SUBMISSION
To
the Justice and Electoral Committee on the
Care
of Children Bill
1. This submission is from Stuart Birks, Director, Centre for Public Policy Evaluation, Massey University, Private Bag 11222, Palmerston North
2. The objective of the Centre for Public Policy Evaluation is “To facilitate the achievement of excellence in research in priority areas and to develop its domestic and international links. The focus will be on economic aspects of policies in a multidisciplinary context.” The work of the Centre has included, among other things, research and publications in the areas of family law and law and economics.
3. In a speech on 29 April 2003, Hon. Steve Maharey said:
An
oft-quoted statement in the evidence-based debate by John Maynard
Keynes indicates that this is an issue much considered in times
past. He said: “There is nothing a politician likes so
little as to be well informed. It makes decision making so
complex and difficult.”
However,
in today’s climate of increased calls for transparency and
accountability, some means other than accepted or anecdotal
knowledge is demanded as the basis for decision making.
And
this is very much a flax roots demand – from New Zealanders.
People
don’t trust words. They want evidence of ‘what
works’. [1]
4.
This Bill, and its development, does not fit well with an
evidence-based approach. For some time now there have been
recognised problems with the quality of policy advice, as
demonstrated by the State Services Commission’s project on
the issue. The process resulting in this Bill is a good example
of the difficulties that are experienced.
5.
The first step towards the development of this Bill was the
release of a Ministry of Justice discussion paper, Responsibilities
for Children: Especially when Parents Part (Ministry of
Justice 2000). The paper is light on evidence, and that which is
included does not always support the claims made. Appendix 1 of
the paper talks of overseas examples of laws “which may
provide some good ideas and some warnings for New Zealand”
(p.18). It makes claims such as, “Research on the US’s
approach to joint custody shows that it can work, but only if
both parents agree on it” (p.19). It was based on one
paper[2]. The selected paper
presents a judge’s perspective and does not claim to be a
balanced assessment of the research. The author reported from a
1993 source that dual physical custody was awarded in 20 per cent
of disputed US cases. He also stated that, in a 1989
survey, “only” 35.3 percent of judges rated a
joint legal and joint physical custody as their first preference.
6.
There were 359 submissions in response to the discussion paper.
These were independently summarised. There was no guarantee that
submissions would be from people who are well informed. Nor was
it apparent that the submissions would be representative of the
opinions of the wider community. From an academic perspective,
therefore, it is not clear how such submissions could be analysed.
7.
The methodology used in the analysis is described in chapter 3 of
the Summary Analysis of Submissions in Response to the
Discussion Paper Responsibilities for Children: Especially when
Parents Part (Ministry of Justice 2001). Submitters were
divided into five groups: individuals; academics or researchers;
professional individuals or groups; community groups; and
government. Headings were selected “based on the discussion
paper for capturing key points from each submission”. Key
points were then taken from submissions to compile a document for
each of the five groups, assembled in such a way that “analysis
focused on material addressing the questions raised in the
discussion paper”.
8.
In other words, the questions had already been set, and
submitters were unable to add to or alter the agenda. This
information was used to create “a brief overview document
summarising key themes emerging from the submissions”.
Further analysis, by an anonymous “independent researcher”,
was based on the selected key points.
9.
Some immediately identifiable problems with this process are:
10.
It is not evident from the explanatory note to the Care of
Children Bill that the information from submissions was even used
by the working group preparing the “initial proposals paper”.
We only know that “useful input from the earlier
consultation” was drawn on in drafting the Bill.
11.
In summary, to date there has been little effective public
information and consultation, and the process is far from
transparent.
12.
The Care of Children Bill includes a Regulatory Impact and
Compliance Cost Statement. Required content is described on
the Cabinet Office web page[3]. The general quality
of Regulatory Impact Statements has been criticised by Bryce
Wilkinson[4]. Many of his general
criticisms would apply in this case. I discuss the sections in
turn:
13.
Statement of problem and need for action
Three points are made: i) family members outside the nuclear family are excluded; ii) the current system fosters a “winners and losers” mentality; and iii) costs of supervised access are a barrier.
On (i), in practice non-custodial parents are also excluded. On (ii), the Bill, with its changed terminology and increased prescription of “contact”, actually exacerbates the problem. This may not be so much an issue of the Guardianship Act itself, as a consequence of its current interpretation, combined with the aspects of other government interventions. These interventions include the DPB being available to one parent only (the other parent can get unemployment benefit – which means they are work-tested), the child support formula, and (in the situations of biological parents) paid parental leave being channelled through mothers. On (iii), the cost of supervised access is a narrow issue. On the same basis, child support is also a barrier, with no consideration of the costs of “enjoyment of access”, and this is not addressed.
