Hon DAVID BENSON-POPE (Associate Minister of Justice) : I move, That the Care of Children Bill and the Status of Children Amendment Bill be now read a third time. The Guardianship Act is long overdue for overhaul, and this legislation introduces significant improvements to the process for resolving the care arrangements for children, in order to better reflect the diversity of families in New Zealand today. The legislation also improves New Zealand’s compliance with its international obligations, such as the United Nations Convention on the Rights of the Child. The new Acts will have wide-reaching effects in determining disputes in families that are unable to agree to their own arrangements, and in giving guidance to those parents and guardians who are striving to work out what is best for their children.

The process of reform can be slow and time consuming, and there are many people who feel that this reform has been a long time in coming. The reform process began in 2000, when the Government released a discussion document and called for public submissions. More than 350 submissions were received. Academics, the judiciary, and the family law section of the New Zealand Law Society were also invited to comment on policy proposals as they were developed. I would like to thank those individuals and organisations for their most valuable input. The Care of Children Bill also generated nearly 300 submissions and some lively discussion at the Justice and Electoral Committee. I believe the select committee has, as a result, made some very useful improvements to this legislation.

Unfortunately, some of the more lively debate about long-established and well-founded law has at times threatened to overshadow the equally important new initiatives introduced by this legislation. Ultimately though, common sense has prevailed, and Parliament recognised last week that it was inappropriate to use the Care of Children Bill as a vehicle to campaign against abortion generally. I do, however, want to follow up on the issue of the lack of information currently collected about young women who are seeking abortions. This week I have written to the Abortion Supervisory Committee, suggesting that it may consider collecting more statistics concerning the circumstances in which young women under 16 years obtain abortions.

Initiatives in this legislation, which regrettably have not been discussed much in the House but which deserve mention now, include an increased emphasis and additional guidance for determining what is in a particular child’s best interests and welfare, when settling that child’s care arrangements. There is also increased recognition of the role of children in guardianship proceedings, such as the right to appeal Family Court decisions. New terminology signals an emphasis on guardians’ responsibilities and on the sharing of responsibilities between guardians, regardless of who lives with the child. There are further examples of guardians’ responsibilities and roles, including provisions that encourage guardians to try to reach agreement over guardianship matters. More opportunities are provided for family members to have a role in guardianship matters—for example, by attending court hearings. The legislation gives the Family Court additional expert assistance, by enabling judges to request formal reports on a child’s cultural background. It extends the group of adults with legal responsibility for children by enabling parents, subject to some sensible safeguards, to appoint a new partner as a legal guardian for their children. It augments the Family Court’s tools for supporting or enforcing court orders where families are unable to reach agreement or to abide by agreed arrangements. That includes wider scope to refer parties to counselling, and duties to clearly explain parenting orders and the consequences of contravention of them, the power to require a party to enter into a bond as an assurance against further breach of an order, and broader offences for the contravention of court orders.

The legislation also removes unfair discriminatory barriers. For example, it will ensure that more fathers are acknowledged as guardians of their children where currently their marital status excludes them from that. In a similar vein, a man will be faced with fewer barriers when seeking to determine whether he is the father of a child, as he will be able to begin paternity proceedings more freely in the Family Court.

The Government agrees with recent statements by some members that we have to be realistic about what can be achieved by legislation, when dealing with matters as intensely personal as the separation of parents and the care of children. I believe this legislation empowers parents, guardians, and the Family Court to give the children involved the best chance of experiencing positive outcomes. We are confident that other changes in the near future in the Family Court will, in combination with this legislation, also increase the odds of that. The changes are ground-breaking initiatives, with the family mediation pilot that the Government is funding in 2005 being one example of that. This Government makes no apology for ensuring that people are able to make their own choices and for ensuring that whatever the parental circumstances, the rights of children are paramount. For those reasons, I commend these bills to the House.

JUDITH COLLINS (National—Clevedon) : The Care of Children Bill is a shocking, shocking wasted opportunity. This was an opportunity for Parliament to say that children are not fashion accessories or lifestyle choices, that children have to be taken seriously, and that parenting is the most important job bar none in the world, including this country. Yet in this country it is treated like a joke, and it is treated like a joke by that Minister who has just spoken. He is the same Minister who was questioned by a Radio New Zealand interviewer, in relation to a 12-year-old girl having an abortion. The interviewer said to him that surely she was a girl, rather than a woman. That Minister, David Benson-Pope, said: “Well, yes, in some ways. But if she is sexually mature and she’s pregnant, then she’s also a woman. That’s the reality of it.” That was that Minister’s response when asked about a 12-year-old girl who was pregnant and needed to be given help, care, love, and advice. That is what he said. That Minister says that a girl aged 12 who is pregnant—and presumably, a girl aged 11 who is pregnant—is a woman. What about a girl who is raped, is abused, or is living in an abusive relationship at home? What about her? Well, she is a woman, according to the Hon David Benson-Pope.

