“When and how the Family Court intervenes in New Zealand Families” Peter Boshier

“When and how the Family Court intervenes in New Zealand Families” Peter Boshier Principal Family Court Judge Social Service Providers Aotearoa Conference 2010 1

Workload 2009 – All Applications Social Service Providers Aotearoa Conference 2010

Social Service Providers Aotearoa Conference 2010

Basic Assumptions New Zealand’s rates of child abuse and neglect, levels of domestic violence, deaths of children and women, and rate of elder abuse are shameful It will take the actions of all New Zealanders to achieve our vision of a society in which all families/whānau have healthy, respectful andstable relationships, free from violence Eliminating family violence is going to take many years Social Service Providers Aotearoa Conference 2010

Inspiring Behaviour Change and Empowering Families • Develop air ads for third phase “It’s not OK” • Develop resources and communications, especially training and behaviour change tools • Community level solutions and a sharing of successes • Real support for E tu and Pacific Advisory Group • Support champions of social change and development of community awareness Social Service Providers Aotearoa Conference 2010

Supporting and Encouraging Leadership Locally • Forming partnerships with local authorities • Identifying and working with local leaders who will influence • Working with regional newspapers and ethnic media • Stressing the real importance of NGO partners • Providing media advocacy to support the messages Social Service Providers Aotearoa Conference 2010

Supporting Community Family Violence Responses • A community response model, including whānau ora, is seen as insightful • Communities need to make good decisions about local family violence responses including exchange of information and wide engagement • Importantly, the development and trial of an integrated community based family case response model that brings together current initiatives and themes Social Service Providers Aotearoa Conference 2010

Better Integration of Justice and Social Services • A comprehensive review of all Ministry of Justice funded programmes for perpetrators and victims • Investigate the desirability of a broader set of responses • A legislative and regulatory review may be needed • Implement and evaluate a Community Link in Courts initiative, bringing together for the first time, Justice, Ministry of Social Development and other Government agencies Social Service Providers Aotearoa Conference 2010

A Better Evaluative Approach in Measuring Results • Better research is needed to understand the nature of family violence and identify successful models • The models will be different for Māori, Pacific, refugee and new migrant communities • A results based accountability monitoring inter contracts must be introduced • New legislation introduced as of 1 July will be monitored and evaluated • Our results in New Zealand must be measured Social Service Providers Aotearoa Conference 2010

Dashboard Indicators • Are the major outcomes of family violence changing: getting more or less severe? • Are incidents of family violence increasing or decreasing year-by-year across all communities? • Is there specific evidence of reduced tolerance of violence and behaviour change in families across all communities? Social Service Providers Aotearoa Conference 2010

Domestic Violence (Enhancing Safety) Legislation • On the spot Police Safety Orders • Process for breach • Ability of criminal courts to make temporary protection orders • On sentence criminal courts may make final protection orders • Bail conditions tightened to better address the safety of children Social Service Providers Aotearoa Conference 2010

Family Courts Matters Legislation • This legislation amended a number of family law Acts to increase the openness of Family Court proceedings and improve the efficiency and effectiveness of the Family Court by making changes to processes and procedures • Major objectives of the Family Court Matters Legislation: • To clarify publication provisions for all of the Statutes • Provide for non-Judge led mediation • Extend the availability of counselling • Increase Registrars powers • First phase of the implementation came into force on 18 May 2009 Social Service Providers Aotearoa Conference 2010

Interparental Conflict • One third of marriages in New Zealand end in divorce • During 2008, 43% of divorces in New Zealand involved children – 7,600 in total • The Family Court’s most difficult cases are where conflict is so high that the parents have lost sight of their children’s welfare Social Service Providers Aotearoa Conference 2010

Towards Early Intervention • A Family Court at Christchurch commenced trialling a new form of intervention process in early 2009 • The reference to counselling remained, but in addition a strong emphasis was put on parent education through “Parenting through Separation” courses • If counselling was unsuccessful, prompt reference to mediation Social Service Providers Aotearoa Conference 2010

Christchurch Early Intervention Programme • If still unsuccessful, there was a requirement to file a Memorandum of Issues in reference to a thirty minute judicial conference; and finally • If after all of those steps the matter was still unresolved, a ninety minute hearing would occur before a Judge within a short space of time Social Service Providers Aotearoa Conference 2010 20

