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.

JUDITH COLLINS (National—Clevedon) : A bill of this nature is one that would normally be expected to have the support of every party in this House. This particular bill, however, has the support, from the select committee, of the Greens and the Labour members. It was my privilege to be one of the members of the Justice and Electoral Committee, which held the hearings on this bill.

I take this opportunity to mention and pay tribute to some of the members of that committee. Certainly, I will start with the chairman, Mr Tim Barnett. He was a very good chairman and he dealt with this matter—which is a very sensitive matter, and was very emotional for a lot of the people who came to the select committee—in a very kind and caring way. Mr Stephen Franks, was the deputy chair, and Lianne Dalziel, Russell Fairbrother, Dave Hereora, Dail Jones, Moana Mackey, Murray Smith, Nandor Tanczos, and Richard Worth were all members of the committee for the purposes of this bill.

When I read out that list, members might have noticed that several lawyers are on it. Actually, only three of us have any experience working as lawyers in the Family Court, and they are Mr Dail Jones, Mr Murray Smith, and myself. I think we are the only lawyers in this Parliament who have had any experience working in the Family Court, and it is very interesting that not one of us supports this legislation. Perhaps that is because we happen to have had a bit of a taste of life and have had dealings with people who are extremely distressed and do all sorts of silly things to themselves, their families, and their children, because they are hurting so.

Parts of this bill are very good and I am really pleased that an effort is being made to open up the Family Court. The Family Court is a secret court. It is, however, a court where some very, very good people are working, particularly the Family Court judges. Over the years, I have found Family Court judges to be, in the main, extremely caring and kind people who are very sensible and do not like to see people using their children to beat up on their former life partner, and they have been greatly assisted by the appointment of Judge Peter Boshier as Chief Family Court Judge. He had a reputation of trying to have as open a court as possible when he was sitting as a Family Court judge, rather than Chief Family Court Judge. Frankly, it is refreshing that a new person will bring in new ideas and openness. He has been very open to opening the Family Court.

One concern that I certainly have in relation to the opening proposed in this particular bill is that relating to accredited media. I am very concerned that we have a term like “accredited” in relation to the media. The media should be accepted warts and all in my opinion. They do have a role that is incredibly important to a democracy. Sometimes we do not like everything they do. Sometimes we do like everything they do, but mostly we do not. Having said that, I have to say that I think that having a media person present and able to report what has happened in the court without actually naming names—without letting people know who is involved—adds a whole lot of credibility to the Family Court and its processes. To say that the media have to be accredited concerns me. If a media person, a journalist, happens to report a proceeding and in that report is critical of the judge’s decision, or of something else that happens in the court, then that person could be under the threat—in his or her mind, anyway—of being thrown out and not allowed to report Family Court proceedings. That is a concern I have in relation to the bill.

One of the problems with the Family Court is that people expect the court to solve their problems. The Family Court can never solve people’s problems. All that the Family Court can ever do is to try to help people through a process so that they can solve their own problems. For some people, that will never happen and, unfortunately, it is their children who lose, every single time. It is well known in this House that Ms Dalziel and I are not always the closest of friends. Having said that, I noticed, all the way through, that we did agree on one thing—and that is, what we thought about parents who use their children to beat up on each other. Certainly, we agreed in that area. Some of the things we thought should happen to such people would never be able to be put into this bill—they are probably against the law.

Having commented on some of the things about the bill that are good, I want to point out that some things about it are bad. It is bad that guardianship will now be so easy to get. The current situation requires that for someone to be appointed a guardian, there needs to be a hearing of the Family Court. Papers and affidavits need to be filed and people need to be investigated, to a degree. The process being promoted in this bill is that a parent can appoint as a guardian, a short-term—as in 1 year—partner of that parent, simply by completing a form and registering that form with the court registrar. No one else gets to look. That is a huge concern to me. The obligations and responsibilities of a guardian, which are incredibly similar in law to those of a parent, should never be taken lightly. For someone simply to be able to fill out a form and get that position is downgrading the role of guardians, and it is downgrading the role of parents. Parenthood and guardianship are extremely important and should never be left to the whim of people who think that just because someone happens to have been living with them for 1 year, that will turn them into happy families. It will not. It never does. Children have never been able to turn things into happy families. Children are themselves, and are simply part of families, no matter what the rest of the family looks like or acts like.

This bill is predicated on a view that the current law, the Guardianship Act, does not reflect families as they are today. That is bunkum. It is wrong, because families have always been mixed. It has always been a fact that they have not performed to The Brady Bunch ideal. In fact, ideal was not the ideal, either. This bill starts off on a PC bandwagon—the PC bandwagon of saying: “We’re going to have to change it.” We know what this bill is all about. There are some quite good things in it, but mostly it is about making it easier for people to become guardians, for taking away concepts of custody and replacing them with terms like “day-to-day care”, which reduce parenthood and guardianship down to a level slightly less than a caregiver in a childcare centre. Yes, custody does imply a sort of ownership, and that is because parents have rights and responsibilities in relation to children. A parent will say: “Yes, my husband and I are in charge of our child. Yes, we do make decisions for our child. We don’t just provide day-to-day care.” We cannot do that as a parent—we cannot say, as in this particular provision: “Oh, this is great, because, as the Minister said, more people can now be responsible.” Responsibility by committee means that nobody is responsible for a child, and that is one of the biggest problems for children in this country. So many people are interested, but who is responsible? My answer is that mum and dad are responsible, or their legally appointed guardian is if they are not there. That is who it must be. Certainly, wider whānauāinga, family, must be there too, but all children are born with a mum and a dad somewhere, and it is those people who must have the primary responsibility for their children. If they do not, nobody, eventually, will be responsible.

