30 November 2000
SUBMISSION
To
the Ministry of Justice on the Review of the Laws About
Guardianship, Custody and Access
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.
Given the nature of my Centre, this submission will focus more on
the nature of the review process and the policy environment than
on specific recommendations.
4.
The discussion paper, Responsibilities for Children,
Especially when parents part, raises some useful questions,
but it also includes information which is likely to have an
influence on submissions. This information is misleading. Here I
discuss two statements in the paper’s Appendix 1 about the
situation in the United States, and omissions from Appendix 2 on
international obligations.
5.
Appendix 1 of the discussion paper is claimed to give overseas
examples of laws “which may provide some good ideas and some
warnings for New Zealand” (p.18). The information is patchy,
to say the least. Rather than describe laws, 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). No source was given for this claim, but on request I was
advised by the Ministry of Justice that it was based on one paper,
Hardcastle G W (1998) “Joint Custody: A Family Court Judge’s
Perspective”, Family Law Quarterly, 32(1), Spring, pp.201-219.
6.
It is a concern not only that the Ministry of Justice paper
relied on only one paper for its claim about US research, but
also that the selected paper does not even claim to be a balanced
assessment of the research. It presents a judge’s
perspective, and this may arise from narrow and unrepresentative
exposure. Note that the Department for Courts was not so
accepting of judges' opinions in its study to determine if they
had an appropriate understanding of gender issues[1].
7.
In his paper, Hardcastle expressed concern for what he
perceived to be an overenthusiastic embracing of joint custody.
The evidence he presented does not support the statement in the
Ministry’s discussion paper. Hardcastle 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.
8.
Hardcastle’s bias shows when he lists reasons given by
judges for their concerns about joint custody, before claiming
that, “No judge should accept joint custody without
examination” (p.202). This illustrates problems that can be
observed with legal reasoning[2]. By listing possible disadvantages, but not
mentioning the advantages, Hardcastle presents only one side. It
is not enough to identify problems with joint custody – any
situation can have difficulties. There must be a point of
comparison. What are the difficulties with sole custody, and
which, in any particular case, is likely to be the least
undesirable? For example, little thought is commonly given to the
difficulties of re-establishing a severed relationship, although
this can be a significant factor with sole custody decisions.
Joint custody arrangements can always be changed to sole custody.
It is much harder to have change in the other direction or to
reverse custody.
9.
When Hardcastle sets up the issue as one of whether to
accept joint custody rather than whether to reject it, the burden
of proof rests with those favouring joint custody. This is
surprising given various international conventions relating to
families which would suggest that family relationships should not
be disrupted or severed without good reason and due process[3]. The alternative to
Hardcastle’s position would be to contend that, “no
judge should reject joint custody without examination”.
It is important to determine which question this review
intends to ask.
10.
Part IV of Hardcastle's paper discusses process. Without using
the term, he describes the effect of "the shadow of the law"
when stating that "joint custody legislation places
pressure on litigants to negotiate a joint custody arrangement"
(pp.217-8). This is important, but surprisingly the point is lost
on many in government and law, as discussed further in paragraphs
17-25.
11.
The Ministry of Justice discussion paper also described another
US method, the primary care-taker approach, where “the judge
has to make decisions based on who they think was the parent who
spent most time carrying out the day-to-day child care tasks
before separation.” (p.19)
12.
We see similar reasoning presented as the sole option in a
publication from the OCC[4], and in a recent speech
by the Minister of Women’s Affairs[5]. The view does not go unchallenged, however.
Kelly (1997) states that: “Child development research
does not support the distinction between primary and secondary
caretakers for children after age 4 or 5 if they have lived in
the two-parent home.” [6]
13.
Appendix 2 of the discussion paper presents international
obligations “relevant to custody of and access to children”.
It draws only from UNCROC, the United Nations Convention on the
Rights of the Child. Article 9.1 is mentioned, but its
significance may be missed. It states that, "States
Parties shall ensure that a child shall not be separated from his
or her parents against their will, except when competent
authorities subject to judicial review determine, in accordance
with applicable law and procedures, that such separation is
necessary for the best interests of the child." This
could possibly be interpreted to mean that interim sole-custody
arrangements are questionable, and that alternatives to shared
custody should only be considered when they can be shown to be
superior according to a "best interest of the child"
criterion.
