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| This article has been reproduced from FAMILY MATTERS no.33 December 1992, pp.40-41 |
In line with the theme of this issue of Family Matters, and
consistent with the substance of many of the conference papers
presented at the fifth Family Law Conference, children's
interests, welfare and rights were well to the fore.
Three papers on children's rights and parental responsibilities
were presented respectively by Sir Alan Ward of the English High
Court of Justice, His Honour Jim O'Donovan of the Family Court of
New Zealand, and Justice Eric Baker of the Family Court of
Australia.
United Kingdom,
The Children Act
The Children Act 1989 came into force in England and Wales in
October 1991. It is a comprehensive Act that virtually codifies
children's law into one statute. Thus it deals with children who
may be tile subject of care and protection orders, as well as
those whose parents have separated. Social services for children
and their families are also included in the legislation, and
statutory remedies relating to the determination of the
upbringing of children are available in all courts and
proceedings.
In emphasising its major features and philosophy, Sir Alan Ward
referred to the Act as being more than a fundamental reform of
the law, stressing that its provisions and the principles
underlining them would transform the attitudes of courts, lawyers
and the services caring for children in need.
He classified the five major characteristics of the Children Act
as being: the movement away from parental right to parental
responsibility., a sharpening of the focus of attention on the
welfare and wishes of the child; provision of a flexible menu of
practical orders and the adoption of a less interventionist
approach by courts; promotion and protection of the integrity of
the family; and the creation of a concurrent jurisdiction between
all court levels.
Sir Alan emphasised that under the Children Act the justification
for the exercise of parental authority is seen in terms of the
duty to care for a child and raise him or her to the best
attainable standards. This principle ('the golden thread woven
through the fabric of the Act') applies as much to the public
(for example, care and protection matters) as to the private law
(for example, disputes between separating parents) aspects of the
provisions.
In practice, this means that when a child is placed in care, the
local authority has parental responsibility in all major areas of
the child's life, in partnership, where possible, with the
parents. The concept of shared parental responsibility is also
shown in its being conferred on those with a residence
(previously custody) order, who may have no biological connection
to the child. More commonly, both parents may have parental
responsibility for the same child simultaneously although they
are not cohabiting, and each may act alone in the exercise of
this respon sibility. The result of this is that following
separation the parent who is not living with the child still has
full responsibility during contact (previously access) periods,
the intention being to encourage dual parental participation in
cases where the spousal relationship has broken down.
Thus, the Children Act has changed some of the traditional
language of family law. Sir Alan referred to several terms having
been 'consigned to the jurisprudential dustbin', with courts now
having power to make residence and contact orders in place of
those designated as being custody or access orders. There is a
presumption against the making of any orders involving children,
and such orders as are considered necessary must only be made
after a court has found itself satisfied that they will
contribute positively to the child's welfare. This principle
stresses the importance of families themselves resolving their
difficulties and making practical arrangements for their children
without external intervention.
The United Kingdom has no family court, and the Children Act does
not create one. Instead, it creates a jurisdiction which allows
the allocation of cases between the magistrates' court, the
county court and the High Court
depending on the weight, complexity and nature of the dispute. To
ensure judicial expertise in cases involving children, a
comprehensive system of judicial training has been instituted
and only judges nominated by the Lord Chancellor may try family
cases.
New Zealand Children, Young Persons and Their Families Act
New Zealand has also recently seen the introduction of new
legislation affecting children. The Children Young Persons and
Their Families Act 1989 reforms the law relating to children and
young people who are in need of care and protection, or have
offended. The Family Court is responsible for care and protection
issues and the Youth Court deals with youth justice issues.
Judge O'Donovan, a Family Court judge, discussed care and
protection issues. He stressed that the New Zealand legislation
is focused on the child, although its language still appears to
emphasise parental rights, and that although custody orders are
made, they frequently allow considerable flexibility and are
designed to encourage shared parenting. While not quibbling with
the operation of the New Zealand legislation, it is apparent that
Judge O'Donovan believes that future laws relating to families
should be expressed 'in language more appropriate to the needs
and aspirations of modern families'.
One unique characteristic of the Children, Young Persons and
Their Families Act is the role played by the extended family and
other significant people in the child's life via the family group
conference. Such a conference is convened once an application is
made to the Family Court for a declaration that a child or young
person is in need of care and protection. The conference involves
all people with an interest in the child's welfare, including
members of the extended family, social workers, teachers,
representatives of the relevant welfare agency and possibly
friends. The child may have legal representation and lawyers are
appointed by the court to act on his or her behalf.