So, unfortunately, I do not feel able to support this bill. Unfortunately, it contains too many provisions. I have not even dealt with the provision dealing with consent to medical procedures, because I will deal with it more fully in the Committee stage. This bill could have been something we could have supported—if the Government had listened to us. But, unfortunately, the Government has not listened to those of us who have been family lawyers and have had actual experience—Mr Smith, Mr Jones, and myself.

TIM BARNETT (Labour—Christchurch Central) : At the last three general elections, fathers’ groups in Christchurch have called meetings of local candidates from different parties where they have berated us for our failure, collectively, to reform the guardianship law. So I was proud to be chair of the Justice and Electoral Committee that was able, finally, to handle this matter—a matter that had been left for a long time. I am proud to be part of a Government that bit the bullet, and it was great to be part of a select committee that succeeded in making what I think are a lot of positive and constructive changes to this legislation.

The committee, as reported in the commentary on the bill, had the bill for 1 year. It received 277 submissions, and it heard 102 of them over a period of 38 hours. We were also extremely fortunate to be sitting at the time when Judge Mahoney, the Principal Family Court Judge, retired. We heard from him both before and after he retired. The new judge, Judge Boshier, took over. We heard from him as well, and saw some of the subtle differences in terms of his approach. But both those eminent people from our judicial profession were able to influence the shape of the legislation.

We considered the bill for a further 34 hours, which gives the House some idea of the detail into which we went. I want very quickly to trace some of the changes, and I reiterate that at all times we returned to that key phrase and that key question: what will best meet the welfare and best interests of the child?

We looked at the purpose of the bill. We strengthened it around the area of children’s rights. We added in guiding principles to give the courts some guidance when making those crucial decisions. We led on the issue of openness of Family Court proceedings, and I am sure that that will be built on in time to come. We looked at the area of parenting orders, and we focused very strongly on mechanisms to ensure voluntary agreement between parents. We added in access to counselling for disputes, and we added in the bonding system.

We heard from many submitters about the pain caused by endless delays in the area of interim orders. We set time frames in order to ensure that the decision about whether the final order should or should not be put in was made sooner rather than later.

We added new elements to the definition of “guardianship”. We looked at the process of appointment of additional guardians, which was referred to by Judith Collins, and we added in a series of checks on convictions and a time element, to try to make sure that at least some guarantees were in place.

The themes of all those changes, I think, were children-centred, and came back the whole time to the issue of the welfare and best interests of the child. Caution and conciliation were the two themes we followed. Judith Collins began her comments with the polemic statement that these are issues on which one should get cross-party agreement, but that that was not possible. The reality is that there actually was cross-party agreement on an awful lot of what is in the legislation, and on the changes that were needed.

It is also great as a select committee chairperson to report that we could point, in nearly all those changes, to submitters who had actually put forward those proposals. We were taking the evidence of people on the ground and reflecting them in the legislation.

There are three more issues to mention. One is the issue of shared parenting. There was a section on that matter in the commentary on the bill. I would have liked us to have fuller debate on that one. It was an issue we could return to only occasionally, and unfortunately one of its most incessant proponents had a bit of an absence during parts of the select committee process for other very genuine reasons. But I think that that debate is one that will continue.

Secondly, regarding the phrases “day-to-day care” and “contact”, I can tell members that we agonised over whether we could think of better language for that, and we ended up keeping what is in the legislation. Again, that debate may be returned to later.

The very last point is that of consent to abortion. I want to read out one sentence from the commentary that was agreed to by all parties on the committee: “Although the submissions we received contained many opinions about the clause, we did not receive any evidence of the provision being abused, even though it has been operative for 27 years.” Every party on the committee supported that wording I have just read out.

I would like to thank the other members of the committee—those who were there just for this legislation, and also our regular members, who did actually include a fourth lawyer not mentioned by Judith Collins: Russell Fairbrother. He has some experience in these matters, as well. I also thank our excellent and devoted officials who kept us going through those many hours.

I would like to say that although we are bound to debate some of the issues in this legislation, it is great, and it makes a once-in-a-generation change to a fundamental area facing lots of people’s lives. This has been an excellent opportunity to make the legislation even better. I commend the bill to the House.

DAIL JONES (NZ First) : I join with the Labour Party member, Tim Barnett, the chairman of our select committee in thanking the officials for all the work they did on this bill. We worked under a degree of pressure from the public, and we put the officials under considerable pressure from time to time, no less from me from time to time, and I do appreciate all the effort and assistance they gave the Justice and Electoral Committee.