Let us see what someone else, a known liberal lefty, Tapu Misa, a writer for the New Zealand Herald,said: “As the law stands, my 14-year-old, who finds it difficult to decide what to have for breakfast, could choose to have an abortion without my permission, much less my knowledge. Her right to privacy, even as a frightened, vulnerable 14-year-old, would be respected over my right to know and decide what was best for her. It doesn’t make sense to me that an abortion is the only surgical procedure that she could have without my permission, despite its attendant psychological problems. Or that I would be prosecuted for failing to provide the necessities of life, or not making sure that she attends school, but be deprived of critical information that could affect her mental and physical wellbeing. Even though I continue to be legally responsible for her.”

Let us hear from a 16-year-old, who wrote to me on Friday and stated: “I also only turned 16 a few weeks ago. I actually went through a circumstance a while ago that led me to think seriously about such matters. Being in a panic situation led me to think seriously about abortion. It seemed the easy way out, as opposed to having to tell my parents. I now know that being in a situation like that you can be very vulnerable to act impulsively, and not know the true consequences of the decision made.”

And what about the stepmother who wrote to me about her husband’s youngest daughter, who came to live with them when she was 15? The girl was sent there by her mother, who found the girl was unruly. The mother could not keep charge of her, as she would not do as she was told. That father and stepmother had to deal with a girl who they thought needed some discipline. The stepmother wrote to me that that was probably the last thing she needed. They later found out that the girl had had an abortion and had not told her father or stepmother. What the stepmother said was that the girl needed to be given support, sympathy, and loving care. “If we had known then what we know now, we would have behaved very differently towards our youngest. But the poor thing not only had to contend with the disgust shown by her mother towards her, and being asked to leave home because she would not do as she was told, she then had to come to live with us, when we forced her to knuckle down to her school work, pull her weight at home with chores, and banned excessive use of phones.”—in other words, showed some discipline. She then went on to state: “All of this was she was obviously going through a terribly turbulent emotional period, and needed her friends around her.”

The stepmother went on to tell me that her youngest daughter is now 23, and she has still not approached her father or her stepmother about the situation. She continued by stating that the irony of it all is that she is now openly gay, and, whilst very happy in her life with her partner, has always wanted children, and now there is talk of in vitro fertilisation, adoption, or fostering. The daughter has since told her older sister that she wished she had not rushed into the decision to have a termination, because she had always wanted to have children—and, goodness, I wish she could have had them.

We are dealing with a situation where last week the Minister quoted endlessly from extreme editorials and newspapers, so I would now like to quote from a very reasonable one: from the Sunday Star-Times oflast Sunday. The headline read: “Read our lips: parents want the right to know”. It went on to state that “yet again MPs have revealed themselves to be disturbingly out of step with the public on just how far children’s and young people’s rights should go.” That editorial is right. Seventy percent of the people in this country believe that parents need to be in charge, and that they do need to know about abortions. The issue is not about taking the opportunity to be mean to girls, or to tell them what they should do with their lives. It is actually about being there for them. The Care of Children Bill—this so-misnamed Care of Children Bill—is clearly drafted all the way through by people who do not care about parenting, and who do not view parenting as in fact being the most important job in the world, although it jolly well is. They do not care about it, those very same people.

I come back to the Minister. In this debate I tried very hard to engage the Minister and to suggest that he look at reasonable options, and he would not. How could he, when he views a pregnant 12-year-old as a woman—not as a girl in need of care and protection, love and security, and assurance that she will still be loved, whatever her decision is? No, she is not a girl in need; no, she is a woman! As Tapu Misa said, her 14-year-old cannot even choose what to have for breakfast. Many of us who are parents say to the people on the Labour side of the House, who could not find it in their hearts to care about abused children, that they should just think back to when they were 12 or 14. They should think about the big decisions that they thought they had to make, such as what to wear, what to have for breakfast, and which friends to invite over. Abortion is a huge decision for any young girl to make, yet this Parliament was too gutless to care for children.

