Benson-Pope David: Care of Children Bill — Second Reading 
Benson-Pope David: Care of Children Bill — Second Reading 
[Volume:621;Page:16415] 
Hon DAVID BENSON-POPE (Associate Minister of Justice) 
: 
 I move  
That the Care of Children Bill be now read a second time 
. This bill repeals and replaces the Guardianship Act 1968. It is nearly 36 year since the Guardianship Act became law and that Act has not kept pace with the change in diversity of this country’s families and equally attitudes towards children have changed significantly. This new legislation will affect the lives of many New Zealand families. 
 I would like to begin by thanking the Justice and Electoral Committee for its valuable contributions towards improving the bill including a number of recommended amendments that are detailed in the commentary. I acknowledge the presence of Mr Tim Barnett my colleague and the chair of that committee in the House today. I would also like to acknowledge and thank my colleagues Margaret Wilson and Lianne Dalziel for their work in the past in advancing these most important reforms. 
Family break-ups affect many New Zealanders directly and indirectly and children are particularly affected. Research has shown that children can be remarkably resilient to change but the long-term effects of unchecked conflict between separating parents are not so easily shrugged off. Too often the bitterness between separating parents can prevent them from reaching agreement over sensible and enduring care arrangements for their children. The Care of Children Bill will encourage parents to focus on the best interests and welfare of their children and will emphasise the ongoing role that both parents as guardians have in a child’s upbringing. How the parenting roles change will depend on the family’s individual circumstances. 
The bill make it clear that a parent who is a guardian of a child continues to have the authority and responsibilities of a guardian whether or not she or he lives with the child. The Justice and Electoral Committee has helpfully made a number of amendments that highlight that guardianship responsibilities should be exercised jointly involving consultation aimed at reaching agreement. The bill also provides some examples of the role of the guardian to clarify the sorts of decisions both parents as guardians should be involved in. For example both guardians should have a role in deciding a child’s name where a child lives and its medical treatment education religion culture and language. The list remains open-ended so that guardianship remains a flexible concept able to respond to different and varied approaches to parenting. 
Clause 4 states the cornerstone principle which is that the welfare and best interests of the child must be the first and paramount consideration in decisions made under the Act. This recognises that each child is different and any decisions made must take into account that child’s welfare and best interests. The Justice and Electoral Committee reaffirmed the importance of this principle and has included a set of principles to assist in determining what is in a particular child’s welfare and best interests. This set of principles in clause 4A does not prevent other matters from being taken into account and all are ultimately subsidiary to the paramountcy principle. 
Research has shown that extended periods of parental conflict and uncertainty have lasting effects on children. The committee has therefore elevated the importance of decisions being made within a time frame that accords with the child’s sense of time. Resolving care arrangements with this in mind is much more likely to minimise the detrimental effects on children. 
The bill also strengthens the existing requirement that a child must be given a chance to express his or her views in proceedings. As children mature they should have increasing opportunities for a role in decision making about things that affect them including decisions about where and with whom they live. 
Too often children are caught in a tug of war between estranged parents each seeking exclusive custody of the child in a win-lose scenario. In this bill the old custody and access orders are replaced with parenting orders. There are two reasons for this change. First many people see the current terminology as treating children as a commodity—an outdated approach that is at odds with the rise of children as participants in rather than the subjects of proceedings. The second reason is to change attitudes about the relationship of parents to their children and to place greater emphasis on the responsibilities parents have for children in their care. The worst symptom perhaps of the current split between access and custody orders is that many people wrongly assume that a parent who does not have custody is excluded from other parenting and guardianship decisions about his or her child. A parenting order will set out the times during which specified persons will either have a role of providing day-to-day care of a child or have contact with that child. The wide variety of care arrangements can be covered in parenting orders and the bill explicitly acknowledges that the day-to-day care responsibilities for a child may be shared. 
The select committee has made some useful amendments to deal with interim parenting orders. Such orders sometimes mean an indefinite break in a relationship between parent and child. The new clause 51A sets down some rules that will hopefully encourage parties to seek final orders sooner and minimise the risk of healthy parent-child relationships being damaged. A number of other changes are proposed to better reflect the reality and variety of family relationships in New Zealand today. The bill also removes some unfair distinctions between married and unmarried fathers by recognising their position as a guardian although if the father has not been in a relationship with the mother it would be up to him to actively seek guardianship status. 
