The Justice Committee has examined the Family Court (Supporting Children in Court) Legislation Bill and recommends, by majority, that it be passed with the amendments shown.

The Family Court (Supporting Children in Court) Legislation Bill is an omnibus bill that would amend the Care of Children Act 2004 and the Family Dispute Resolution Act 2013.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We wish to bring the House’s attention to the following two issues relating to clauses 7 and 9. We discuss some of these issues later in this commentary.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

Clause 2 specifies that the bill would come into force the day after it receives Royal assent.

We note that the independent panel established to evaluate the 2014 reforms recommended a stocktake of appropriate models of child participation within the family justice system. The Ministry of Justice has begun the process for the stocktake and expects it to be completed by the end of 2021.

The stocktake is expected to include consideration of:

• key principles for children’s participation, including requiring professionals to promote children’s participation

• how children’s views should be taken into account in cases where there is family violence

• how the needs of specific population groups should be accommodated, including children from cultural minorities, and children with disabilities

• how the needs of tamariki Māori and accountabilities to Te Tiriti o Waitangi should be met.

The stocktake will help in developing guidance and resources, and in identifying where further training for family justice professionals is needed. It aims to ensure that professionals in the family justice system facilitate children’s participation in a safe and appropriate way.

We consider that the Act’s clauses relating to child participation should not come into force before the development of tools and guidance from the stocktake. We recommend amending clause 2 to specify that the Act should come into force either on a date appointed by the Governor-General by Order in Council, or 2 years after the date of Royal assent, whichever is earlier. We also recommend amending clause 2 to allow Orders in Council to be made appointing different dates for different provisions of the Act. This would ensure that the provisions relating to the stocktake can be implemented appropriately while allowing the Act’s other provisions to come into force in a timely manner.

Clause 4 would amend section 5 of the Care of Children Act to include a new principle that would specify that a child who is capable of forming their own views about any matter affecting their care and welfare should be given reasonable opportunities to participate in any decision affecting them. It would further specify that, commensurate with the child’s age and maturity, their views should be taken into account.

We agree with submitters who argued that the principle should be strengthened, considering that the views of even very young children can significantly inform decision-making.

We recommend amending clause 4, section 5 of the Act, to specify that a child “must be given reasonable opportunities to participate in any decision affecting them”.

Our proposed change to clause 4 would include removing the “age and maturity” component of the bill’s new principle and the caveat that the child “is capable of forming their own views”. We note that these components are already taken into consideration by the Family Court when deciding what weight should be given to the views of a child.

Clause 9 of the bill would insert new section 7B(2)(a) into the Care of Children Act to require lawyers to take any steps that, in the opinion of the lawyer, assist in promoting conciliation before commencing proceedings. We agree with submitters that there are some cases where it would not be safe to pursue conciliation. They could include cases involving family and sexual violence, substance abuse or mental health issues, or cases where there are significant power imbalances.

We recommend amending clause 9 to remove the requirement that a lawyer must take any steps that assist in promoting conciliation. We note that the Family Court Act already promotes a duty of conciliation that applies to lawyers acting for a party before proceedings commence. Our amendment would ensure that promoting conciliation is not misapplied to cases where it would be unsafe or inappropriate to do so.

We also recommend amending clause 9 to amend new section 7B(2)(b). The new section would require lawyers, before commencing a proceeding under the Care of Children Act, to assist in enabling the issues in dispute to be resolved as fairly, inexpensively, simply, and speedily as is consistent with justice. Our amendment would include the requirement that lawyers also assist in enabling the issues in dispute to be resolved “safely”. This acknowledges the risk of family and sexual violence issues in disputes about the care of children. It also strengthens our intention that a duty to promote conciliation cannot override the welfare and best interests of children where there are safety concerns.

Clause 11 would amend section 11 of the Family Dispute Resolution Act. The amendment would require a Family Dispute Resolution (FDR) provider to make every endeavour to facilitate the participation in those discussions of the children involved in the dispute, to the extent that the FDR provider considers appropriate.

We recommend amending clause 11 to parallel the wording we proposed in clause 4 of the bill. Rather than requiring an FDR provider to facilitate children’s participation in discussion, our amendment would “ensure that the children who are the subject of the dispute are given any reasonable opportunities to participate in the decisions affecting them that the FDR provider considers appropriate”.

The National Party does not support this bill because, while improvements to children’s participation are to be welcomed, this law would see more disputes in court and a more legalistic approach involving more lawyers. As many submitters noted, this would make things worse not better for children.

In relation to child participation, we would note we heard from multiple submitters that it is not in every instance in a child’s welfare and best interests to actively participate. For example, where it involves confronting trauma or significant family acrimony it can be harmful. Additionally, over-exposure to multiple professionals and to the court case can lead to a sense of responsibility for the decisions made.

We also agree with the related concern that this bill is proceeding without the benefit of research from which to develop an evidence-based model for children’s participation and guidelines about the circumstances where children should be involved.

This leads to concerns we have about lawyers for the child, given that this bill will lead to an even more central role for them. Many submitters raised concerns about the role and lack of training and lack of skills of lawyer for child when it comes to such important matters as child development and psychology or sexual violence. We agree with this concern. Other professionals with skills and training relevant to children could do a better job out of court. More court process and lawyers are not the answer.

Finally, in support of our view we point to the international practices we were made aware of during the select committee process. With this law, New Zealand will see more cases in court with more primacy provided to lawyers than in any of the several comparable jurisdictions we looked at. Almost invariably these jurisdictions use other professionals such as psychologists or social workers more than they do lawyers with variable training and knowledge of dealing with children.