Another example of that was that the Government wanted to legalise consensual sex for 12-year-olds—all in the same provision. Why not? According to David Benson-Pope and the Government, 12-year-olds are women. A 12-year-old is a woman who is quite capable of making decisions by herself.

Steve Chadwick: Is this the member who sided against the Parental Leave and Employment Protection Amendment Bill? Do you want them at home, scrubbing floors?

JUDITH COLLINS: Steve Chadwick from Rotorua said the Minister did not say that. Well, here it is. At the end of my speech I will seek leave to table the transcript. Let us see whether the member for Rotorua, or any of her fellow members, will deny leave to table the transcript of what the Minister said. He said: “A 12-year-old pregnant girl is a woman.” He did not say that a 12-year-old pregnant girl is in need of love, care, and protection; he said that she is a woman. What sort of comfort does that give to the child abusers in this country? It is exactly the same sort of comfort they have in not viewing those children as children in need of care and protection. They view them as women. That is the sort of attitude that this Minister and this Government take.

Hon Brian Donnelly: Seventy percent.

JUDITH COLLINS: Seventy percent of the people in this country said that children need their parents at that time. I am sure if the poll had been taken of just parents, that figure would have been 95 percent. Yet Labour, which runs the whole Government on the basis of polls, does not want to look at that poll because it is just too embarrassing.

This legislation is a disappointment. It was an opportunity to take parenting seriously. It was an opportunity to care for our most vulnerable children, and this Parliament has failed to do so, mostly because of that Government and its mates. I seek leave to table a transcript of Radio New Zealand’s Morning Report of Monday, 13 September 2004.

Madam DEPUTY SPEAKER: Leave is sought to table that document. Is there any objection? There is.

MOANA MACKEY (Labour) : I am happy to rise in the House to support this legislation, as a member of the Justice and Electoral Committee who was present for most of the 34 hours of deliberation that we spent on it.

I find it very concerning that members in the House are trying to compare a young woman facing the incredibly traumatic possibility of an abortion—as it is for women of all ages, and particularly for these young girls whom we are talking about—with her choosing what to wear to school that day, or even comparing it with other medical procedures such as tonsillitis. We know that there is not a lot of stigma attached to tonsillitis. Kids are not scared to tell their parents that they have tonsillitis, and will not try to take matters into their own hands. Tonsillitis is probably not a result of sexual abuse. I think it diminishes the debate we had on clause 37 to suggest that abortion is the same as any other procedure.

I am pleased to support this legislation. I think the select committee did an awfully good job in many areas that, because of the focus on clause 37, were not focused on in the Committee stage. I hope other speakers will pick up on, in particular, the changes we made to ensure a presumption of shared responsibility by parents, and to remove the difficulties caused by ex parte orders under the Domestic Violence Act by providing time frames under which they have to be resolved. I think this legislation is extremely good and that it improve our guardianship laws greatly, and I commend it to the House.

DAIL JONES (NZ First) : On behalf of New Zealand First I say we oppose this legislation, which has failed to consider the major issue affecting the Family Court, and that is the way in which domestic violence orders, coupled with interim custody orders, result in, usually, the father of a child not seeing the child for a considerable length of time. Often, if he does get the opportunity of seeing that child, it is in a situation of supervised access, in the company of some of the heaviest people in this country—and I mean “heavy” in all its shapes and forms. It is not good that the child has to go to such a centre and see those types of people.

The Government trumpeted far and wide that this legislation was going to solve all the problems of the Family Court. Clearly, that has proved to be wrong. It does not. Even the Associate Minister of Justice today confessed that there needs to be more legislation to try to overcome the problems of the Family Court. One wonders why we have wasted our time on this legislation, when today Mr Benson-Pope said that more legislation is needed and more work needs to be done on the Family Court. This legislation has probably cost the country somewhere around $15 million, when one takes in to account the time of members and all the studies that have taken place to give effect to it.

I was reminded today by the Hon Brian Donnelly that after, I believe, a member’s bill with regard to shared parenting came into the House in about the year 2000, New Zealand First took the matter up with the appropriate Minister. He promised that, as a result of that bill and New Zealand First’s suggestions, there would be further legislation, and this legislation is the result, but it is not the legislation we would have hoped for at the time.