New Zealand First will oppose this bill, as we have done from the very beginning. It is one of those very politically correct pieces of legislation that is meant to be a showcase but actually does nothing at all. The present legislation would still be far superior—other than in respect of the openness of the courts—than is this particular bill. Members will recall that when this bill was first introduced into the House we had that politically correct clause 17(2), which would have had the effect of permitting a lesbian to be referred to as “the father of a child”. That was never going to be a great start for this legislation, and, of course, the select committee had no trouble in getting rid of that subclause. The Labour Party had to concede that it was wrong there, as it has been wrong throughout this bill.

Unfortunately, of course, we were not able to remove all types of wording in that fashion. I refer members to page 118 of the bill—a bar 2 copy—where we have a similar type of wording for the procedure referred to there. Clause 167 inserts new Part 2, and I am reading from section 14(2), which states: “A woman who is not the birth mother of a child but who, by operation of this Part”—an artificial human reproduction procedure—“is a parent of the child must … be treated … in the same manner as the father of … the child.” So we still have a provision in this bill where a mother is treated as a father. Really, that is absolute nonsense.

The Auckland District Law Society subcommittee requested the deletion of the words “the father of” but this Labour Government did not do that. It is quite a simple amendment, but, no, the Labour Party, with all its resources, still has this provision that a woman, a mother through an artificial human reproductive procedure, ends up as the father of the child. I am reminded of the words of the Prime Minister of Italy in referring to a certain group as being anthropologically diverse from the rest of humanity. Well, I would suggest that a mother who in these circumstances is a father must certainly be anthropologically diverse from the rest of humanity, and the Labour Party must take all the credit for creating a new type of person in New Zealand. That was one amendment that could have been made with all the resources of the Labour Party but it was not, which highlights the ridiculous nature of this legislation and the careless way in which the Labour Party has approached it.

Of course, if this Government were serious about doing something for all those fathers in distress that Mr Barnett referred to, it would have done something more than is contained in this bill. It would have taken the domestic violence legislation and incorporated it into this one bill, so that we would have had one item of legislation for children who are at risk, rather than having fathers who care for their children but do not get custody of their children having to refer to domestic violence legislation on the one hand, and this bill on the other hand. There are contradictions between the two, which is always regrettable, because of the rush in which these things are done by the courts, and that works against fathers. Efforts were made to try to improve this bill, but this select committee really should have done as New Zealand First wanted—that is, it should have looked at the domestic violence procedures within the context of the Care of Children Bill. Without that, there was really no point in undertaking this legislation at all, because that was the real defect in our society, and it still remains the real defect.

That has been done before, in 1981 or 1982 when I was in this House. When I was chairperson in 1982 of a similar committee, there was a bill from 1981 that partially looked at the issues of domestic violence and non-molestation orders. We decided that they should be put together. We came back to the House in 1982, sought a recommendation of the House that those issues should be taken together, the House gave us that approval, and we went back to the select committee and incorporated them into legislation. Now, in this time and 22 years later, with all the resources available to this Government and with its so-called desire to improve the situation, the Government should have taken a similar step at the very beginning and incorporated domestic violence legislation as part of this bill. It should have done that, if it had any sincerity about the opening words it had in referring to the bill’s introduction. The Government said that it was introducing this bill so that it could “more effectively promote the interests of children and satisfy the needs of all New Zealand families.” Well, this bill does not do that. It fails on that very score alone, which is the most important one.

If one is a father or mother and wants to have things resolved, the present situation will still continue when applications are made to the Family Court. The Family Court judge will be put under incredible pressure by the wording of an affidavit that is not substantiated in any way at all. I know from practice, having acted for fathers and having had to deal with such affidavits from mothers, that it is a total failure when it is decided to oppose those in court. I had one case in particular where the judge said, halfway through the case: “Look, Madam”—because I cannot name the person—“this case does not stand up.”, and the case was thrown out halfway through the defended procedure. The courts will still have that problem today. Fathers will be no better off through this Labour Party legislation and, more particularly, children will be no better off than they have been before as a result of this legislation.

There is a bit of window dressing here, and a bit of window dressing there, and New Zealand First tried hard to improve the bill and make suggestions. I appreciate that from time to time the Labour Party accepted those suggestions. As Martyn Finlay, a former Labour Minister of Justice, used to say—

Simon Power: Oh, that’s going back a bit.

DAIL JONES: It is going back a bit, but some of us remember these things—it is the duty of an Opposition not only to oppose but also to propose. That is what I enjoy doing at the select committee.

Darren Hughes: What did Peter Fraser tell the member?

DAIL JONES: No, I was not here when Peter Fraser was here. I did not even have his picture on the wall, so the member can rest assured on that. So that is the duty of an Opposition, and that is what we try to do in New Zealand First. If we cannot fix it entirely, we still make a go of fixing it partially—if we can. That is, perhaps, what we did in that select committee.

