Final report from family justice review released
Wed 19 Jun 2019
The final report of the panel examining the 2014 family justice system reforms, including the Family Court was released on 16 June 2019.
Te Korowai Ture ā-Whānau: The final report of the Independent Panel examining the 2014 family justice reforms (2019), makes 70 recommendations for change to law, policy and practices related to family justice services. These cover law, resourcing, administrative and operational processes and infrastructure. They also include recommendations relating to building capability and capacity within the Court and family justice services to "allow for children’s participation, recognise te ao Māori, provide for diversity, accommodate disability and better respond to family violence."
The Panel states the impact of the 2014 reforms could not be considered in isolation from other areas of family law, such as legislation governing family violence, care and protection, and relationship property. The review was not a first-principles review of the Family Court or family justice services as a whole however the Panel makes recommendations on a number of issues.
Findings and recommendations
The principal recommendation of the Panel is to introduce a joined-up family justice service called Te Korowai Ture ā-Whānau. This would bring together the in and out of court elements of family justice services, in an attempt to address siloing and fragmentation.
The remaining recommendations are grouped into the following categories:
- system-wide issues
- encouraging early agreement
- strengthening the Family Court
- monitoring and development.
Part One discusses the most significant system-wide issues in family justice services that were identified through consultation and research. These include: children’s participation, recognition of te ao Māori, responding to diversity, accommodating disability, family violence and children’s safety, and endemic delays. One of the key findings is "Knowledge of family violence in all its forms is still not widespread, and there appears to be limited understanding of its impact on children." (page 33)
The recommendations on family violence and children's safety are summarised in the Executive Summary as follows:
"Amend the Care of Children Act 2004 so that judges may:
a. make findings of fact in a timely way, where there is a disputed allegation of violence or abuse
b. undertake ongoing risk assessment, recognising that risk is dynamic and can be unpredictable.
Amend the Care of Children Act 2004 to include a checklist of factors the Family Court may take into consideration relevant to a child’s safety, including:
- the nature, seriousness and frequency of the violence used
- whether there is a historic pattern of violence or threats of violence, for example coercive and controlling behaviour or behaviour that causes or may cause the child or their carer cumulative harm
- the likelihood of further violence occurring
- the physical or emotional harm caused to the child by the violence
- whether the child will be safe in the care of or having contact with the violent person
- any views the child expresses on the matter
- any steps taken by the violent party to prevent further violence occurring
- any involvement or oversight by a community or other organisation relating to a child’s welfare
- any serious mental health condition that impacts on a party’s ability to ensure a child’s safety, and the steps taken to address this condition
- any drug or alcohol issues that impacts on a party’s ability to ensure a child’s safety, and the steps taken to address these issues
- any other matters the Court considers relevant."
Amend the Family Court Rules 2002 to specify Care of Children Act documents to include information about the safety needs of victim-survivors when attending court.
Amend the Care of Children Act 2004 and relevant Rules to enable the Family Court to
request relevant information about family harm or family violence incidents from Police and reports from supervised contact providers.
Direct the Ministry of Justice, in consultation with key stakeholders, to develop a risk
assessment tool for use with children, victim-survivors and perpetrators of violence.
Direct the Ministry of Justice to work with judges and relevant professional bodies to ensure family justice professionals receive consistent, ongoing training about family violence.
Amend the Family Violence Act 2018 (as it will be called from 1 July 2019) so that children who are the subject of Care of Children Act proceedings are able to access safety programmes available under that Act."
Part Two focuses on encouraging early agreement between parents and whānau. This includes "... ensuring parents and whānau must be able to access the right service at the right time in the right way." This considers quality and accessible information, counselling outside the Court, Parenting Through Separation (PTS), Family Dispute Resolution (FDR), access to early legal advice and community engagement.
Part Three focuses on Family Court processes. The Panel considered the increase in without notice applications, delays in resolution of cases, and the role of court professionals. It assesses the 2014 reforms and covers court registry staffing, judicial resourcing, access to legal representation, lawyer for child and psychologists, court-directed counselling, complex cases, case tracks and conferences, without notice applications, and cost contributions.
Part Four contains recommendations on monitoring and development. The Panel highlights there here has been no comprehensive monitoring of the impact of the 2014 reforms and available data is not adequate to compare and evaluate developments. This part addresses financial pressures, technology in the Family Court, the Family Court Rules, Care of Children Act forms and recommendations on monitoring and development.
The Appendices include a prioritisation of the recommendations and estimated costs to implement the recommendations.