When the Associate Minister introduced this legislation he made comments that the welfare of the child would now be paramount, and would have to be the first and paramount consideration—as if that was never before the case. Of course, he has been learning on the job, but that has been in the law since probably 1926. He also trumpeted the fact that for the first time, in his understanding, for the purposes of the welfare of a child, and regardless of a child’s age, there would be no presumption that the placing of a child in the custody of a particular person will, because of the sex of that person, best serve the welfare of that child. He thought that was new, but it came in during 1980, during the 9-year period when I was in the House. So this Minister has absolutely no idea what he is doing. I do not blame him. He has no experience in the area of the Family Court. He is not even a lawyer. There are a number of lawyers in the Labour Party caucus, but none of them has much court experience, so would not know much about the Family Court. As far as this Minister is concerned, he has shown that he is hopelessly at sea in this area.

The Labour member who spoke before me somehow made a comparison between a child with tonsillitis telling her parent about it, and a girl, having got herself pregnant, telling her parent about it.

Jill Pettis: We do not get ourselves pregnant.

DAIL JONES: Actually, that does happen today. Women do make themselves pregnant using artificial means.

Hon Annette King: They have to have approval to do that.

DAIL JONES: No, they do not. Two women who were living with a male person appeared before the select committee, and I incidentally mentioned that I thought that might be polygamous as far as the male person was concerned, but, no, that is not polygamous today—although the Labour member has got upset about it. Those two women used a non-sexual means to get themselves pregnant, and they did it themselves. So I do not think the Minister of Health is fully understanding of what happens in our communities today. It is a very depressed, depraved community that is out there today.

If a girl has tonsillitis, which is a minor thing, she can tell her mother about it, but the Labour member Moana Mackey says that if she is pregnant and is thinking of an abortion, that is not so important, and therefore she does not have to tell her mother. She has got it all twisted, and that is the problem with the Labour Party members. A group of members of that party are deeply involved in social engineering, and their whole policy around this legislation is based on what we call gender bending. Those members support the mother being the father of a child, and the father being the mother of a child. Although the Opposition got rid of clause 17(2) in this respect—we managed to get it taken out—the Labour Party members refused to amend section 14(2), in clause 167, which makes it clear that the mother could be the father of the child. I moved an amendment to delete the reference to the mother being the father of the child, and to make it clear that the mother could only be the mother of the child, but the Labour Party members voted against that.

Labour wants women to be males. It wants mothers to be fathers. It wants fathers to be mothers. That is what we referred to. That is a fact. Labour was very embarrassed about it in the first instance, and forgot about that particular provision, until I brought it to the attention of members. I did so, not because of my very conservative—one might say—viewpoint. The amendment had been suggested by the Auckland District Law Society subcommittee, which said that the provision in the legislation was insensitive. That was a very nice way for lawyers to say that it was a form of gender bending—something that most normal people would not accept, but something that the Labour Government wants to have. It would not accept the suggestion of the Auckland District Law Society subcommittee, put forward by me, that those words should be removed from the legislation. That is the way in which Labour works today. It has no regard for normal family relationships.

During the Committee stage the Labour member Moana Mackey asked me what normal was. She did not know what normal was. She had to ask me what normal was. As far as New Zealand First, and all normal people, are concerned, normal is a man and a woman, and man means man and woman means woman, and they are that. Normal means a normal male-female family life. There can be occasions where that is not the case, and some excellent people came before the select committee, such as a lesbian family who were bringing up a child, and I am sure they do a very good job. And I am sure there are situations where what I would refer to as a normal way of life is totally unsatisfactory for the child—I do not deny that. But a normal way of life is meant to be a man and a woman and their children, but Moana Mackey obviously does not understand that. I am not surprised, her being a member of the Labour Party.

During the Committee stage amendments were put to clause 37, and they have been touched on by me already. As it happens, in 1977 I voted against the equivalent of clause 37. Three of us voted to have that provision removed that day. I am pleased to say that since that time there has been a vast improvement in the attitude of members of the House, because 22 voted against it the other night. I suppose, if I came back often enough, and live long enough, clause 37 might one day be repealed. From my point of view, that is an interesting statistic that shows that Parliament has a slightly more conservative tinge to it than was the case way back in 1977. We think of previous Parliaments as being more conservative, but I am very confident that this Parliament is what one would call in normal parlance a more conservative Parliament than was the case on that occasion.