But generally speaking, that is the crucial failure of this legislation. There have been words changed—parenting orders, day-to-day care, and such like—but as Judge Mahoney said when he gave evidence before the committee, just changing names does not change anything. The same problems continue, which is what Judge Mahoney made quite clear. If it is a custody order today or an access order today, calling it a parenting order tomorrow does not change it terribly much. It looks nice, and it is the sort of window dressing that this politically correct Labour Party likes, but that party does not understand what is happening on the floor of the Family Court—as National member Judith Collins said. Those of us who have appeared in the Family Court know that names do not really matter at all. The court is dealing with children in the main, and I am mostly concerned in this legislation about custody and access-type cases or parenting cases. But it is the children who matter; and the children who lose access to their fathers today will continue to lose access to their fathers as a result of this bill. It will do nothing to improve their situation, at all.

I appreciate the work done by Barnados and others, in very difficult circumstances. They are given the buck to carry as a result of the problems in our society today, and what they do is greatly appreciated by me and, I am sure, by everyone. But they know the strains that exist in the courts, and everyone involved in those courts will know the failing of this Government with regard to this legislation.

It is good to see the opening up of the courts, and Dr Muriel Newman has made quite a name for herself in that respect. Some congratulations are due to her for persisting with that effort. I suspect that she is not satisfied yet, and possibly never will be, but we will hear about that shortly. But, clearly, there is an improvement in that respect in this bill.

Finally, as far as clause 37 is concerned, I tell members that I voted against it in 1977.

Moana Mackey: Really?

DAIL JONES: I did. I checked the records. I voted against clause 37 in 1977, and I will vote against it again today, tomorrow, and the next day. If Judith Collins’ amendment goes through the House, which I will support, I will then obviously have a different view of clause 37. But it is odd that under clauses 35 and 36, the parents of children have to be notified if certain things go wrong with them, but under clause 37 the parents of children are not notified if things go wrong. That is totally inconsistent, and makes an absolute nonsense of the provisions of clause 37. New Zealand First will be voting on clause 37 and on Judith Collins’ amendment according to their consciences.

METIRIA TUREI (Green) : The Greens are fully in support of this bill and are pleased to see that it has finally made it back to the House for its second reading. Firstly, I want to thank the Justice and Electoral Committee staff and the officials for all their hard work during the hearings of this bill and particularly during the submission process. The committee worked very hard for a long period of time. I also thank the members of the committee. Together we worked very hard and very well. I acknowledge the chair, who managed the committee with a real sense of cooperation, rather than conflict, despite some of the more obvious difficulties.

The bill assists members of a family that suffers a break-up that cannot otherwise be amicably resolved. About 90 percent of families that, for some reason or another, do break down are able to resolve their issues without recourse to the courts. But in that small percentage of cases where families do need some assistance this bill will give them better access to justice for all the members of that family—the child and the adults who surround that child, including not just the parents, but also the wider whānau who are integral to that child’s life. The Greens are very pleased to see that the emphasis of the bill is on the best interests and welfare of the child as the first and paramount consideration. It is absolutely critical that the children’s interests highly influence the decisions of the court.

We are also very pleased to see the inclusion of a set of principles in the bill, which will help to guide, not just the courts, but also the lawyers, counsellors, and the families and parties that need to use the provisions of the bill. The inclusion of a set of principles was strongly supported by a number of submitters, particularly those who advocate for children’s rights. These principles give weight to the importance of the parents’ relationship to the child, but without imposing specific obligations on the courts to require the child to have prescribed relationships. This approach is critical because family relationships are dynamic and children’s needs change over time. One size does not fit all, I guess.

Some argued in the select committee that an ongoing relationship with the biological parents was absolutely imperative and should be prescribed in some way by the legislation. In my view as a parent, these relationships are critical but when a family is in a period of breakdown it is counter-intuitive for the law to prescribe how those relationships should be managed. It only creates more conflict. In fact, the process should be open to the variety of relationships that the child needs in order to feel supported in his or her life, and where possible to keep open the opportunities for ongoing relationships in the future. That is not a prescription; it is a way to provide a process and an opportunity for all of the people in the child’s life to be involved.

Particularly in a break-up situation, a child may at times have a much closer and more interdependent relationship with other members of the family at the time of the break-up, for example grandparents or aunties. In those circumstances it may be in a child’s best interests that those relationships are given greater emphasis—at least for a period of time.

The Greens are very pleased that the principles in clause 4 do not emphasise specific relationships as such, but the continuity and stability of arrangements for the child, the ongoing cooperation between the adults in the child’s life, the impact and value of the broader whānau, hapū, and iwi of the child, and the child’s identity and language. We think that this really will help to focus the parties and the courts on what is important for the child’s well-being, as much as for the adults and their relationship.

The Greens do not support the amendment that Judith Collins has suggested to clause 37 regarding the consent for abortion. I listened very carefully to the submissions from experts in that field during the select committee process—medical practitioners and people who were involved in counselling and family planning. I and the Greens are confident that the current law, along with the experience and practice of the medical practitioners, strongly supports young women to advise their parents, and ensures that they do have the support they need if a young woman, for whatever reason, chooses not to tell her parents about her situation.