An executive summary is available in Te Reo, an easy read version and a video with sign language. The Panel also released a research report commissioned from UMR Research, A qualitative study on behalf of the Independent Panel examining the 2014 family justice system reforms, which summarises interviews conducted with children, Māori and Pasifika parents and whānau, and disabled parents.
In releasing the report, Justice Minister Andrew Little said:
“These changes were meant to make things easier for families at a difficult time, but they have had the opposite effect. Cases are taking longer to resolve and many family members involved in the court processes say they are not well-supported. I am also keen to give close consideration to the recommendations about the need for more culturally sensitive approaches."
Andrew Little said he had tasked officials with developing a workable programme for change, and expected to receive advice from them by the end of the year.
The Justice Minister set up the independent to review the 2014 Family Court reforms in August 2018. The Panel ran two rounds of public consultation. The terms of reference, consultation documents, public submissions and consultation summary reports are available on the Ministry of Justice Family Court Rewrite webpage.
For more background see our previous stories:
Responses to the report
"The Report is comprehensive with a wide range of recommendations. We accept that if implemented, the Court will be more efficient and effective for the straightforward cases. However, we believe recommendations 17-24 dealing specifically with ‘Family Violence and children’s safety’ fall well short in adequately addressing the complex and specialist cases involving family violence or child protection or the specific problems Backbone and many individual women raised with the Review Panel."
The open letter also discusses issues raised by media and advocates related to Oranga Tamariki's uplift practices, including the role of the Family Court in taking children into state care. The Backbone Collective recommends:
"1. The urgent establishment of interim measures to keep women and children safe in Family Violence and Child Protection cases being brought before the Family Court.
2. The urgent establishment of a Royal Commission of Inquiry into the processes, procedures, conduct and culture of the NZ Family Court and Oranga Tamariki in relation to cases of family violence and child protection - with powers to subpoena witnesses, interview judges and officials and review case files."
Co-founder Ruth Herbert has also written a piece about patterns the Backbone Collective has observed in the stories they have heard from women about how the state funded system responds.
In an interview on Waatea News, researchers Dr Jacinta Ruru and Associate Professor Khylee Quince discuss how areas of family law including the Family Court and Oranga Tamariki - Ministry for Children have not adequately or prominently considered and given effect to Te Tiriti o Waitangi. They note that legislative changes related to Oranga Tamariki coming into effect on 1 July 2019 provide new opportunities.
Jacinta Ruru and Khylee Quince have explored this with co-authors Tania Williams, Horiana Irwin-Easthope and Heather Gifford in a newly published paper on the Care and Protection of Tamariki Māori in the Family Court System (2019). The paper urges the government to give effect to long-standing Kaupapa Māori models for developing new legally-required evaluation measures aimed at reducing the disparities for Māori children and young people who come to the attention of Oranga Tamariki - Ministry for Children. This is the first of a new series of think piece papers published from Ngā Pae o te Māramatanga.
During the financial year 2018/19 the Ministry of Justice reviewed legal aid policy settings. Key themes in feedback from providers included: provider remuneration, eligibility thresholds for civil/family legal aid and the administrative burden on providers of legal aid processes. However Budget 2019 did not include funding to implement changes from this review. The Ministry of Justice is continuing to examine other areas of legal aid process for improvements. It has also begun a large piece of work reviewing provider application, approval, contracting and quality assurance processes.
A number of United Nations representatives, including the UN Special Rapporteur on violence against women, its causes and consequences have signed a joint statement addressing intimate partner violence (IPV) and child custody saying:
"The Platform of undersigned United Nations and regional independent mechanisms on violence against women and women’s rights voiced its concern over patterns across various jurisdictions of the world that ignore intimate partner violence against women in determining child custody cases. These patterns reveal underlying discriminatory gender bias and harmful gender stereotypes against women. Ignoring intimate partner violence against women in the determination of child custody can result in serious risks to the children and thus must be considered to ensure and grant their effective protection."
The joint statement highlights how a number of international mechanisms affirm that IPV should be considered in child custody cases. In conclusion they wrote:
"... the Platform reiterates its call that, in determination of custody and visitation rights of children, violence against women is taken into account in all custody cases and that perpetrators’ rights or claims during and after judicial proceedings, including with respect to property, privacy, child custody, access, contact and visitation, should be determined in the light of women’s and children’s human rights to life and physical, sexual and psychological integrity, and guided by the principle of the best interests of the child."