family court proceedings is not an isolated topic, but rather one part of far-reaching changes. Our beliefs pertaining to children and families, and their place within society, have evolved remarkably quickly over the last three decades. Children’s right to participate in proceedings that affect them is but one facet of this general recognition of giving children the respect to which they are entitled, and there are a number of reasons why the right to participation is particularly important.
Firstly, it recognises children’s basic dignity and the place of participation in society as a right. In this regard it recognises the child’s right to be heard and acknowledged[4] (as long as they do not feel burdened by any of the responsibility for the outcome).[5]
It also acknowledges the value of direct communication[6] and the likely beneficial effect on the judicial decision[7] since children are then sure the Judge knows exactly how they feel without any mixed messages or misinterpretations.[8]
Furthermore it is important for children in terms of development; for there is compelling evidence that participation impacts upon self-esteem, psychological functioning[9] and helps children develop self-efficiency so that they are able to move out from under the wings of their family.[10] This appears to be particularly prevalent when the child has very clear and strong views[11] and where the children are involved in contested matters.[12]
Judges also see the consideration of children’s views as important. For them children’s views are seen to assist decision-making,[13] to enhance the process itself[14] and may, therapeutically, directly assist the children.[15]
The Care of Children Act 2004
With the research having clearly indicated that children’s views should be taken into account by the Family Court both directly and indirectly, the New Zealand Parliament reflected the views of the wider New Zealand community in 2004 by enacting the Care of Children Act. This legislation was intended to substantially shift the framework of child involvement in Family Court hearings.
Of particular note was the introduction of section 6 entitled “Child’s Views”, which reads as follows:
Section 6 – Child’s Views:
(1) This subsection applies to proceedings involving –
a. The guardianship of, or the role of providing day-to-day care for, or contact with, a child; or
b. The administration of property belonging to, or held in trust for, a child; or
c. The application of the income of property of that kind.
(2) In proceedings to which subsection (2) applies, -
a. A child must be given reasonable opportunities to express views on matters affecting the child; and
b. Any views the child expresses (either directly or through a representative) must be taken into account.
At its core therefore, this section calls for children to be given a reasonable opportunity to express their views and for those views to be given appropriate consideration when determining the outcome of a case.
What section 6 does not envisage is the manner in which a child may express their views or what would constitute appropriate consideration. For this we must turn to section 7 of the Care of Children Act 2004 which gives the lawyer-for-the-child guidance on the ascertainment and representation of children’s views. It reads as follows:
Section 7 – Lawyer to act for child
(1) A Court may appoint a lawyer to act for a child who is the subject of, or who is a party to, proceedings (other than criminal proceedings) under this Act.
(2) However, unless it is satisfied the appointment would serve no useful purpose, the Court must make an appointment under subsection (1) if the proceedings –
a. Involve the role of providing day-to-day care for the child, or contact with the child; and
b. Appear likely to proceed to a hearing.
(3) To facilitate performance of the lawyer’s duties and compliance with section 6 (children’s views), the lawyer must, unless he or she considers it inappropriate to do so because of exceptional circumstances, meet with the child.
(4) The lawyer may call any person as a witness in the proceedings, and may cross-examine witnesses called by a party to the proceedings or by the Court.
Thus the Care of Children Act requires that a lawyer be appointed for a child in any proceedings involving their day-to-day care or contact that are likely to proceed to a hearing.
An appointment of this nature however necessarily imposes a number of obligations on the lawyer to facilitate and give greatest effect to the child’s right to participate. These include meeting with the child for the purpose of ascertaining his or her views, unless to do so would be inappropriate.[16]
It also involves explaining the outcome of any proceedings to the child. This later requirement is vitally important for it is of limited use to have a child involved in the process and then ignore them at the conclusion of it. Unquestioningly a child will be affected in an enormous way by the decision, whether it is eventually reached through mediation or judicial decision-making, and thus it is only proper that the consequences of such a decision are deliberately, and appropriately, conveyed to the child.[17]
Along with the final outcome, the legislation obliges the child’s lawyer to explain to the child any cultural, medical, psychiatric or psychological reports concerning them.[18] As with other obligations of this nature, the only exception to this rule is where, in the opinion of the lawyer, it would be contrary to the welfare and best interests of the child.[19] In this regard it is worth noting that it is part of the best practice agreed with psychologists that their reports should include a statement containing any reasons why, in their opinion, the report or any part of the reports should not be shown to the child.[20] Obviously the presence or absence of such reasoning would be highly influential in guiding a lawyer-for-the-child’s decision.