The Greens agree that mandatory notification could put these young women off getting assistance during pregnancy and that the consequences of increased young and solo parents, and of dangerous and illegal abortions, are too high. The Greens support the current situation and will not support any changes to the existing legal framework.

The bill explicitly addresses concerns raised by many fathers in New Zealand that the Family Court is biased against them. Many fathers made submissions on this issue, but after hearing the arguments the Greens consider that the bill meets many of the needs of fathers. It does that, firstly, by expressly stating that it cannot be presumed that placing the child in the day-to-day care of a particular person will, because of that person’s sex, best serve the welfare and interests of the child. Secondly, it does so by providing that a biological father will be a guardian automatically if he is married to, or living with, the child’s mother at any time from conception to birth, or if his name is on the birth certificate of this child, with his and the mother’s consent. I know of many examples among my personal friends for whom this will provide the protection they need to ensure that they are able, as fathers, to be active participants in their child’s life. The Greens consider that these are very good provisions in the bill and provide a protection that fathers have talked about needing.

We are also very pleased that the bill will treat same-sex couples in the same way that it treats heterosexual couples. For example, guardianship for 16 to 18-year-olds will end if the parents have consented to a de facto relationship—the definition of which includes same-sex relationships. The bill provides for same-sex couples to have access to relationship counselling in the Family Court, which is a service that the current legislation excludes them from. Of course, the bill also amends the Status of Children Act, so that when a child is conceived using assisted reproductive techniques, with the consent of her partner the partner of the birth mother is deemed to be a legal parent of the child. That provision includes de facto and same-sex partners. Under the current law, same-sex partners must seek guardianship through the Family Court if they want to legally clarify their parental responsibilities. That can be particularly unjust when a same-sex couple has raised children together for some time, with each partner equally committed to the role of parent—a role that the current law fails to recognise. I am very pleased to see that those provisions have remained in the bill.

The current Guardianship Act is tightly focused on the traditional nuclear family. In our view that is simply not appropriate in an increasingly diverse, multi-ethnic society.

One of the other issues that we also support is the increased openness of the courts. This is a very sensitive area because the courts do not deal with the kinds of public interest matters that perhaps a criminal, or even a civil, court might have, but with very intense personal issues. We were very concerned to ensure that any opening of the courts was careful and cautious. We consider that the provisions of the bill provide a careful and cautious approach to openness. We think it will help to deflect criticism against the court for being too closed and secretive, and provide much better information to users of the court to assist them in dealing with the issues through the processes.

Finally, the Greens are very pleased that the bill recognises the diversity of families that exist in this country, and ensures that the best interests of the child guide the courts’ recognition of the responsibilities of the adults who surround the child. Those adults may be the child’s biological parents, but not necessarily. They may also be the step-parents, same-sex parents, grandparents, and other near relatives. It is crucial that the close adults in the child’s life are clear about their respective responsibilities, and that those responsibilities are truly reflected in the reality of the child’s relationships with those adults. No law that attempts to mend the damage from the breakdown of a family will fit each family’s circumstances perfectly, but, in our view, this bill at least recognises the realities of children’s lives, and the diversities of the families in which they live.

Dr MURIEL NEWMAN (Deputy Leader—ACT) : I rise on behalf of ACT to speak on this Care of Children Bill. I have to say that it is with a great deal of sadness that I take this call. This bill was Labour’s promise to provide justice for children whose families have separated, and it has failed to deliver on that promise, in spite of assurances made in this House over the last 5 years. We all know that, in general, children with a mum and a dad overwhelmingly do better than children who do not have access to both their parents—that includes those who have grandparents and wider family members to support them. But at the moment in New Zealand today we have a family law system that ensures that if a family separates, then all too often a child is left without an ongoing relationship with his or her non-custodial parent—which, overwhelmingly, is the father.

I think it is a chilling fact that more children today lose a father every 3 months in New Zealand because of separation and divorce, than lost a father during the entire period of the Second World War. We are perpetrating fatherlessness in this country on a grand scale. It is a tragedy that this Government has not seen fit to do anything at all to turn that situation around.

I feel that of all the bills I have had to speak on during the time Labour has been in power, this one is the most shameful. Here we have a piece of law that will simply carry on the problem. The Labour Government will give all these assurances that the Care of Children Bill will make the situation better, but when we read the fine print, we see there is no change to the fundamental incentives in our family law that ensure children lose a father on a daily basis. Given all the research that tells us of the effects of fatherlessness on children, it is simply a shameful situation in which this Government has failed to act.

I get quite worked up about these issues, because I have brought into this Parliament three member’s bills that have tried to deal with these issues. Each time, the Labour Government has refused even to send the bills to a select committee, because it has said to this House that it will deal with these issues in its Care of Children Bill. The reality is that it has failed to take on board the heart of these issues. It has failed to take the difficult stances that would mean we could actually make a real difference in this area of social legislation.