The philosophy underlying the Act is that the identification of
any care and protection issue, and how it may be addressed, is
decided at the group family conference, and the decisions made at
the conference, (provided they are not inconsistent with the
child's welfare), will be accepted and implemented. Usually, if
the matter is brought to a court after the completion of the
conference, it will be to ensure that the court can approve the
decisions made at the conference.
State intervention is therefore greatly reduced and, as with the
Children Act provisons, families are encouraged to resolve
matters themselves without external intervention. The Department
of Social Welfare normally seeks solutions which are implemented
by the family, and the family is constantly consulted throughout
the process. To date, the conferences have proved to be extremely
successful - Judge O'Donovan remarked that: 'Only rarely will a
conference not be held or prove unsuccessful in providing helpful
decisions on the basis of which the matter may be satisfactorily
resolved.'
The New Zealand legislation is child focused, and the welfare of
the child is specifically paramount, as it is in the United
Kingdom and Australia. It also specifically refers to the Maori
family forms of 'Whanau' (extended family), 'Hapu' (the much
larger family, of which the Whanau is part), and the 'Iwi' or
tribal community to which the Whanau belongs.
Australia - Recent Family Law Act Amendments
Although the Family Law Act has regulated disputes involving
separated men and women and their children since 1976, it has
been amended on approximately 30 occasions and is now
considerably different from the original legislation. The paper
Justice Baker delivered at the Conference drew attention to the
two most recent amendments regarding the welfare of children.
These relate respectively to access enforcement (1989) and child
abuse, step-parent adoptions and children's evidence (1991).
The enforcement of access orders has always posed a dilemma for
courts. Penalties which involve fining or Jailing the custodial
parent may have a detrimental impact on the children in her or
his care, and similarly a change in custody may not be a viable
option. With the introduction of the Child Support Scheme came a
realisation that, despite family law's separation of maintenance
and access, the two are frequently considered together in
parents' minds.
The Family Law Act now has a new Part XIIIA which provides
sanctions for failure to comply with orders, and contempt of
court. Section 112AD allows the court to make a variety of orders
where an order is contravened, including jail, a fine and
sequestration of property. Before a final order is made, and
unless the court is satisfied that the order may be appropriately
made in its absence, the parties to the proceedings are required
to attend for counselling. Furthermore, when the court is
determining what penalty is to be imposed it must regard the
welfare of the child concerned as the paramount
consideration.
The most recent amendments to the Act are mentioned briefly
elsewhere in this issue ('Children's welfare, rights and the
legal system'). Justice Baker referred to the management of child
abuse allegations, the definition of abuse and the obligation of
court officials in certain circumstances to report their concerns
to the appropriate welfare authority. In addition, in any
proceedings which involve an allegation of abuse against a child,
five categories of people may intervene including the child's
guardian, a person entitled to custody or care and control, a
prescribed child welfare authority and the alleged abuser.
In his references to possible amendments to the terminology of
the law in disputes involving children, Justice Baker indicated
his scepticism about possible changes, observing: 'It matters
little how you dress up an order for custody following a long and
bitterly 'contested hearing. The person who has the child on a
day-to-day or care-and-control basis will clearly perceive that
they have won, while the person having visitation or access
rights will regard an order for custody in favour of the other
spouse as a loss'.
These views appear to be shared by a number of Family Court
judges, and it is interesting to contrast the opinions of the
Australian judiciary with those of judges representing the High
Court of justice and the New Zealand Family Court. In its lengthy
submission to the Parliamentary Inquiry into the Family Law Act
(JSC 1992), the Family Court commented negatively on the
recommendations contained in the Family Law Council discussion
paper, 'Patterns of Parenting After Separation', particularly
those directed towards changing the terminology currently used in
disputes involving children.
This brief summary of three important papers fails to do justice
to the complexity of the issues they raised. Those interested in
the topic are urged to obtain a copy of the conference handbook
(NFLC 1992), which also includes a number of other papers
relevant to children's rights and welfare in a family law
context.
References
JSC (1992), 'Joint Select Committee on Certain Aspects of the
Operation and Interpretation of the Family Law Act', Official
Hansard Report, Canberra, Vol.30, pp.S.5901-5914.
NFLC (1992), Fifth National Family Law Conference Handbook,
Business Law education Centre, South Melbourne.
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