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Child and Family Protection Bill — First Reading

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Child and Family Protection Bill

First Reading

Hon SIMON POWER (Minister of Justice) : I move, That the Child and Family Protection Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee for consideration. This bill is the next step in this Government’s commitment to reinforce the ability of the courts to act to protect children and families from all forms of violence.

This Government has already taken action to ensure that perpetrators of domestic violence are made more accountable for their behaviour. The Domestic Violence (Enhancing Safety) Act passed in October last year strengthened enforcement of the Domestic Violence Act 1995 with the introduction of on-the-spot police safety orders. The Act also amended the Sentencing Act 2002 to enable sentencing judges in the criminal court to issue protection orders on behalf of victims.

The Child and Family Protection Bill now takes the next step with measures that will ensure that court processes and programmes are more responsive to the needs of victims of domestic violence, including in particular child victims. In 2007, 6,400 children were involved in applications for protection orders. Most of those children had witnessed violence and some had been subjected to violence directly. The bill clarifies when protection is available for child victims of domestic violence, and provides the court with a greater ability to review care arrangements when children are involved in domestic violence proceedings.

Circumstances occasionally arise when it is not clear whether a child remains covered by a protection order, such as when a protected person dies. The bill therefore affirms that any child of a deceased protected person remains protected.

The bill makes it clear that a protection order applies for the benefit of any child of the applicant’s family until he or she is 17 years old. Once the young person turns 17, the bill allows that person to apply to the Family Court for the current protection order to continue. Section 54 of the Care of Children Act currently enables the court to make interim care or contact orders to protect the welfare and best interests of the child when a protection order is made. This bill moves that provision into the Domestic Violence Act to underline the importance for the court to consider care and contact arrangements when children are involved in domestic violence proceedings. The bill also provides the court with a new discretion to offer a review of care and contact arrangements where a temporary protection order is made without notice.

A second group of amendments to the Domestic Violence Act will involve court processes and procedures. The bill enables the court registrar to make changes to a direction to attend a programme, such as adjusting the date and time of the programme where necessary to enable a respondent to attend. Other measures remove any opportunity for a gap between a temporary and final protection order that could result inadvertently in protected persons having no protection.

Amendments to the Care of Children Act 2004 will also provide greater clarity and flexibility regarding the protection of children. The Family Court deals with many families who are involved in proceedings under both the Domestic Violence Act and the Care of Children Act. More consistency between the two Acts is desirable, particularly to ensure that the Care of Children Act is clear that protection is available to children who are victims of psychological abuse. The bill therefore amends the Care of Children Act to reflect the same definition of violence used in the Domestic Violence Act, clarifying that “all forms of violence” means physical, sexual, and psychological abuse.

The bill ensures that the court may make an order allowing a person who is subject to a protection order to take care of, or have contact with, a child only if it is satisfied that the child will be safe.

The bill enhances the protection of children who are at risk of being wrongfully removed from New Zealand. It delivers on New Zealand’s commitment to protect the welfare and best interests of children internationally. When seeking to obtain an order preventing the wrongful removal of a child from New Zealand it will no longer be necessary to prove that the risk of someone taking the child out of the country is imminent. It is also proposed that the orders be made more flexible. Previously, parents may not have wanted to seek an order, because they want to retain the ability of the child to travel overseas. I hope that these changes will encourage parents to apply for these orders in all cases where they are necessary to protect children.

Finally, the bill includes a new offence under the Adoption Act 1955 of improperly inducing consent for the adoption of a child. This is the last legislative amendment required for New Zealand to ratify the United Nations Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. New Zealand signed the optional protocol on 7 September 2000, but has yet to ratify it. This bill will make it an offence for a person to induce another person, by improper means, to consent to an adoption. The new offence will apply whether it is committed domestically or transnationally, and will attract a punishment that reflects the gravity of the crime—up to 7 years’ imprisonment. Ratification of the optional protocol will demonstrate this Government’s commitment—and I hope this Parliament’s commitment—to ensuring that New Zealand meets its international obligations to protect children from economic and sexual exploitation. I commend this bill to the House.