This operational expression of how New Zealand should go about obtaining the views of children through lawyer-for-the-child has been given further definition through a recent “Lawyer-for-the-Child: Code of Conduct Practice Note”[21] which we negotiated with the New Zealand Society Family Law Section. This has sought to re-align the duties of lawyers acting for children. In doing so it reinforced the important sections of the Care of Children Act, principally section six, as well as providing more exacting domestic adherence to the principles encapsulated in the United Nations Convention on the Rights of the Child, to which New Zealand is, quite rightly, a signatory.
In substance, the Practice Note sets out the guiding principles and the role of lawyer-for-the-child by reiterating the underlying principles of the Care of Children Act – that the best interests and welfare of the child are paramount - whilst constantly returning to the concepts espoused in sections six and seven of the Act. It also guides the lawyer’s relationship with both the child and the Court as well as furthering ancillary matters. As a consequence, it has the ability to promote quality and consistency of practice without burdening lawyers with rules that prohibit the exercise of professional judgment.
Whilst the statute and guidelines provide a solid basis for the role of lawyer-for-the-child, they provide no express direction on how exactly the lawyer should act for the child. As a consequence vigorous and significant debate on this point has arisen in New Zealand.[22] I believe it is now fairly uncontested that lawyers acting for children must assume a very different role from those representing adults.[23] Where debate therefore exists is in whether the lawyer-for-the-child should universally advocate the child’s views even if the lawyer does not believe those views to be in the best interests and welfare of the child; or whether the child’s views should be subservient to what the lawyer believes to be the best interests and welfare of the child.
I strongly believe that the obligation that rests on the child’s lawyer is to always present the views of the child to the Court regardless of whether they believe they are in the child’s best interests. Any deviation from this role would negate the child’s right to participate. However, the lawyer can then, and I submit should inform the court of whether he or she believes the child’s views to be contrary to the child’s best interests and welfare. With all the information at hand, the Court, who should be the arbiter of fact and law, can determine the congruency or otherwise of the child’s views with their best interests and welfare. In reading the legislation this way, I believe we encapsulate the totality of the Care of Children Act without resorting to examining either section six or section seven in isolation.
There are considerable signs that this “direct representation” view is being promulgated by others, including the Family Law Section of the New Zealand Law Society,[24] and indeed is strongly supported by the principles in UNCROC Article 12. I hope its development continues.
Preparation for Judges Interviewing Children
Clearly however, the receipt of the child’s views via the lawyer-for-the-child is an indirect way of receiving children’s views. This raises particular concern as valuable research has shown that children are not uniformly happy with how their views are interpreted when conveyed indirectly.[25] Consequently, and in light of both case law[26] and the language of rule 54 of the Family Courts Rules 2002,[27] judicial interviews have come to form an invaluable part of the toolbox of Family Court Judges.
Judges in New Zealand have themselves expressed the value of judicial interviews, with Judge O’Dwyer noting their worth in assessing children’s views, wishes, level of understanding and maturity.[28] Furthermore, Judge Neal has noted that he benefited from seeing the child not so much for what they said, but from being able to make his decision with a personality in mind rather than in a vacuum relying on the evidence alone.[29]
In an effort to facilitate the most effective judicial interviews New Zealand’s Family Court Judges have addressed the issue themselves. The result has been the careful crafting of written guidelines regarding interviews and the admission of transcripts, which now allow the Judiciary to approach the task on an extremely principled basis. It has taken time and enormous effort. However, the end product has been well worth the effort involved.
I do however acknowledge that natural justice concerns are often raised when the issue of judicial interviews is discussed. Nevertheless, I believe many of these concerns have been abated in New Zealand through the now common-place recording of the interview, and subsequent provision to parties of either a transcript of the interview or an audio recording.[30] Such a practice is prudent in order to respect the natural justice rights of both the child and the parents. This is particularly so where the case is highly contentious or where a transcript may be necessary for appeal purposes.[31]
Thus, whilst I recognise concerns pertaining to natural justice exist, so long as these carefully crafted and robust guidelines are followed, the rights of both the child and the parties can be upheld.
Specialist Reports
To this point I have noted the importance of lawyer-for-the-child and judicial interviews as mechanisms by which the Court can hear children’s views, but I must also impress upon you that there is a third, albeit less frequently used method of obtaining children’s views – specialist reports.[32] However, the rationale behind such reports differs slightly from the other two methods in that the Family Court cannot order a psychological report solely for the purposes of ascertaining the child’s views.[33] The primary means of introducing the views of the child remains through the lawyer-for-the-child and judicial interviews. Whilst specialist reports are therefore invaluable in the appropriate circumstances they remain beyond the scope of this present paper.
Case Scenario
With the above theoretical framework in mind I want to take you through how we, as Judges in New Zealand, actually go about obtaining a child’s views in practice.