Christchurch Early Intervention Programme • The results of the programme could not be ignored • In 2009, 469 cases entered the programme, approximately 75% of which proceeded to mediation • Of those that went to mediation, an astonishing 81.4% were settled • After that, the vast majority of those remaining were settled at the judge-led conference. • Only 11 cases, just over 2%, required a hearing Social Service Providers Aotearoa Conference 2010 21

Early Intervention: The Essential Points • All applications for the care of children enter the system – currently 30,672 cases per annum • Triage and assessing the correct Track. If the Urgent Track applies, it means that mediation is considered inappropriate and close judicial oversight occurs • If however the Standard Track applies, there is a heavy emphasis on counselling, mediation and judicial resolution • Hearings will occur for a small proportion of cases filed Social Service Providers Aotearoa Conference 2010 22

Early Intervention Process Social Service Providers Aotearoa Conference 2010 23

The Urgent Track • Triage considerations for urgency are: • Reduction of time granted • Enforcement of proceedings • Repeated proceedings • Unilateral relocation • Suspension of contact • Demonstrable violence issues • Other information that suggests Standard Track in appropriate Social Service Providers Aotearoa Conference 2010 24

The Urgent Track • Lawyers may wish to assist Registrars on triage information • Initial consideration in dealing of urgent applications remains relatively similar • After the 15 minute judicial conference, cases must be moved to hearing more promptly than has happened thus far Social Service Providers Aotearoa Conference 2010

Resolving Urgent Cases • Judges will often make orders immediately in Chambers • A 15 minute conference then occurs 14 days later to settle the issues, alter any orders and set the case up for hearing if needed • If a hearing is needed to determine issues, that will occur for two hours within 56 days of triage assessment Social Service Providers Aotearoa Conference 2010

The Standard Track • Most cases will proceed down the Standard Track • Counselling and parental education are, for the most part, mandatory • If no resolution after six weeks, mediation occurs before a lawyer trained as a mediator • If still no resolution, a 45 minute judicial conference before a judge at which the parties are present • If still no resolution, a hearing before a judge within 2 – 6 weeks, depending on whether reports are needed Social Service Providers Aotearoa Conference 2010

What has driven EIP? • Most Family Court litigants wish to have their cases resolved sooner rather than later • A clear differentiation must be made between: those who will benefit from alternative dispute resolution and those who need robust judicial intervention • Those who will benefit from alternative dispute resolution must be assisted to make decisions quickly so that alienation and status quo positions do not develop Social Service Providers Aotearoa Conference 2010 28

Rationale for Early intervention • The context of divorce for many families is high personal and interpersonal distress • This heightens parents’ difficulty in making rational decisions about their children’s care arrangements • Yet an absence of decisions creates uncertainty and the opportunity for the taking of adversarial positions • Therefore there is good reason to facilitate early decision making Social Service Providers Aotearoa Conference 2010

Children’s views • Children’s views as expressed in NZ and Australian studies appear to support early intervention (Parkinson & Cashmore, 2008, Rigg & Pryor, 2009, Willetts &Seymour, 2009) • In particular, children prefer decisions to be made within the family, and they don’t like matters dragged out in Court proceedings Social Service Providers Aotearoa Conference 2010

From Willetts & Seymour (2009) They might want to go to the Judge and get a proper opinion but not something that gets dragged out for two and a half years. It’s too long and too hard on the children. You get really stressed and it’s really hard. (Eva) Social Service Providers Aotearoa Conference 2010

Children’s sense of time • In the perception of a child, a drawn out dispute can occupy the majority of their childhood • The law in NZ explicitly recognizes this: In determining … the child’s welfare and best interests … must take into account (a) the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time. s4(5) Care of Children Act 2004 Social Service Providers Aotearoa Conference 2010

Reducing exposure to conflict • Exposure to conflict is a major factor associated with children’s adjustment, both within intact families and following separation (Kelly & Emery, 2003) • It is how it is contained and managed that will determine the affect it has on children (Ahrons, 2006; Grych, 2005; Harold & Murch, 2004) Social Service Providers Aotearoa Conference 2010