This legislation could have been a lot better. It could only have been a lot better. It has failed to take into account the largest problem before the Family Court. I tried to make some amendments from time to time, and I am pleased that the Government did take note of one or two of my suggestions. At the same time, I tried to make sure that amendments were made to the legislation that would help to make it better—based on all the knowledge that the members of the committee had. It is regrettable that we have spent all this time and money on Family Court legislation that, when it goes back to the Family Court, will probably cause confusion. I refer to areas such as what is really meant by a parenting order, what really is a day-to-day order, and how does one work out some sort of interim arrangement for those situations, as well. This is unfortunate legislation, it is poor legislation, and New Zealand First opposes it.

METIRIA TUREI (Green) : The Greens are pleased to support the third readings of this legislation. The purpose of the legislation was to review and update the Guardianship Act, and that review was certainly needed. In our view the changes in the bills are not highly radical, but rather, refine and clarify the purpose of such legislation. The Greens supported this legislation with clause 37 still in it. We consider that the current law is working well and does not need to be changed. We are concerned that that clause is only one of a number of issues in legislation that has other issues that are at least as important, but have been largely ignored by other politicians.

The Greens are strong supporters of the view that all children deserve equal recognition and protection of the law, regardless of the gender status of their parents. For example, even where a partner is active in the decision to have a child, his or her status under current law is undermined, and the child does not have parents with equal recognised legal status. One example is that under this legislation the father of a child is an automatic guardian where he has lived with the mother at any time from the conception of the child to the child’s birth. That extends the current time frame within which fathers can obtain automatic joint guardianship, and it will provide much greater certainty of parental responsibility where the parents’ relationship is fleeting, but none the less the father wants to have legal recognition of his responsibilities to his child.

Another example of the new provisions relates to assisted human reproduction to ensure that the child’s parents, those who have accepted and sought responsibility for that child, have the consequent legal recognition. The existing provisions in family law do not recognise the parental status of the same-sex partner, even if that partner is in a long-term relationship with the mother before, during, and after the child is born. For so many New Zealand children, especially those who came to the select committee, those new provisions will provide enormous benefit for them.

We are especially pleased to see that the legislation provides a process for the recognition of agreements between parents about contact with, and upbringing of, children conceived using assisted human reproduction. It is critical that those agreements can be enforced so that those who have actively chosen to become parents, who have made a lifetime commitment to a child, are assured of legal protection. This is especially so where the parents are in same-sex relationships, which already suffer from serious discrimination.

So many children are born without thought or preplanning as to their care. So where that planning and commitment is made, surely it is in the best interests of the child, the family, and the community to have those agreements enforced.

In our view the Family Court process has changed significantly as well; we are pleased that the court is now more open, but there is still a presumption that the court process is not available to the whole of the public for general consumption and entertainment. For example, family members or support persons—such as Rape Crisis volunteers—who attend any pre-court mediations or counselling can also attend the court hearings. This is especially important where the person or persons are actively involved in the child’s life and have a stake in the decisions made by the court, or in circumstances where one of the parties is in need of support. The court retains the power to exclude people, so there is still good protection in place where, for example, there may be intimidation. We also accept that the provisions allow accredited media to attend, and are tempered by the controls on the reporting of cases so as to protect the identity of the parties.

One major advantage in this legislation is the time limits now imposed on ex parte orders. Those are orders made on application by one party, without notification to the other. Often ex parte orders are critical for the welfare and safety of the child or for some other person. Ex parte orders must be retained as a tool for the court. But the legislation now imposes a time limit on those orders. Firstly, the order will expire 1 year after it is made. Secondly, the court must assign, within 3 months, a hearing date to consider whether a final order should be substituted for the ex parte order. Thirdly, the non-notified parent can request a hearing for a final order, and that hearing must occur within 42 days of that person’s giving notice to the court. The tightening-up of the ex parte order process is a significant step for all those who need to access the courts for emergencies and for those sorts of issues, but it is still important that an ex parte order does not persist beyond the specific circumstances that led to it, and that the range of issues raised in respect of an ex parte order can be properly explored by all the affected parties.

We are pleased to see that the appointment of step-parents as guardians has some safeguards. The first is that both biological parents make any additional appointments. This makes sure that the parents are fully aware of who may be acquiring parental responsibilities for their child. The step-parent is not eligible as a guardian if he or she has been convicted of any offence involving harm to a child—including violence, ill-treatment, or deprivation—or any offence involving child pornography. The step-parent must also declare his or her criminal history, as part of the guardianship application. The clean-slate legislation does not apply to these applications. This is very important because, along with the disqualifying criminal offences, parents must know as much as possible about the person who will take on those responsibilities—critical as they are—for their children.