Firstly, when a case comes before us, a determination will be made as to whether a lawyer-for-the-child is necessary. If it is determined that one is, (and rarely is s7(2)[34] invoked), a lawyer-for-the-child will be appointed pursuant to section 7 of the Care of Children Act 2004.
The lawyer will then, almost always, meet with the child as this is usually the most reliable and consistent way for a lawyer to ascertain the child’s views in line with the statutory requirements. However, exceptions do exist, particularly where the child is opposed to meeting the lawyer or the lawyer judges’ further interviews would cause the child unnecessary distress. Such a situation could arise where allegations of physical and sexual abuse are the subject of the proceedings.[35]
However, the exceptions are extremely limited and the Court takes very seriously the importance of lawyers meeting with children. Indeed, the fact that the lawyer had not met with the child was raised as a ground of appeal in DLB v DLS[36]. Whilst the appeal was dismissed on other grounds Justice Cooper did note that there was no justification for the lawyer-for-the-child’s stance in this instance.
Judicial interviews may also be conducted at this stage. To give you a flavour of what occurs, I typically welcome a child, discuss with them matters unrelated to the case and show them around the Court room. The rationale behind this is simple, if they feel comfortable in their surroundings, and with the Judge, they are more likely to be frank and honest in their discussion, and the Judge will be able to elucidate more accurately the true view of the child, and importantly, whether or not they have been coached.
Secondly I will explain to the child what the proceedings are about, in terms that are applicable to their age and maturity. Listening to a child requires “being able to enter the child’s world; listening to very young children does not necessarily mean taking all their utterances at face value, but it does mean observing the nuances of how they exhibit stress, or curiosity or anxiety in a manner that is congruent with their maturity.”[37]
I then take considerable time to discuss with the child what they like about life with each parent. This may involve discussion of different places, weather, sport, pets; indeed anything that is in the reference framework of the particular child. This I can not emphasise enough. The framework that is set up is designed entirely to fit that particular child and their individual situation. With the different personalities and needs of each child that comes to us, different methods are appropriate in different situations. It is simply a matter of finding out what works for each child (hence the importance of a general introduction) in order to truly give children an opportunity to express their views if they wish to do so.
Finally I turn to the lawyer-for-the child, who is present at all times during the judicial interview, and ask him or her if there is anything they have discussed with the child that they would like me to know.
Whilst the above implies only one judicial interview will occur, it may be necessary for multiple discussions to take place particularly where proceedings are undertaken over a prolonged period. Indeed we may need to go further and provide children with a range of people they can talk to, but at the same time we must remain mindful of not subjecting them to a barrage of questioning.[38]
At this point the proceedings take place, with what I believe, is a solid foundation, having ascertained the child’s views both directly and indirectly. Children however are not brought into the hearing, as it is felt that this is not generally in their best interests. Instead, having met with the child the lawyer must present the child’s views to the Court. As I discussed previously this then allows the Court to determine whether these views are congruent with the child’s best interests.
The final role that the lawyer-for-the-child plays is to explain the effect of any order made to the child. Occasionally this is undertaken by a Judge, but certainly more often than not; this role is retained by the lawyer-for-the-child.
Conclusion
To conclude therefore, I hope this paper has shown the real importance New Zealand places on children’s views within the Family Court System. Whilst traditionally the advocacy of a child’s views has been minimised and primary attention given to the parents’ wants and needs, major attitudinal shifts have seen significant changes in this sphere. The evidence is clear; many children value the opportunity to interact with the decision-maker, even where a lawyer has advocated their views[39] because they then feel their view has been taken into account; even if, in the end, it is not followed. I strongly believe we must continue this trend, and take children’s views into account when considering what is in their best interests and welfare.
Footnotes
1 Judge Paul von Dadelszen, Judicial Reforms in the Family Court of New Zealand (Symposium of Chief Judges of Family Courts, Singapore, 23 July 2007), paragraph 13.
2 D v S FC Napier, FAM-1999-041-215, 26 September 2006, Judge Boshier, paragraph 42.
3 In the decision of the Full Court of the High Court: K v K [2005] NZFLR 28.
4 P. Parkinson et al, "Parents' and Children's Views on Talking to Judges in Parenting Disputes in Australia." International Journal of Law, Policy and the Family 21 (2007) : 104.
5 P. Parkinson & J. Cashmore, "Judicial Conversations with Children in Parenting Disputes: The Views of Australian Judges." International Journal of Law, Policy and the Family 21 (2007) : 185.
6 P. Parkinson et al, "Parents' and Children's Views on Talking to Judges in Parenting Disputes in Australia." International Journal of Law, Policy and the Family 21 (2007) : 102.