Contact with both parents • Early intervention promotes contact • In studies of children’s views, most children prefer ongoing contact with both parents • Maintenance of meaningful relationships with both parents is associated with future positive adjustment (Kelly & Emery, 2003) • Delays in decision making can be used as a tactic to disrupt parent-child contact, and/or to create a status quo which may be hard to rebut in subsequent court proceedings Social Service Providers Aotearoa Conference 2010

Early education through Parenting through Separation programsand mediation in the Standard Track are expected to facilitate ongoing child-parent contact • In high conflict and/or high risk cases within the Urgent Track, early court intervention can prescribe the appropriate contact without excessive delay Social Service Providers Aotearoa Conference 2010

Reduces alienation risk • Parent alienation of children can be assisted by delay. Delay opens the opportunity for continued exposure to parental conflict, and opportunity for indoctrination of children • We have to recognize that the formal authority of the court should be used very early in the process to hold parents accountable for their behavior and prevent ingrained conflict patterns (Jaffe, 2010, p. 139) Social Service Providers Aotearoa Conference 2010

Attachment • Secure – which is positive and responsive • Insecure – which results in a negative or absent bond between child and parent • Disorganised or disoriented – leads to the significant problems Social Service Providers Aotearoa Conference 2010

Parenting Style • Authoratative – characterised by high control and high responsiveness • Authoritarian – characterised by strictness and a high level of control • Permissive – low control and high responsiveness – child indulgent with little parental control • Neglectful – low control and low responsiveness – hands off Social Service Providers Aotearoa Conference 2010

Care and Protection of Children The concept of Family Conferencing was wholly new when introduced in 1989 s13 Children Young Persons & Their Families Act – primary role of caring is with family, whanau, hapu or iwi s5(A) instructs that a child’s family should participate in decisions s4(B) emphasises that State agencies exist to assist, not substitute A consistency in legislative intent with the United Nations Convention on the Rights of the Child Social Service Providers Aotearoa Conference 2010

The shift in power balance • The power of the court was made secondary to the power of the Family Group Conference • A presumption established that only court involvement if, required • Court intervention proscribed and limited • If court order needed, the court, or a Judge bound to endeavour to follow the recommendations of the FGC • Overview and audit Social Service Providers Aotearoa Conference 2010

Conferences leading to court • Unless very urgent, most cases will go to a conference first • The purpose is diversionary- to avoid the making of a declaration that a child is in need of care and protection if possible • Agreements reached before court are recognised by the State and resourced • Very urgent cases may go straight to court • If conference plans break down, court intervention may be important, in order to protect Social Service Providers Aotearoa Conference 2010

The importance of Conferences • Functions of a conference are three-fold: • To consider such matters in relation to the care and protection of the child or young person as the conference thinks fit • To make decisions or recommendations and to formulate plans • To review decisions, recommendations, and plans and their implementation. • see s28 CYPF Act Social Service Providers Aotearoa Conference 2010

Conference Outcomes • Chief Executive must give effect to decisions, recommendations, and plans unless clearly impractical or inconsistent with the Act (see s34) • When a Care and Protection case comes to Court, the Court is not bound to follow the decisions or plan • Generally, it is rarely for the Court not to do so • Decision making rests primarily with the Family Group and Conference Social Service Providers Aotearoa Conference 2010

The Court’s Role • The Court’s role is oversight and audit • Conferences are absolutely fundamental – no declaration can be made without a conference (subject to very limited exceptions) (See Sections 70 & 72) • The Court may intervene and substitute where, for various reasons, the conference has not been properly formed, or its outcomes are unsafe or inadequate Social Service Providers Aotearoa Conference 2010

Early Intervention • An integrated, graduated and increasingly multi-disciplinary approach to prevention and treatment of child abuse in New Zealand is needed • Well-Child Care (formerly Plunket) should be provided to every single family prior to the child’s birth • The purpose is to prepare for parenthood and assess the family’s welfare using a checklist of factors Social Service Providers Aotearoa Conference 2010

www.justice.govt.nz/family

“When and how the Family Court intervenes in New Zealand Families” Peter Boshier