14.
There are other relevant articles in UNCROC:
·
Article 5 says that: "States Parties shall respect
the responsibilities, rights and duties of parents … to
provide … appropriate direction and guidance".
·
In Article 7 we see that: "The child shall
… have …, as far as possible, the right to know and be
cared for by his or her parents".
·
Article 14.2 says: "States parties shall respect
the rights and duties of parents and, if applicable, legal
guardians, to provide direction to the child in the exercise of
his or her right in a manner consistent with the evolving
capacities of the child."
·
Article 18.2 requires the State to develop appropriate
institutions, which would include the Family Court: "For
the purpose of guaranteeing and promoting the rights set forth in
the present Convention, States Parties shall render appropriate
assistance to parents and legal guardians in the performance of
their child-rearing responsibilities and shall ensure the
development of institutions, facilities and services for the care
of the child."
·
Article 19.1, referring to mental violence, could be
considered to apply to emotional abuse in the form of parental
alienation: "States
Parties shall take all appropriate legislative, administrative,
social and educational measures to protect the child from all
forms of physical or mental violence, injury or abuse, neglect or
negligent treatment, maltreatment or exploitation, including
sexual abuse, while in the care of parent(s), legal guardian(s)
or any other person who has the care of the child."
15.
There are other internationally specified rights which merit
consideration. From the submission of the Human Rights Commission
to the Government Administration Services Select Committee on the
Matrimonial Property Amendment Bill 1998 and the De Facto
Relationships (Property) Bill 1998, July 1998:
·
"Article 16(1) of the Universal Declaration of Human
Rights provides that men and women of full age have the right to
marry and found a family; and relevantly they are entitled to
equal rights as to marriage, during marriage and at its
dissolution. Article 16(3) provides that the family is the
natural and fundamental unit of society and is entitled to
protection by society and the state."
·
"International Covenant on Civil and Political Rights ...
Article 17 provides that no one shall be subjected to arbitrary
or unlawful interference with his privacy, family, home or
correspondence."
·
"Convention on the Elimination of Discrimination Against
Women [CEDAW] ... Article 16 provides that States Parties shall
take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations
and in particular shall ensure, on a basis of equality of men and
women: Article 16(f) ensures the same rights and responsibilities
during marriage and at its dissolution."
16.
Article 5 of CEDAW is also relevant:
States
Parties shall take all appropriate measures:
To
modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of
the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women;
·
To ensure that family education includes a proper
understanding of maternity as a social function and the
recognition of the common responsibility of men and women in the
upbringing and development of their children, it being understood
that the interest of the children is the primordial consideration
in all cases.
17.
The foreword to the Ministry of Justice discussion paper includes
the following claim:
“If
parents can agree on the important decisions about how children
should be cared for, and if parents stay together, or can reach
agreement about the care of children if they do separate, then
the laws and structures discussed in this paper are irrelevant.”
(p.3)
18.
The foreword was signed by Hon Margaret Wilson, Associate
Minister of Justice, and Hon Steve Maharey, Minister of Social
Services and Employment. They are both Government Ministers
involved in formulating and recommending policy and will have
been advised by the Ministry of Justice.
19.
The Ministers will be aware of laws on numerous diverse issues
such as theft, speeding, drunk-driving, drugtaking, assault, and
benefit fraud. These laws are intended to change behaviour. I
doubt that they would dream of suggesting that these laws are
irrelevant to all except those convicted of contravening those
laws. New Zealand has seen changes to tax and benefit structures
and major economic reforms on the basis that these changes will
produce what is claimed to be more desirable behaviour. Actions
will change to reflect the post-reform environment.
20.
The concept of the Shadow of the Law refers to changed behaviour
of people who, while not directly using the law, take account of
the anticipated outcomes were the law to be applied. Legal
outcomes affect the behaviour of many more people than those
directly involved.
21.