7 Ibid, 84.
8 P. Parkinson et al, "Parents' and Children's Views on Talking to Judges in Parenting Disputes in Australia." International Journal of Law, Policy and the Family 21 (2007) : 90.
9 Jan Doogue & Alistair Logan, Care of Children Act 2004, (New Zealand Law Society Seminar, May 2005), 15.
10 Mark Henaghan & P Tapp, "Family Law: Conceptions of childhood and Children's Voices � the Implications of Article 12 of the United Nations Convention on the Rights of the Child" in Children's Voices: Research, Policy and Practice, ed. A. Smith et al, (Longman, Auckland, 2000), 92-106.
11 Ibid, 88.
12 Ibid, 89.
13 P. Parkinson & J. Cashmore, "Judicial Conversations with Children in Parenting Disputes: The Views of Australian Judges." International Journal of Law, Policy and the Family 21 (2007) : 185.
14 Ibid.
15 Ibid, 179.
16 Care of Children Act 2004, s7(3).
17 Care of Children Act 2004, s55(4).
18 Care of Children Act 2004, s134(5).
19 Care of Children Act 2004, s134(5).
20 Judge Peter Boshier, Family Court of New Zealand, Practice Note: Specialist Report Writers 4 (2006), http://www.justice.govt.nz/family/practice/notes/default.asp?inline=specialist-report-writers.asp
21 Judge Peter Boshier, Family Court of New Zealand, Practice Note 45: Lawyer for the Child: Code of Conduct (2007), http://www.justice.govt.nz/family/practice/notes/default.asp?inline=lawyer-for-the-child-code-of-conduct.asp
22 Nicola Taylor, Megan Gallop & Anne Smith, "Children and Young People's Perspectives on the Role of Counsel for the Child" Butterworths Family Law Journal 3 (2000) : 146.
23 Note however the Executive of the Family Law sections discussion paper on this subject "The Gluestein Paper": A Glustein, "New guidelines for lawyers acting for children", NZLS Family Law Section.
24 In "Best Practice Guidelines for Lawyers Representing Children � Discussion Paper, NZLS, 2006".
25 Cashmore, "Children's Participation in Family Law Matters" in Hallett and Prout (eds), Hearing the Voices of Children: Social Policy for a New Century (2003) 165 in Tapp, "Judges are Human Too: Conversation between the Judge and a Child as a Means of Giving Effect to Section 6 of the Care of Children Act 2004" New Zealand Law Review (2006) 39.
26 See Justice Priestley's comments that the use of the verb directly in s6(2)(b) did envisage the child expressing the views personally to the presiding judge in Brown v Argyll [2006] NZFLR 705 at paragraph [47].
27 This discusses the steps a Court may take to ascertain the wishes of a child or young person.
28 LJG v RTP [Child Abduction] [2006] NZFLR 589 Judge MNE O'Dwyer at paragraph [88].
29 Knight v Finn [2003] NZFLR 38 at paragraph [27].
30 See the discussion in J v M Family Court, North Shore 2004-044-001857, 20 April 2005.
31 Note that in Australia, an investigation by Parkinson and Cashmore found the principle that there should be no secret communications was seen as fundamental. See P. Parkinson & J. Cashmore, "Judicial Conversations with Children in Parenting Disputes: The Views of Australian Judges." International Journal of Law, Policy and the Family 21 (2007) : 165.
32 Care of Children Act 2004, s132 and s133.
33 K v K [2005] NZFLR 28.
34 Care of Children Act 2004.
35 See for example R v P FC PMN FAM-1997-054-82, 20 June 2006.
36 [2007] NZFLR 263.
37 P Tapp, Examining Judicial Approaches to Interviewing Children, Paper given at LexisNexis Child Law Conference, March 2002, at p 10, drawing on G Pugh and D Seleck, "Listening to and Communicating with Young Children" in R Davie, G Upton, and V Varma (eds), The Voice of the Child � A Handbook for Professionals, London 1995 and N Lowe, and M Murch "Children's Participation in the Family Justice System: Translating Principles into Practice" in J Dewar and S Parker (eds), Family Law: Processes, Practices, Pressures, Oxford, Hart Publishing, 2003, at p 19.
38 Judge Paul von Dadelszen, Judicial Reforms in the Family Court of New Zealand (Symposium of Chief Judges of Family Courts, Singapore, 23 July 2007), paragraph 27.
39 P. Parkinson et al, "Parents' and Children's Views on Talking to Judges in Parenting Disputes in Australia." International Journal of Law, Policy and the Family 21 (2007) : 84.
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