The statement does not address many of the issues presented in prior consultation. Major issues raised in criticism of the current operation of laws on guardianship, custody and access include the lack of support for shared parenting, parental alienation, misuse of domestic violence measures, outcomes being determined by interim arrangements without consideration of the issues, and enforcement of orders. The Bill fails to mention all but the last of these, and for this it does little more than extend existing powers that the courts have not taken up.
In summary, the Bill may not be addressing the right problems, and may not be solving the problems it has identified.
14.
Statement of the public policy objective
Four main objectives are presented. Three relate to children’s rights, and one is to “recognise the diversity of family arrangements”. On rights, UNCROC is mentioned, as well as “ongoing contact with both parents”. UNCROC Article 5 refers to parents’ “direction and guidance”. Article 7 specifies “the right to know and be cared for”. Contact, as specified in the Bill, may fall far short of supporting these rights.
As for family arrangements, current arrangements have arisen under current law, which is claimed to be outdated. Should the Bill be recognising and supporting arrangements that exist, or those that should or could exist?
The current concept of “diversity of family arrangements” arises from a household-based view of the family.[5] Current family law has also evolved in this context. Hence we speak of sole parent families, reconstituted families, and blended families. Perhaps a more contemporary and child-focused view of families would acknowledge children being in families spread over more than one home. Should we “recognise” the failure of many non-custodial parents to effectively parent their children, or see this as a failing of current law and its application?
15.
Statement of options
This statement gives the barest of detail on options and their relationship to the policy objectives, which, in their turn, are loosely connected to the specified problems.
It is suggested that law change is necessary, and this could either happen comprehensively, or with some matters being dealt with immediately. This does not describe options, but only covers timing. It is also suggested that there could be full cost fees for supervised access, or some other approach.
For preferred options, “it was decided” a) to proceed immediately on specific matters, and b) that supervised contact should be fully funded. The decision to proceed is surprising, since Government criticism of the Shared Parenting Bill included the need for a holistic approach.
There is no clear link connecting the options to the objectives, although the Cabinet Office requirements state, “This section should set out the various options (including the preferred option) that could wholly or partly achieve the policy objective(s). Alternative options may rely on the market in conjunction with existing law, information and education campaigns, market-based instruments (including taxes, subsidies, performance bonds and tradable property rights) and self-regulation.”
Given the alternatives listed in the above quote, a far broader range of options could have been considered.
16.
Statement of the net benefit of this proposal
16.1.
Benefits
The Bill is said to focus more on the welfare and best interests of the child, although these are never explained. This is said to make the Bill “more consistent with the principles underpinning other child-related legislation”, but this is not mentioned in the objects of the Child Support Act. Is this consistency important? If so, should the Child Support Act also be changed at the same time?
The Bill is also said to recognise “the importance of ensuring children’s safety”, but it only controls for one possible danger, without consideration as to whether the resulting situation is likely to have other (possibly greater) dangers. A possibly violent person is removed, but the child could subsequently be more at risk in a sole parent household, or one with a custodial parent’s new partner.
As another benefit, “fewer children will experience barriers to continuing contact with both biological parents and other family members”. We could question the nature of the contact. There could be more barriers put in place if there is increased use of supervision. The constraints on contact specified in parenting orders, covering both direct and indirect contact, could be far more prescriptive than current orders for access. These latter generally simply specify direct contact, with no constraints on indirect contact.
The claimed increased transparency of the Court’s decision-making processes requires the effects of Court interventions to be observable at hearings. Much of the activity occurs elsewhere, often under confidentiality. Even at hearings, there is no requirement to explain how rulings meet the “welfare and best interest” criterion.
If a wider group of persons can apply for “parenting orders”, is this further diluting the concept of “parent”? If many people can each apply for contact, how much contact would each “contact parent” have? This is not to say that contact with extended family is undesirable, but the implications for parents are not clear. Would, for example, a current non-custodial parent’s alternate weekends access be reduced to monthly?
The Bill “expands the Court’s powers to prevent and dismiss proceedings”. Some would argue that limited powers are not the problem, but that the problem lies with the Court’s use of its powers. Hence it has, but does not use, powers for “facilitating and enforcing compliance”. It has to be wondered to what extent “vexatious” proceedings are actually attempts to get a reluctant Court to enforce its own orders.
Nowhere
in the description of the Bill’s benefits is there any
assessment of how people will behave, and how the law changes
will be interpreted in practice. Without this analysis, how can
we be sure of the effects of the Bill?
16.2.