Hon LIANNE DALZIEL (Labour—Christchurch East) : Labour will be supporting the Child and Family Protection Bill. In 2008 the Hon Annette King introduced the Domestic Violence Reform Bill, and it is now at the bottom of the Order Paper. It was, of course, abandoned by this Government so that it could do two things. The first was to introduce the Domestic Violence (Enhancing Safety) Bill, which picked up the police protection order provisions of Annette King’s bill and was passed after being divided into two separate bills. That then left a number of other provisions that needed to be passed; hence the bill that we have before us tonight.

But there have been some major omissions from this bill. When we add up the bills—the divided bills with the police protection orders in them that have already been passed, and this one—there are still some glaring gaps, and I want to—

Hon Simon Power: That’s why it’s still on the Order Paper.

Hon LIANNE DALZIEL: Oh, the Minister is actually saying he will address the other issues with the Domestic Violence Reform Bill.

Hon Simon Power: I wouldn’t have it on the Order Paper if I wasn’t going to.

Hon LIANNE DALZIEL: Oh, I do not know about that, but anyway I will wait and see. The Minister has said he is leaving Annette King’s bill on the Order Paper so that it can be addressed at a later stage. I will be very interested to talk to him about what that timetable might look like.

I will talk about the omissions from this bill, because I think it would be very good to know, maybe from the next Government speaker, why there is the delay with the additional provisions—if it is indeed a delay, and they are not being put off into the never-never. I welcome the changes included in this bill that originally came out of the Domestic Violence Reform Bill. The Minister has gone through those provisions. There is really only one provision in the legislation that was not included in the bill that Annette King introduced, and that was the last provision that the Minister mentioned.

I will quickly run through the provisions of the bill, just to indicate the support that the Opposition has for them. First of all, clarifying the law around the application of protection orders for young people when the applicant dies is clearly something that needs to be tidied up. There are, of course, provisions to enable the Family Court to make interim orders relating to a child’s care or to vary existing orders, even though no application has been filed. This is important. It came up during the consideration of the discussion document that we put out during the domestic violence review that the previous Government was responsible for. We identified that quite often the courts were not attuned to the provisions of the Care of Children Act when they were looking at a domestic violence application. It was therefore important to write in this provision. I think it is really just to draw the judges’ attention to the fact that this is something that they should resolve at the time that they are dealing with a domestic violence application.

Issues of contact are to be addressed by ensuring that the Family Court reviews those arrangements within a few weeks after a temporary protection order is made. Again, the need for this provision came through very clearly in the discussion document that we put out. It was really important that the law codified the practice that has now been developed in the Family Court in that regard.

The bill removes the administrative barriers to engagement in stopping violence programmes. We know that there are issues around effectiveness levels in stopping violence programmes, but where they are willingly participated in we know that the success rate is much higher, so therefore removing those administrative barriers will obviously be of advantage.

In relation to the extension of the Care of Children Act to address all abuse, including psychological abuse, in terms of the care and contact arrangements, I want to put it on the record that I was on the Social Services Committee, which considered the bill. After hearing a lot of evidence on this, we decided to exclude the psychological abuse provisions that related to the domestic violence legislation from the care and contact provisions in the Care of Children Act. I think we got it wrong. I am not ashamed to say that; sometimes we do. Sometimes it is a question of a judgment call, and it is based on the evidence and the submissions received at the time. I think this is a good tidy-up of the legislation. Too many gaps have been left in the difference that exists between the two bills, so I really do think this provision does strengthen the protection for children, as the Minister has said. I strongly support this change coming in.