There has been a great deal of public debate about the privacy or openness of Family Court proceedings not all of which has been constructive particularly the misleading assertions that Family Court judges operate in a “secret” court. Clause 130 will enable people who have participated in any earlier Family Court counselling or mediation to attend subsequent hearings. The Justice and Electoral Committee also considered the benefit of media attendance and permitting other support persons to attend with the permission of the presiding judge. The Government supports the resulting amendments to clause 129 which allow accredited news media to attend Family Court hearings as of right and allow support people to attend with the judge’s permission. The Government will closely monitor the impact of these changes on matters such as accommodation and security. 
In a similar vein clause 131 permits wider publication of reports about guardianship proceedings while ensuring that the families involved cannot be identified. I also intend to promote a Supplementary Order Paper that will amend clause 131 to permit fuller reporting of care of children cases in professional publications such as law reports. I hope this will lead to better understanding of the Family Court’s decisions. 
Where parents bring children from previous relationships into a new relationship a new partner who is providing day-to-day care of the parent’s child sometimes faces difficulties because he or she is not a legal guardian of the child. The bill enables each parent to appoint with the agreement of the other parent and guardians one new partner as an additional guardian for a child. The bill also includes numerous safeguards to avoid appointments of people who may pose a risk to the child or in family situations that are too complex. Contrary to criticism this new appointment process actually empowers parents and guardians to extend the group of adults with legal care responsibilities for a child. The committee has also made some helpful amendments to the process of appointing additional guardians such as broadening the types of criminal offences that exclude a person from being appointed and requiring the intending additional guardian to provide a copy of his or her criminal record. 
Clause 37 re-enacts law that has been in place and worked well since 1977 and makes no change to the existing law. A number of organisations with expertise in adolescent health issues have voiced their strong support for retention of this provision. Those organisations include the Royal New Zealand College of General Practitioners the New Zealand Medical Association Unicef New Zealand and the Family Planning Association. It is important that clause 37 is retained to offer a protection to some of our more vulnerable young women. The inevitable consequence of any proposed amendments involving parental notification is that some of those young women might be forced either to have abortions or to continue a pregnancy against their own wishes. For the majority of pregnant young women the love and support of their parents and families will be an important factor when faced with decisions about their pregnancy. However it is a fact that some young women do not live in such a supportive environment and may be placed in danger if without their consent their parents or guardians are notified of a pregnancy or of the intent to seek an abortion. Research consistently shows that confidential health services for adolescents are an essential ingredient for improving their sexual and reproductive health. 
For parents who do not have day-to-day care of their children maintaining contact can be difficult. In some cases involving violence the judge may direct that that contact be supervised. Clause 56 provides that the Government will fund fees for approved supervised contact between providers where a court has ordered that there can be only formal supervised contact between a parent and child because of violence. The bill also provides an enhanced framework for making court orders work addressing concerns about how Family Court decisions are enforced. Clauses 50 and 57 to 69 focus on preventing disputes arising facilitating early resolution and if required enforcement. When making a parenting order the court will be required to specify the obligations that the order creates and ensure that the possible consequences of contravention are made clear. A similar obligation is placed on the representatives of parties to the order and any child affected by it. If a parenting order appears to have been contravened and the parties cannot resolve the dispute unassisted they will have the option of requesting further counselling from a Family Court registrar to facilitate resolution. 
The select committee made some useful amendments to clauses 64 and 65 also to help the execution of warrants in situations where a child is to be collected and returned to another person. I propose to augment those amendments through a Supplementary Order Paper that will give police the power to arrest a person for resisting the execution of such a warrant. 
There is also a useful amendment to the Status of Children Act that will remove barriers for men seeking court orders about paternity. On a related subject the committee has amended the legislation to give courts the power to recommend buccal samples are provided to help determine parentage. I hope the prospect of providing buccal samples will be less distressing for parents and children than the provision of a blood sample. 
The bill also includes a range of changes to the law some big and some small but all with the purpose of improving the situation for children and their families. I am delighted to recommend the bill to the House.