Costs
Cost details are necessarily brief, but the costs presented in relation to same-sex parents seem extremely high given the small number of such parents. There are currently only about 900 female same-sex couples with children, of which many will include only children born outside that relationship. No estimates are provided of the number of children born to lesbian couples.
Costs are included for “approvals of supervised contact providers” plus contact provider fees. No details are given as to whether this means that more providers will be needed, how many providers there will be, numbers of parents and children supervised, and numbers of visits.
Cost figures on targeted information for children suggest set up costs in the order of $700,000. No explanation is given as to the nature of the information. Is this the cost of preparing a brochure?
Similarly, there is no explanation as to why two additional Judges are required, save than an increase in applications is expected. If a major reason for the urgent legislative changes is the conflict caused by the win-lose approach of the current system, there should be a resultant reduction in demands on Judges. How were demand projections made? What assumptions were used?
The same points apply on legal aid costings and number and cost of appeals by children.
Is it reasonable to spend $61,000 annually, on top of a capital outlay of $228,000, to process supervised contact payments of $1,190,000 per year? If so, why is it estimated to cost only $24,000 to process $993,000 in the first year?
The business compliance cost statement considers only costs to supervised access providers.
17. According to the Cabinet Office guidelines, a Regulatory Impact Statement: “should provide an outline of the costs and benefits of the proposal and alternative ways of achieving the public policy objective(s). This should include economic and social costs and benefits, whether direct or indirect. It is important that benefits and costs not be restricted to tangible or monetary items (that is, non-monetary outcomes should be included). There should also be brief analysis of distinct alternatives (including the status quo) to the proposed regulation. The groups likely to be significantly affected by the regulatory proposal should also be separately identified in this section. Where the proposal will have different effects on different sub-groups, each sub-group should be identified.”
18. The statement in the Bill appears to fall far short on these requirements. Several of the claimed benefits could be questioned, and few cost details are given. Effects could be different for parents with day-to-day care and those with contact, and the economic and social costs to them could also differ. There is no mention whether the proposed changes would result in longer periods under interim arrangements, or if parties would experience greater legal costs, as a result of more complex legal proceedings involving additional parties.
19. The statement’s shortcomings are not surprising, since nowhere is there a detailed assessment of the expected outcomes. There is no guarantee that the proposed law changes will have the desired results, whatever they may be.
20. There is information that could be considered, but which is not reflected in the Bill. One central issue is that of shared parenting. The New Zealand component of the 2002 International Social Survey Programme[6] provides some relevant findings:
21.
Despite several articles in UNCROC supporting a child’s
relationships with both parents, there is another dimension that
does not appear to fit the current interpretation of “welfare
and best interest” of the child. This is summarised in this
extract from Vandenbroek[7]:
"The
loyalty that all children have towards their parents is an
essential given. The fact alone that the parents bore them makes
the children feel connected to them…This inspires loyalty,
and this loyalty can never be lost, as can be seen for example,
with adopted children who want to know who their biological
parents are …Even children who have been badly treated by
their parents…retain a strong loyalty. Because loyalty is so
important, it can be argued that respecting a child’s
identity cannot be separated from respecting his or her parents."
22.
Aspects of the Bill also contradict the position taken by
Ministers on other issues.
22.1.
Hon. Leanne Dalziel launched a report, Factors
Affecting the Ability of Older People to Live Independently,
on 29 June 2000. Among the key determinants for independence in
old age were good relations with family and assistance from
family.[8] In her speech at the
launch[9], she made the point
again: "those who do not feel that sense of belonging and
participation, no matter what their age, often are left feeling
alienated, isolated and afraid"; "It is that ability to
participate in our communities, that sense of belonging, that
makes us part of our communities"; "Positive attitudes
about ourselves as we grow older are also vital. Good social,
emotional and mental health are critical ingredients to positive
ageing." Old people’s ongoing, close ties and good
relationships with family are important not only for them, but
also for society as a whole in terms of their impact on both the
contribution and the burden of the elderly. The significance of
these ties should not be lost in a rush to recognise a “diversity
of family types”. The ties are a major part of our social
capital. Family law affects that social capital. As the first
source states, “The most important influence on
independence in older age is what individuals do and what happens
to them before they grow older”. Has this dimension been
considered in relation to family law where severed and restricted
relationships between children and their parents and extended
families are common?
22.2.