There is then the provision that I have been waiting for, for a long time. Actually, I do not think the Minister mentioned this particular provision in his commentary. It is the question of the ability to discharge a section 105 order, which is essentially a Hague convention provision ordering a child to be sent back to the other signatory party’s jurisdiction, where the guardianship arrangements should have been dealt with in the first place. The case referred to in the explanatory note of the bill, ButlervCraig, involved a constituent of mine, and that is why I have always felt that this is an important case to address. It highlights a gap in our law, and it is one that is commonly addressed in other jurisdictions. I do not think people should be nervous about giving the court the power to cancel one of these orders. Other Hague convention countries do exactly the same as what the bill proposes, and I think it is important that our law allows for that, as well.

Finally, the bill makes changes to the Adoption Act, by introducing a 7-year sentence for inducing another person to consent to an adoption. I think the point that the Minister did not make is that the whole point about bringing in the 7-year sentence is to create an extraditable offence, which gives us the international reach that, unfortunately, we do not have under our existing law. It enables the ratification of the optional protocol to the United Nations Convention on the Rights of the Child, as the Minister said. I totally support this change. This issue is a serious matter internationally, and I just reflect on the scene in Haiti involving a group of people going in and grabbing children in order to take them out of the country for adoption. I do not know what the motives of those people were, and I am not making a judgment call on them. I am just saying that in those sorts of situations we have to be really, really careful that the law is strong enough to protect against the unlawful trafficking of children. That could have been the case in Haiti; who knows whether they were a genuine outfit. So this provision is very important.

I remember attending the World Conference on Women back in 1995 and being at a table with a group of women politicians from Romania, from whom I heard about the impact of international adoptions on children from that country. People were taking personal responsibility for wanting those children to be cared for; we saw terrible scenes in the orphanages back then. But the message those women were giving to politicians from other countries was that we should stop stealing Romanian children. They agreed that Romania had a problem that needed to be addressed, but they said we should think about the long-term impact on children of totally ripping them out of engagement with their families. As we saw in Haiti, family members will sell their children, not for personal benefit but so that their children will have more advantages, whether educationally or with regard to positions, or whatever else. They will allow their children to go, but long-term emotional damage can be done to children in that situation, when they are dragged away from their family, culture, language, and all of those things. There has to be the capacity for children to return to their families, as well. So the Minister is bringing in a good change, and it certainly has support on this side of the House.

Compliance with the United Nations Convention on the Rights of the Child is obviously important, but it has been made kind of ironic by the exclusion from the other bill of the definition of a minor. I think it was really important that we lifted the age from 17 to 18, not only for the sake of compliance with the United Nations Convention on the Rights of the Child. It also made me wonder whether there was a connection between this and the bill we are just dealing with, which drops the age of criminal responsibility for a range of offences in addition to manslaughter and murder in terms of the Youth Court’s jurisdiction, and whether that has something to do with the failure of the Government to address the problem where 17-year-olds can simply fall through the cracks. I was thinking of what the Minister said about the circumstances that these young people can find themselves in, in terms of being exposed to family violence. Then I heard the debate we have just had on the previous bill, and I was thinking about the long-term consequences of the damage that domestic violence does to children, even when they are just hearing the violence or experiencing the violence around them, rather than being directly involved. That long-term damage can lead to the sort of outcomes that we were just talking about with regard to the previous bill. So I would like to think that we could address that at some stage in the very near future.

A couple of other provisions have been left out of this bill, such as the question about without notice applications for protection orders being declined, and the need for written reasons. Those provisions were based on very, very important reports that were done for both the Ministry of Women’s Affairs and the ministerial task force on family violence. I think it is really important that the Government seriously thinks about including those additional provisions in the bill sometime soon.

CHESTER BORROWS (National—Whanganui) : It is great to be part of a debate where there seems to be some sort of unanimity across the House. As the previous speaker, Lianne Dalziel, indicated, it is a little bit of an unusual thing to find that just minutes after we have been metaphorically at each others’ throats—probably not good terminology to use when addressing legislation that addresses violence—a Government that had it so wrong just 5 minutes ago now apparently has it so right.

I think it is interesting to draw the conclusion that the Child and Family Protection Bill does not stick so rigidly to age thresholds. Previously, huge assertions had been made that people are children until they are 13 and 364 days, then they miraculously become young people. The fact is that domestic violence and dysfunctional families blur the lines between ages.

