Above And Beyond the Best Interest of the Child
Presented at the Wellington Fatherhood Forum
Mark Henigan, Family Law professor at Otago University, criticised in his speech the current practice of the Family Court having to identify the "best interest of the child" in each individual case. In his view this leads to a process which is disruptive to the child's life, open-ended, and is trying to re-invent the wheel in every individual case. With this approach the law is bound to fail more often than if there were clear rules. Excerpts:
The [current] case by case, factor by factor, approach [by the Family Court] depends totally on which factor or factors the particular Judge wants to emphasise. For example in Powell v Duncan the Family Court emphasised cultural well being over stability of environment. The High Court on the same facts emphasised the stability of environment over cultural well being.
The factors themselves have become more dependent on findings which are not strictly findings of fact, but findings based on social science theory such as "bonding", "attachment", "psychological parent", "parental attitude". An example of the powerful effect psychological theory can have is the famous case of Painter v Bannister. The case was between a father and his grandparents. The children had been living with his grandparents. A psychologist gave evidence that the grandparents were the psychological parents and that "the chances are very high [the child] will go wrong if he is returned to the father". How can anyone make such a prediction?
The best interests test is personal and individualised. It attempts to look into the future. It is idealistic and attempting to do the best. It is totally dependent on the judgements people in authority make about the particular litigants. The basis of the system is personal judgement in consultation with the personal judgement of others who have experience of working with family breakups.
The primary function of a Court system is to decide, who should have responsibilities and rights where there is conflict. It is precisely because there is disagreement, socially, politically, and psychologically as to what is best for children, that the law provides the crucial role of drawing a line. The law by the nature of its authority can save us from endlessly reopening what is best. Imagine if we left whether abortion was right or wrong to the discretion of individual judges and experts. Instead the law has said it is right under certain conditions. The moral debate can go on forever along with the political debate, but in the meanwhile citizens know where they stand when it comes to making their choices on abortion. Authority, to be effective, must be reasonably clear and specific, and not open-ended and vague.
A system of rules gives the authority to the rule and not the people. People may not always like the rule and are still likely to get angry at the rule from time to time. But at least they know the same rule would just as equally be applied to others.
Rules (or principles) for allocating the responsibility of children when parents/caregivers do not agree
- Both parents have common responsibilities for the upbringing of their children. These responsibilities include deciding where the child is to live, educating the child, nurturing the child, providing a set of values for the child.
- Where there is disagreement between parents/caregivers over where a child should live or the exercise of responsibilities, the Court will decide this matter on the basis of minimum disruption to the child's environment, routine, and relationships. The exceptions to this rule are:
- Where change is necessary to protect the child from clear evidence of physical, sexual or emotional harm to the child
- Where change is necessary for the safety of a parent or caregiver
- Where the child expresses a clear view for a change, and the child understands the consequences of that view.
- A parent has the right to ongoing contact with a child, unless there is clear evidence that the contact will do physical, sexual, or emotional harm to the child, or the child expresses a clear view not to see the parent, and the child understands the consequences of that view.
- Where a parent actively discourages the involvement of the other parent for no good reason, the Court has authority to remedy the situation by ordering increased contact.
- If there is disagreement about the terms of contact then the court will work on the rule of thumb basis of a minimum of a weekend every fortnight and half the school holidays when the children are five or older. When the children are under five the Court will work on the rle of thumb basis of a minimum of three sessions of a half a day each per fortnight. If there is disagreement over Christmas Day, it will be decided on the basis of half a day with each parent, with the half days alternating each year.
- The terms custody and access will be removed from the law. The Court, if required to make orders, will make responsibility orders. These orders will define who has responsibility for the child at what times.