Although I pay tribute the chairman of the Justice and Electoral Committee, Tim Barnett, who I believe genuinely did his best to try to address some of these issues, the point is that he had a Government or a Minister that would not play ball, and a Minister who was ideologically opposed to some of the issues that I certainly have been trying to raise.

The chairman, in his contribution, said that he—and probably every member in this House—had been moved by the fathers’ groups that had approached him. The fathers’ groups wanted the Government to pass legislation that would not leave them alienated, denied access to their children, and marginalised as a result. Unfortunately for those fathers’ groups, they will hear lots of assurances that things will be better, but the reality is that this bill will do nothing to address their desires.

This bill is Labour’s response to calls to introduce shared parenting in New Zealand. That was one of the members’ bills that Labour voted down. I take this opportunity to remind the House that had this bill included a provision for shared parenting, it would have included a rebuttable presumption that, just as two parents are equal, before a relationship breaks down, in their responsibility to their children—whether they both work or whether one stays home to look after the children, they are both considered to be equal in the responsibility to their child—so too, after a relationship breaks down, both parents should be presumed to have equal responsibility to that child, unless one parent can prove that the other is not suitable to be a parent.

That would mean, in effect, that the number of cases where a parent has proven to be unsuitable would be in the minority. So both parents, after a separation, would have equal responsibility to their child. That does not mean equal timeshare, or anything like that. It means equal responsibility. In other words, they would have to put the well-being and the best interest of their child first, which is what our guardianship law is meant to be all about. Rebuttable shared parenting would have put that into our law in a way that would mean that mums and dads would both have to be there to provide ongoing love, support, and care for their child, irrespective of the fact that they no longer live together.

I ask members, when they listen to that, whether it is an unreasonable stance, or an unreasonable provision to have been brought into this legislation. I say that overwhelmingly the answer should be no. It is common sense. That is why shared parenting is the law in countries like Sweden and Holland, why Australia is moving towards it, why it is the law in many states in America, and why it is a movement that is growing in strength in other countries around the world. It appears to me to be such a shame that the Government could not see the sense in putting that into the legislation, which would then have gained the ACT party’s support.

As it is, I remain totally disappointed that the Government could have fixed so many bad things that happen in family law by introducing that presumption, but has failed to do so. It would have taken the warfare out of separation and divorce, it would have ensured that both parents are responsible for their child in an ongoing way, it would have ensured that parents comply with child support, it would have taken away the fact that many parents today are like the walking wounded because they are denied any access to their children, and it would have ensured that children in New Zealand have the access and support of both parents, which many of them do not have today because of our family law.

Secondly, this bill was Labour’s answer to my two member’s bills to open up the Family Court. What do we have in this bill? We have Clayton’s provisions. We have openness in name, but not in substance. That is such a shame, especially given that two chief family court judges told the select committee that they would be comfortable with whatever level of openness Parliament wanted to vote for and give to the Family Court.

So we have a situation where we will still have censorship; where lawyers can object to the presence of other members, including the press, coming into the court; and where there will be name suppression—which, to be honest, I support at this stage. But what it means is that there will not be full openness in the Family Court, so a lot of injustice that currently occurs will be perpetrated by the bill. It is such a shame that the bill does not do what it should have done, and it is with great sadness that I say the ACT party opposes it.

MURRAY SMITH (United Future) : It is interesting that as we debate the second reading of the Care of Children Bill we find that the Government and the Green Party can find no fault with the bill, and that the Opposition parties of ACT, National, and New Zealand First can find very little good with it. United Future, as the centre party, finds itself in somewhat of a dilemma because we find that there is a great deal about the bill that is positive, but there are also considerable weaknesses. As the party that represents the family, we see that there are medium and long term dangers in this bill that will undermine family life in New Zealand, and further erode the position of parents in particular.

But there are a lot of positive things about the bill, and we believe that the environment it creates will provide short-term benefits in terms of family resilience—in particular, in the area of disputes, which are all too common in regard to family life. In particular, we are very pleased to see the statements in clause 4A, “Principles relevant to child’s welfare and best interests”. That clause follows the general statement in the bill that the child’s welfare and best interests are to be paramount. We agree that, when we are dealing with situations of conflict, it is important for our society that the primary focus is the children and what is in their welfare and best interests, as opposed to the parents who are in a state of disagreement. That is the right approach.

The principles that are enunciated have some very good things about them. The first principle is that the child’s parents and guardians should have the primary responsibility, and should be encouraged to agree to make their own arrangements, for the child’s care, development and upbringing. That is a worthy principle. It puts the obligation for the child’s upbringing and responsibility firmly with the parents, rather than with the State, rather than with medical and other professionals, and rather than with people outside that environment. It is important that the role of parents is reinforced, that parents are told by society that they have a valuable role and that the Government will uphold their role as the primary instruments in the upbringing of their children. Simply put, the State cannot do the job. It cannot do the job because it cannot afford to do the job; it cannot do the job because it lacks the love and compassion, and the sacrificial time and finances that parents give to their children in order to raise them in the best way that they can.