We have to have a stocktake of where our country is in respect of domestic violence in particular, but also violence in general. Police are called to about 80,000 domestic violence incidents a year. We know that in a huge number of those cases, children are present. Over time, messages of violence can be inculcated in them, and it can be an answer or an option for them when we know that it is not.

We also know that with over 200 women and children killed in domestic violence over the last 12 years, it is clear that New Zealand is facing an epidemic of domestic violence. Thankfully, that has started to be addressed, which is a good thing. We have found that because of the promotion of the idea of reporting and the building of confidence of people who were offended against in this way—and the ability of agencies to deal with it—those people went on to report domestic violence, so we saw an escalation of family violence reporting. It was very disappointing to see a downwards trend in the number of applications for protection orders. It is very important to have legislation that reinforces the place of protection orders in domestic violence circumstances and does a little bit of manipulation, as this legislation does, to ensure that they are effective and they can be made effective. Therefore, we can enhance the confidence those people have that if they go on to report an instance of domestic violence, then it will be addressed and over time things will get better.

In the relatively short experience I had as defence counsel, I noticed that those men who are forced into obtaining counselling and go on and eventually do it, no matter how unhappy they are about having to do that, invariably gain an insight if they are prepared to turn up sober. To have the ability through this legislation to extend the ability of those men to attend, or at least initially be forced to attend, means we have some hope for it.

It is good to see that we are recognising the severity of emotional violence and psychological abuse, and broadening the application of that across the legislation, and it is great to be part of a team in Government that is enhancing the legislation to deal with domestic violence. In the last short couple of years we have seen additions to the suite of legislation that deals with these things so well. I am pleased to see that the bill has support across the House. Thank you.

CHARLES CHAUVEL (Labour) : I agree with one thing that the previous speaker Chester Borrows just said: we do have a problem with domestic violence in this country. Anybody who looks at the statistics will be able to confirm that. In 2008 the police responded to over 82,000 incidents involving some form of that sort of violence. Between 4 percent and 10 percent of New Zealand children reported experiencing physical abuse. Twenty-four percent of girls and 11 percent of boys reported such abuse. In 2007, 6,400 children were involved in applications for protection orders. Most of those children had witnessed violence and others had been subject to violence directly.

At the same time there has been an increase in the international movement of children for adoption purposes. Current powers in the legislation to deal with this phenomenon are quite clearly inadequate. It is obvious that New Zealand needs laws that better allow the prosecution of offences relating to intercountry adoptions. Those are the reasons why Labour introduced the Domestic Violence Reform Bill in 2008. As has been pointed out, the Child and Family Protection Bill re-enacts many of the provisions that appear in that bill, so we have decided to support it.

I will highlight three particular provisions that are the basic and essential reasons why we are supporting this legislation. The first is the set of provisions amending the Domestic Violence Act 1995. Clause 6 would amend section 16 of the Act to make clear that a protection order will apply for the benefit of a child of an applicant until the age of 17 unless the order is discharged earlier. That is really important. The bill also clarifies that a protection order that has not lapsed or been discharged continues for the benefit of any child of a deceased applicant until the age of 17, as well. The Domestic Violence Act at the moment is silent on those matters. The bill also inserts into the Domestic Violence Act a provision to put it beyond doubt that the Family Court can make interim orders relating to a child’s care or to vary existing orders even if there has not been an application filed. Finally, as far as the Domestic Violence Act is concerned, the bill makes it entirely clear that any lawyer appointed to act for a child under the Care of Children Act may, as of right, be present at a hearing of proceedings under the domestic violence legislation.

The second set of provisions—clauses 17 to 28—amends the Care of Children Act. The bill will provide that where a protection order has been made against a party to an application for a parenting order, the court may make an order allowing that party day-to-day care of, or contact with, the child only if the court is satisfied of the safety of the child. If there is any doubt as far as the court is concerned, then the court can make an order for supervised contact between the child and the party. The bill also strengthens the protection for children from unlawful removal from New Zealand.