Hon. Margaret Wilson discussed the importance of relationships in
a speech to the Employment Law Institute on 30 August 2003[10]. She was describing how the Employment Relations
Act was designed to build and maintain productive employment
relationships as part of the Government’s broader strategy
for a more productive and equitable society and economy. The
underlying principles are relevant here in that the Care of
Children Bill has an interest in building and maintaining
productive parent-child relationships, and these are also
important factors for the future of society. Here are some
quotes, indicating thinking that may not be prevalent in family
law at present, and does not appear to underpin the Bill:
·
"Relationships that are trusting, inclusive and fair also
have a social benefit by enhancing people's sense of involvement,
their sense of satisfaction and their general wellbeing."
·
"Recent studies show the increased satisfaction workers
feel when they have a genuine stake in their workplace and its
decision-making processes."
·
"While there is a place for litigation, it rarely results
in harmonious employment relationships."
·
"The Employment Relations Act is underpinned by minimum
employment standards that promote fair dealings and protect
vulnerable workers from exploitation."
·
"The principle of good faith and recognition of the
contributions made by workers and their unions to workplace
productivity is now part and parcel of employment relationships."
·
"We also identified a need to ensure there is protection
of employment conditions and continuity of employment in the
event of the sale of a business, transfer of undertakings, and
contracting out."
·
"I would like to make it clear that what I am talking
about here is the fundamental right to equal pay for women and
men doing the same job.”
·
"Just as employers and workers should assess whether
their behaviour needs to change, courts also need to assess
whether the previous case law is consistent with the broader
principles of good faith, as embodied in the Employment Relations
Act. I have been surprised some court decisions have not
reflected the new approach of the Employment Relations Act in
this respect, and have simply reinforced the common law from
under the Employment Contracts Act."
If these principles for the workplace were applied to laws relating to children and their parents, what would the Care of Children Bill look like?
This
may not fit with the Government’s priorities, however. In a
speech to the PSA pay equity seminar on 30 October 2003[11], Hon. Margaret Wilson said of paid parental leave,
“This is intended to increase women’s attachment to
the labour force and minimise the income effects of time away
from work due to childbirth and parenting.” This
suggests that attachment to work is seen as being of greater
importance than attachment to children and families.
23. This Bill is premature. There has been insufficient public debate on the issues, and the consultation process had shortcomings. Further analysis of the Bill, its objectives, costs and benefits are also needed. The Bill should be assessed in a wider social and policy context. As the Government is planning additional measures, and these could have implications for the effects of the Bill, it would be prudent to analyse the policy package as a whole. Piecemeal analysis without regard for other significant changes is unlikely to result in good policy.
1) There should be consultation on the concept of a “diversity of family arrangements”. The Bill may be redefining families in a way that does not fit with many people’s views. Moreover, the Bill uses a household-based classification of families, which does not match a child-focused definition and therefore goes against the Bill’s own paramount principle.
2) The concept of “welfare and best interest of the child” should be spelled out. It should be asked whether this is suitable as a paramount principle and, if so, whether there is really a conflict with parental rights. The latter have been described as fiduciary rights that are necessary to enable parents to fulfil their parental responsibilities.
3)
Submissions on Responsibilities for Children:
Especially when Parents Part should be revisited to
determine whether the important issues have been identified.
4)
All laws relating to families (including those involving the
workplace) should be reviewed to check for consistency. It is
important to determine what overall vision for families there may
be, and whether this matches New Zealanders’ wishes and
aspirations.
5)
The implications of proposed law changes should be analysed,
considering changed incentives and anticipated changes in
behaviour, bearing in mind implementation issues including
interpretation of the law.
[1] http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=16586
[2]
Hardcastle G W (1998) “Joint Custody: A Family Court
Judge’s Perspective”, Family Law Quarterly, 32(1),
Spring, pp.201-219
[3] http://www.dpmc.govt.nz/cabinet/guide/3.html#3.25
[4] Wilkinson
B (2002) “The Problem of Inadequate Regulatory Impact
Statements”, IPS Policy Newsletter no.70, August, pp.13-18.
[5] See, for example, Hodgson R and Birks S (2002) Statistics New Zealand’s Definition of Family, its Implications for the Accuracy of Data and Effectiveness of Policy Targeting, Student paper No.4, Centre for Public Policy Evaluation, Massey University, Palmerston North
http://econ.massey.ac.nz/cppe/papers/cppesp04/cppesp04.pdf
[6] Gendall P (2002) The Roles of Men and Women in Society, International Social Survey Programme, Department of Marketing, Massey University, Palmerston North, New Zealand
[7] P.144 of Vandenbroeck M (1999) "The view of the yeti: Bringing up children in the spirit of self-awareness and kindredship", The Hague: Bernard van Leer Foundation.
[8] http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=7829
[9] http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=7828
[10] http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=17607
[11] http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=15329