The second principle enunciated is that there should be continuity in arrangements for the child’s care, development, and upbringing, and that the child’s relationships with his or her family, family group, whānau, hapū, or iwi should be stable and ongoing. That also is something that society should be commending, and that the Government should be encouraging, so that we have a situation of family resilience, where we have parents who are being encouraged to stay together to bring up their children, where the stability of family life is the prime focus of the Government, and where the Government takes steps to ensure that children are put into environments that will be stable, long-lasting, and the best environments for raising our children. Sadly, that is not happening.

The third principle that the Government has agreed to adopt is that the child’s care, development, and upbringing should be facilitated by ongoing consultation and cooperation among and between the child’s parents and guardians and all persons exercising the role of providing day-to-day care for, or are entitled to have contact with, the child. This is a principle that United Future, in particular, pushed right from the outset of this bill, before it even got to the select committee, and that the Government agreed to support. It is the one that states that it is in children’s best interests that they should be brought up by both their parents—a mother and a father—and that those parents should be working together in a consultative and cooperative way in order to bring up the children. Unfortunately, from my experience that is a matter that, particularly in terms of the District Court, has not always been the case. We have been through cycles in which courts have decided in 90 percent of cases that it is in the best interests of the children for them to be put with their mother, and for the father to be excluded from their life. That is an unhealthy and unwelcome position. It is important, as this bill states, that children have access to both their mother and their father, and as much access as possible, and that we encourage mothers and fathers to cooperate and consult each other.

The fourth principle that I want to allude to is that the relationships between the child and members of his or her family, family group, whānau, hapū, or iwi should be preserved and strengthened, and that those members should be encouraged to participate in the child’s care, development, and upbringing. That is important, again, with the role of fathers in our society. One of the tragedies of our society is that we have too many absent fathers. Boys are not encouraged into fatherhood and are not encouraged to play their full role as parents, as they ought to be. In terms of the culture that has previously been operating in our Family Court we have found that the court has tended to say: “Well, let those fathers go. We don’t really need them. We’ll let the mother do all the caring.” That has been disastrous. The one thing, perhaps, that children in our society are missing more than anything else is regular, ongoing contact with fathers, and we need to encourage fathers to provide that role. That role has been grossly underestimated. As a society, we need to educate our fathers and convince them that they have an important role in their child’s life and that they should hang in there, stick in there, and provide that role.

Another aspect of the bill that I think is of value is the new emphasis on children indicating their views to the court, and on the court hearing them. Although I think that at times the rights of children can be taken too far, where they go beyond and supersede the rights of parents—as I have previously said, parents have the important role in terms of the bringing up of children and the nurturing of them—I think this bill is good in terms of its encouragement for children to be able to express their views in court proceedings in a direct way, either to the court or to the lawyer who is acting for the children, so that their views are taken into account. To that extent, I do agree with the Gillick principle that as a child gets older, the amount of notice taken of his or her view should be increased.

However, the thing that I really do not like about the bill, and find overwhelming, is the whole ideological bent that, effectively, subsumes the welfare and best interests of the child to other factors. As far as this Government is concerned, the interests of the child are OK as long as they do not infringe on the interests of partners of lesbian mothers, on the role of medical and other professionals where it conflicts with the parents’ rights, and on the rights and interests of women, in particular solo women, to be able to have children. The Government ignores the welfare and best interests of the child—despite the bill’s very fine principles—when it comes to those three areas. It is this ideological bent, which undermines the best interests of the child, that, I think, will cause many aspects of this bill to create bad families, and actually enhance the breakdown of families.

The whole drive in this bill from biological parents to social parents is a quagmire. It is something that will cause huge amounts of problems. Parents are biological parents—the natural mother and the natural father. As soon as we start denying that, and trying to invent social constructs of parenthood such as lesbian mothers’ partners, we get ourselves into all sorts of difficulties. I have no problem with a husband and wife, either legal or de facto, who agree to an assisted human reproduction procedure in order to construct a family, being known as the mother and the father. But I have a lot of difficulty with partners of lesbian mothers suddenly taking on fatherhood roles—guardianship, yes, that is fine.

So there are many aspects of this bill that we think are actually undermining of the family, and United Future will not support it because of those pervading aspects.

MOANA MACKEY (Labour) : I am very pleased to be able to stand and support this bill. I also was a member of the Justice and Electoral Committee that looked at it. We spent a large number of hours considering all the very complex issues that have been raised already around guardianship and the best interests of the child. In total, we spent 34 hours considering the bill, so we certainly did not take the issues lightly. There was plenty of robust debate, particularly when Mr Jones was present.

First, I think that the select committee has come up with a much improved bill. The Minister gave us a lot of leeway to look closely at a lot of the issues. In particular, we had a great look at all the issues surrounding shared parenting, the openness of the Family Court, and clause 37—a clause that has caused some controversy. In no way, I believe, did we feel constrained by ideology, as some people have suggested. In fact, we gave due consideration to all the issues and we thought about them very carefully.