It stretches credibility to believe that the Ministers and the
Ministry of Justice are unaware of such a fundamental aspect of
policy. Yet they claim, in a document which is intended to inform
the public, that such effects do not apply in the case of laws
relating to guardianship, custody and access.
22.
The same can be said of the New Zealand Law Society. On 26th
April 2000 the Family Law Section of the New Zealand Law Society
issued a press release opposing the Shared Parenting Bill. It
included the following statement: "…the Bill seems
to ignore the fact that the vast majority of parents seem to be
able to find sensible and pragmatic solutions to the problems
posed by family separation without resort either to lawyers or
the courts. The Section is concerned that substantive law changes
are being promoted as a response to a relatively small number of
difficult cases.” [7] It
would be unfortunate if "difficult", and therefore
unrepresentative, cases were to cast a shadow affecting the
outcomes in numerous other cases where alternative, superior,
solutions would otherwise have been possible.
23.
John Priestley QC, the Chair of the Family Law Section of the New
Zealand Law Society, in a news release of 6 October 2000, was
also unable to see any connection between the Court and the
actions of parents. In dismissing a claim that the behaviour of
the Court might affect separating parents, he said, “The
large majority of separated New Zealanders put their own joint
parenting arrangements into place without any need for
intervention by lawyers or the Family Court”. He has
since been appointed a Judge in the High Court. In that role,
will he use decisions as a signal to others?
24.
The claim that those who reach agreement outside the court are
satisfied with the outcome is even more surprising in the context
of the statement by the Principal Family Court Judge that the
Court is not effective at enforcing access orders.[8] If the Court is openly
acknowledged to be ineffective in this area, wouldn’t that
serve as a disincentive for dissatisfied people to take the
matter to the Court?
25.
Institutions such as the Family Court do send signals and affect
behaviour. It is regrettable, and not conducive to respect for
society’s institutions, that there is such denial of
responsibility for the effects of the actions of these
institutions.
Analysis
of submissions
26.
There is a call for submissions as part of the Government’s
review of the legislation on guardianship, custody and access.
The discussion paper contains limited and misleading information
which is likely to influence those making submissions. There is
no guarantee that submissions will be from people who are any
better informed. Nor is it apparent that the submissions will be
representative of the opinions of the wider community. From an
academic perspective, therefore, it is not clear how such
submissions can be analysed.
27.
One worrying indication of the possible misuse of submissions can
be seen in a speech to the House by Hon Margaret Wilson on 13
November 2000.[9] To quote:
"I move
that the House take note of the report of the Justice and Electoral
Committee on the Matrimonial Property Amendment Bill incorporating
Supplementary Order Paper No. 25.
…
During
1998 the Government and Administration Select Committee heard
submissions on both bills. Approximately 60% of submissions
on the Matrimonial Property Amendment Bill expressed concern that
it did not address the issue of economic disadvantage that can be
suffered by the non-career partner on marriage breakdown.”
28.
Are submissions simply going to be counted as if they are votes?
If so, is it appropriate to do this when, as with the bills
referred to above, the matter in question was not even raised as
a point for debate? Are all submissions to be given the same
weight, irrespective of the bodies making the submission, whether
they are groups or individuals? If submissions are to be used in
this way, would it not be appropriate to have informed debate
before the submissions are requested?
29.
There are several aspects of policymaking which may have some
bearing on the matters under consideration in this review. Stated
generally, effective policies require suitable policy instruments,
suitably trained people to apply those instruments, and
monitoring of outcomes.
30.
The Family Court recognizes that access orders are a poor policy
instrument. They are crude and, in the present environment at
least, hard to enforce. There is a simple explanation for this.
The Court has taken an extreme position in creating a "favoured
parent" status for the custodial parent. There is little
that the Court has allowed itself to bargain with to persuade
that parent to comply with the order, save the extreme threat of
change of custody. The longer the period of non-compliance, the
greater the disruption such a step would be for the children. The
threat is scarcely credible in most cases.
31.
Similarly it can be hard to enforce the guardianship rights of
the parent who has far less contact with the children, if only
because the children will usually be more influenced by the
custodial parent.
32.
We may be asking more from the Family Court than is possible
given either available options or the Court's choice of options.