The final set of amendments—clauses 29 to 35—amends the Adoption Act, and I will turn to them now. As Lianne Dalziel said, these amendments would ensure that New Zealand can ratify the United Nations Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The bill amends the Adoption Act to create a new offence of improperly inducing consent for the adoption of a child. This offence will be punishable by a maximum term of 7 years’ imprisonment. As has been pointed out, under the law, and under the treaties to which we are party, that will make it an extraditable offence, and that will allow us to ratify that optional protocol to the convention.

I have said that Labour will support the bill, but I think members will have gathered that we do not do so uncritically. The exchange between the Minister of Justice and my colleague earlier indicated that Labour’s Domestic Violence Reform Bill remains on the Order Paper. We on this side of the House are mystified as to why that legislation simply has not progressed. Labour carried out extensive consultation and research before introducing the bill. It would have been preferable if National had done the right thing, had not played politics and re-branded the legislation as its own, but had simply got on and speedily progressed our bill through Parliament. Instead, like many aspects of National’s programme so far, the introduced legislation just rehashes much of what was proposed by Labour and re-brands it as National’s own. But it does so imperfectly, and I will point to five areas where this bill does not go far enough or fails to make important provisions.

The first area relates to the fact that Labour’s Domestic Violence Reform Bill changed the definition of “child” in the Domestic Violence Act to someone under the age of 18, and that was in compliance with the United Nations Convention on the Rights of the Child. Currently, the legislation defines “child” as anyone under 17, so if Parliament passes the current legislation, it will be non-compliant with our international obligations. As Lianne Dalziel said, this is especially ironic in light of the pains that the current bill takes to allow for ratification of the optional protocol to the convention on the point about creating an extraditable offence where trafficking or other serious crimes concerning children are committed.

Secondly, the bill does not provide the court with the power to direct attendance at an addiction treatment programme. Labour’s bill did that, and if National was serious about dealing with the causes of crime, then this bill would as well.

Thirdly, Labour’s bill introduced a provision requiring any judge who declines a without-notice application for a protection order to provide written reasons for declining the application. This was to make sure that a declined applicant could decide on an informed basis whether to proceed instead on notice. National’s bill does not include any such provision. Why weaken potential protection for a victim in this way, unless the Government is simply paying lip-service to the interests of actual or potential victims of crime?

Fourthly, Labour’s bill made provision for applicants to be able to attend information sessions that would provide advice on making effective use of protection orders, and advice on any social assistance that might be available. Again, that provision would have been of great assistance to those potentially at risk. Why has it been omitted? Because National clearly does not really care about those who are actually or potentially at risk.

Fifthly, and finally, Labour’s bill also contained much better provisions concerning applications for the discharge of protection orders, and it allowed the court to order reports if necessary. It is simply inexplicable that any Government claiming to care about the vulnerable would not have re-enacted those provisions.

Judith Collins issued a media release on 1 October 2009, and in that media release she claimed that National’s two new bills—the replacements for the Labour bill that I mentioned earlier—would “tackle the evil of family violence”. But in that press release she did not make any explanation of how that will happen or why these five omissions have occurred. And, unfortunately, we never heard from the Minister of Justice in his introductory speech tonight why these omissions have occurred, nor have we yet heard from another Government speaker on these matters. So although Labour will be supporting this legislation’s referral to a select committee and hopes that it will be able to support the legislation through its other stages, Labour members will be listening carefully as to why these important matters are missing from this bill.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) : Kia ora, Mr Deputy Speaker. When I heard that during all the chaos and carnage of the recent earthquake in Haiti, a bunch of dodgy American missionaries was stealing more than 30 babies and whipping them back to the US, I really wanted to puke. All the talk about them being adopted to escape the devastation was really just a ruse to enable a bunch of crooked Christians to steal kids and brainwash them, and possibly worse. I say big ups to the Haitian Government for putting a stop to that human trafficking.