The most important part of this legislation is that it puts the child firmly at its centre. That means—and I can speak for the Government members on the committee—that no matter what family situation children find themselves in, through no fault of their own, we need to make sure that they have all the adequate protections that the children born into traditional nuclear families were granted under the old Guardianship Act. That is really what we mean when we say “putting the child at the centre”. Many of the submitters focused overtly on the relationships that parents had, no matter whether they were good parents, supportive parents, or loving parents, or whether the child was doing particularly well. One child actually came to the select committee—a young boy of 14 who was being raised by a lesbian couple. His message to the committee was very strong: “If you really care about me, stop telling us we’re not a legitimate family. Stop telling us that we don’t count and that in some way my relationship with my parents is worse than someone else’s.” For the Government members on the select committee, that came across very strongly. We thought that if we were serious about putting children at the centre of this piece of law, then we needed to stop obsessing about the type of relationship their parents were in.

One thing that did come across—and Dr Muriel Newman was a strong advocate—was a concern that the court was biased towards mothers when granting custody. We heard from a lot of fathers and about a lot of really sad situations that had occurred—situations that made us worry about what the law was doing. We have put in the legislation that there should be no assumption that one parent, according to his or her gender, should have custody. The reality is, and the Family Court judge said this, that often the parenting order, or custody order, reflects what the day-to-day care or parenting was while the parents were together. The reason that fathers are often the ones who do not come out as the person holding that order is that it is more likely to have been the mother who was at home looking after the child, and that is reflected in the custody order. Unfortunately, when families get to the stage of needing to have their affairs sorted out by a court, it is never easy. It is important to reiterate what was said by Judith Collins and MetiriaTurei—that we are dealing with people at the extreme end of the spectrum who have lost all ability to talk to each other, and who often use their children as a pawn in their particular game.

One big change that we made in the select committee related to the concern we had about the abuse of ex parte orders made under the Domestic Violence Act. In fact, the suggestion was made that they were being used to alienate fathers from their children for a significant length of time, so that when the order was eventually made the father had been away from the child for so long that the court considered that the mother should have custody of the child. We have put a time limit on those orders so that they cannot be dragged out to the extent they have been. I think that is an important change that we have made.

The openness of the Family Court was something we talked about a lot. The previous Family Court judge and the present one came to the committee, and they supported the opening up of the court to accredited media. I heard what Judith Collins said about opening it to all media. If I recall correctly, the concern we had was to keep out of the court people who might be there to intimidate or to try to cause some offence to one of the parties coming to the court. If “accredited” media was not stipulated, other people might be able to come along and say that they were from a particular newsletter, blah, blah, and we would not have any control over that. That could be a back-door way in for people who wanted to intimidate either party to the proceedings, or the child. That is why we stipulated “accredited” media. We did give that issue some consideration.

We also considered the matter of shared parenting, and it was a real shame that Dr Newman was not able, for quite valid reasons, to be there for some of our discussions. Where we parted ways was over the fifty-fifty time. I personally do not believe that fifty-fifty time is a good arrangement for children.

Dr Muriel Newman: Not time.

MOANA MACKEY: Dr Newman said: “Not time.” This is somewhat of a replay of our discussions in the select committee. If I am correct in stating the member’s position, then she believes that fifty-fifty time should be the fall-back position if something else cannot be sorted out. I completely agree with fifty-fifty responsibility, and I believe that that is what this bill supports, but I do not support fifty-fifty time. I do not believe that is in the best interests of the child. I think it is in the best interests of the parents, which is exactly what we were trying to get away from in this legislation.

Probably the most important change the select committee made was in recognising that families come in all different shapes and sizes. Under this bill that will be supported. No child will be born into a family that cannot have the same protections as any other family. On the select committee we were accused, often, of social engineering. I finish by saying that I find it ironic that the people who were accusing us of social engineering were the very ones who were asking us to legislate what a family was.

KATHERINE RICH (National) : It has been very interesting listening to the speeches on this very important issue, but I do have some concerns about some of the things I have heard from United Future this afternoon. I fully understand much of the rhetoric about the importance of children having a mother and a father, and how the research that demonstrates the success of the traditional family is very important. However, when one looks at putting the child at the centre of the legislation, as the previous speaker has just outlined, then suddenly one has to look at things from the child’s perspective. In particular, when a child has gay parents, or when a child lives just with his mum or his dad, we need to be very careful in the way we discuss the issue. We do not want to give kids the impression that somehow they do not make the grade because they do not have a traditional family and their situation is not as important as anybody else’s.

Often when I am thinking about parenting I think of some friends of mine in Dunedin—a lesbian couple who have just had a young baby. They tried for quite some time to adopt, but that was not possible for them. They both worked for Plunket, so nobody would doubt for a moment that they had a very strong commitment to the care of children and an interest in children’s well-being. I look at the way in which they parent their two children and I do not think that anybody in this House could criticise them for their commitment and the way they take on the role of being parents. The people here who start to criticise some parents because of their sexual orientation forget, once again, to look at the issue from the child’s perspective. A child just wants to be loved and to have parents who are taken up with his or her care and interests. I totally believe that parenting is a two-person job.

• Debate interrupted.