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Family Matters No. 33 - December 1992

What's new in family law?

Children's rights and parental responsibilities
Margaret Harrison

Abstract

The author reports on three papers on children's rights and parental responsibilities presented at the fifth National Family Law Conference hosted by the Family Law Section of the Law Council of Australia in Perth in September 1992. Alan Ward of the English High Court of Justice spoke on the major features and philosophy of the United Kingdom Children Act 1989. Jim O'Donovan of the Family Court of New Zealand discussed care and protection issues under New Zealand's Children, Young Person's and their Families Act 1989. Finally, Eric Baker of the Family Court of Australia outlined recent Family Law Act amendments regarding the welfare of children.

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.