Of course, the link between them and us is that the Child and Family Protection Bill, which we are considering tonight, will, hopefully, amend our own Adoption Act to bring it into line with the United Nations Convention on the Rights of the Child, because our laws simply do not deal properly with the international movement of adopted children.

The situation in Haiti is a case in point. More than 2,500 children are stolen and illegally removed every single year. It is a brutal reminder of the vulnerability of children being targeted on the back of a natural disaster, with people capitalising on a crisis to separate children permanently from all they know: their families, their culture, and their land. Hopefully, this bill will help us to protect our children from such abuse, to strengthen our compliance with the United Nations convention, to improve court responsiveness to domestic violence, and to enhance the protection of children and families.

This bill also gives me the opportunity to put on record my support for some of the really positive work being done in Te Tai Tokerau through agencies like Amokura and its family violence prevention strategy. It is a community-based initiative to address family violence and promote whānau well-being that has the support of the chief executives of iwi, who have made a long-term commitment to preventing whānau violence: Aupōuri, Te Rarawa, Ngāti Kahu, Whaingaroa, Ngāpuhi, Ngāti Whātua, and Ngāti Wai. It is also an opportunity to remind ourselves of some of the practical things we can all be doing: supporting parents and whānau, establishing our own tikanga about how we care for our mokopuna, and trying to see things through their eyes, keeping their space alcohol and drug-free, and free from the dire consequences of domestic violence.

While we are taking these steps up north, it is also good to see that legislation is being introduced to ensure our children are protected from all forms of violence, including psychological abuse, to bring the Care of Children Act into line with the Domestic Violence Act, to move to a point where lawyers act for children involved in proceedings under the Domestic Violence Act, and to break down the barriers to registering protection orders. Children suffer from the impact of violent and aggressive behaviour, so we need to keep their voices always in our mind, remembering always that even if our mokopuna are too small to put their fears into words, we know the impact of such trauma on their development and their learning and how, unchecked, it can lead to a whole raft of other major problems later in life: teenage violence, suicide attempts, learning and behavioural problems, mental health problems, and drug and alcohol issues. So this bill is timely. It is not perfect, and, hopefully, the select committee will help to flesh out some of the more important issues like court referrals for drug and alcohol and opening up eligibility for domestic violence programmes to ensure that the whole whānau learn from the experience.

The Māori Party is happy to support this bill in the knowledge that we are all part of the village that helps to raise the many wonderful and gifted children and mokopuna that live in this wonderful land that we all call home. Kia ora tātou.

Dr RUSSEL NORMAN (Co-Leader—Green) : The Greens are pleased to speak in support of the Child and Family Protection Bill. We consider that the continuation of protection orders for children until they are 17 years old is a positive development. We are very pleased with the inclusion of psychological abuse in the definition of violence, and that the safety of the child is the key concern for an order of supervised contact. We also agree that it is good to take measures over adoption issues so that New Zealand can ratify the optional protocol: the United Nations Convention on the Rights of the Child. For those reasons, the Greens will be supporting this bill.

SIMON BRIDGES (National—Tauranga) : One of the positive things in my very short time in Parliament has been that although parties in this House are divided on a lot of issues, we have nearly always been able to unite against domestic violence. We now have many laws on the statute book against the scourge of domestic violence. I think the explanatory note refers to New Zealand having a comprehensive set of laws designed to protect children and families from violence and abuse. Nevertheless, as has been ably said by a number of speakers, domestic violence is still a very significant problem in this country.

Minister Power has already referred to the 6,400 children involved in protection orders and applications for protection orders. That number slips off the tongue quite readily, but if we think about it, we are talking, just in the surrounding area where I live, about towns of the size or smaller of Waihī, Paeroa, Katikati, and Kawerau. If we think about those numbers, we realise that literally whole towns’ worth of children have been traumatised and faced with serious emotional stress that children should not have to be faced with, because of domestic violence.

  • Debate interrupted.