33.
Parenting plans could offer greater scope as they permit
acknowledgement of numerous minor events which, cumulatively, may
be significant. Plans recognize the importance of factors besides
contact time, thus also providing other options for change.
34.
Policy instruments and their application depend in part on
perspectives taken. The rights specified in paragraphs 13-16
above consider families in terms of the relationships between
individuals, in particular the relationship between children and
their parents. This is markedly different from the definition of
family in the New Zealand census and the time-use survey, both of
which are household-based. A parent is not recognized as such
unless living in the same household as the children, and other
adults who are live-in partners to a parent are considered as
parents. This has numerous implications. It shapes views on
parenting and non-custodial parents, it affects tax payments, it
is central to child support legislation and to benefit structures.
It provides a distorted view of the issues. It may be that
compliance with international obligations will only really be
possible when domestic policy is based on a compatible view of
families.
35.
There are other issues to consider in relation to the training of
those working in the areas of guardianship, custody and access.
It is unlikely that they will have a realistic picture, given the
information discussed in this submission. There are further
problems in relation to supervision and accountability. The Law
Society's complaints procedure was strongly criticized in the
Cotter and Roper report.[10] Since
its release, little has been done to improve matters. Adequate
complaints procedures and professional standards are also
necessary for others working in the Family Court.
36.
It may be appropriate to consider how well coordinated the
various Family Court interventions are. Are psychologists and
counsellors informed of case histories and material in case files?
How much detail should be passed on from counseling sessions?
37.
It is unfortunate that there has been so little informed and open
debate on policy issues surrounding family law and the Family
Court. There is scope for far more than exists at present without
threatening the secrecy of individual proceedings.
38.
The following Issues Papers by the Centre for Public Policy
Evaluation may be relevant to the review. They are available free
of charge on the internet at:
http://econ.massey.ac.nz/cppe/papers/
·
No.1
S. Birks and G. Buurman, “Is the Legal System an
Efficient Regulatory and Dispute Resolution Device”,
October 1997.
39.
Issues Paper No.10, forthcoming, will contain papers presented at
the Social Policy Forum, Children's Rights and Families, held in
Wellington on 26 October 2000.
[1] Barwick H, Burns J and Gray A (1996) Gender Equity in the New Zealand Judicial System: Judges' Perceptions of Gender Issues, Judicial Working Group on Gender Equity, Department for Courts.
[2] See Birks S (2000) "Legal Reasoning", chapter 5 in Birks S (ed) (2000) Analytical Skills for Social Issues: Reason or Delusion? Issues Paper No. 8, Centre for Public Policy Evaluation, Massey University.
[3] See paragraphs 13-16 below.
[4] See p. 32 of Julian R (1999) Fathering in the New Millenium, Wellington: Office of the Commissioner for Children.
[5] "At this point the [custody] decision is not made on the basis of gender. The reason custody is normally awarded to mothers is that they are usually the primary caregiver." Hon. Laila Harre, Address to Social Policy 2000 - Children's Rights and Families, Wellington, 26 October 2000. http://www.executive.govt.nz/speech.cfm?speechralph=32804&SR=1
[6] P.383 of Kelly J B (1997) “The best interests of the child: a concept in search of meaning”, Family and Conciliation Courts Review, 35(4), October, pp.377-387. The primary caregiver concept is also discussed in Birks S (1999) "Parenting and the Family Court: An Economist's Perspective", chapter 8 in Birks S and Callister P (eds) (1999) Perspectives on Fathering II, Issues Paper No. 6, Centre for Public Policy Evaluation, Massey University.
[7] http://www.nz-lawsoc.org.nz/fls/news/sharedp.htm
[8] Assignment, TV1, 8.30pm, 16 November 2000
[9] http://www.executive.govt.nz/speech.cfm?speechralph=33033&SR=1, 13/11/00, Hon Margaret Wilson, Property (Relationships) Bill, [Report-back speech]
[10] W Brent Cotter QC and Christopher Roper, Report on a project on Education and Training in Legal Ethics and Professional Responsibility for the Council of Legal Education and the New Zealand Law Society, undated, but released in 1997.