The Greens supported CCS’s concerns about the non-medical sterilisation of young disabled girls. Many such sterilisations occur when the young girl is very young, and in our view this constitutes an abrogation of her fundamental human right to control and manage her own reproduction. This legislation does not clarify the situation for the non-medical sterilisation of young girls, but that matter was canvassed in the Justice and Electoral Committee and in the Committee stage, and we look forward to continuing to work with the Government on this issue.

Finally, no system of law can fix all the problems that arise within families. It is always a hard and horrible process, trying to resolve such personal and emotional issues within a strict legal framework. This legislation puts children at the centre of that process, and in that sense at least, provides a very good model for how legislation should be considered by this House in the future. The Greens commend this legislation to the House.

Dr MURIEL NEWMAN (Deputy Leader—ACT) :I rise on behalf of the ACT party to oppose the legislation. This is another law progressing Labour’s anti-family, politically correct, social engineering agenda. It is a sad day for New Zealand because this legislation has been long-awaited, but the bills lying on the Table do not make the changes that are needed to improve family law in this country. The reality is that family law in New Zealand is not working as it should. At the moment far too many of our families are totally distraught. They have been split apart. They have been denied contact with children. Children can no longer see mum or dad, can no longer see grandparents. It is an absolute disaster. The Government by means of this legislation had the opportunity to sort out some of those problems, particularly in respect of our access and custody laws.

All members of Parliament will have come into contact with this issue, when we meet grandparents or family members who tell us heartbreaking stories because of custody and access laws, whereby they are no longer able to send Christmas presents or birthday cards, or even telephone children who should normally have contact with those people. In this legislation the Government could have sorted out many of those problems, but it failed to do so

The law fails to protect the rights of mothers and fathers to see their children after a family has broken down, and I say that it is interesting the hypocrisy, if one likes, of a Government that has advocated that the United Nations conventions should be upheld by New Zealand, yet one of the stipulations in the United Nations Convention on the Rights of the Child is the right of every child to have a mother and a father. We go to extraordinary lengths over these provisions on human reproductive technology to make sure that those children will be able to have contact with whoever is their father, yet under this legislation, where we could have put in place provisions to make sure a child whose parents have separated can have contact with that other parent, the Government has failed to do it. So I believe this is a sad day for New Zealand because this time we could have been putting the law right.

The reality is that in New Zealand today a child whose family has separated is the victim often of losing contact with the non-custodial parent. In fact, today more New Zealand children lose a father because of our family laws in a 6-week period than lost a father during the entire course of the Second World War. I say this Government could have fixed it, but failed to do so.

In particular there were two changes to family law that needed to occur. One change is to open up the Family Court properly. Some provisions have been put in this legislation. I guess that time will tell; we have to give the system the benefit of the doubt, but when we have provisions in there that include censorship of material that the media are going to report on, when we also have a system whereby anybody can object to the media being in the court, or any other person being in the court, then one cannot say that we actually have an open court.

So I believe that the open court provisions in this legislation will fail. They will fail to bring into the open the matters that have needed the scrutiny of the public for many, many years. They will still remain secret. So the bad things happening in family law will be maintained, because the Government has failed to open it up to the scrutiny of the public.

The second issue is shared parenting. This legislation was instigated because of the Government’s response to a member’s bill to introduce shared parenting back in 2000-01. The Government said no to that. The bill said that when families break apart, both parents should remain connected with their children in the way that they are when they are an intact family. Just as a mum and a dad in an intact family have total and equal responsibilities for the care of their children, so too after a relationship breaks down they should still remain equal in their responsibility to their children. It should be up to the parents to decide what sort of living arrangements would best suit their children, depending on their age, where their schools are located, and a whole lot of matters. That is called shared parenting.

I introduced an amendment to introduce shared parenting into the Care of Children Bill, and I have to say that it is with great sadness that I found that only the National Party supported it. When push comes to shove I realise now that the only other party in Parliament that genuinely wants to change family law in the way that we have debated over the years is actually the National Party. Those families out there who are concerned about this issue will have to realise that the only way they are going to get change in New Zealand is if they have a National-ACT Government. Those people out there will need to know whom to vote for at the next election, and just for the record, it should be the party vote to ACT.

Today is a very sad day for fathers in New Zealand. Since the time Labour came into power the fathers’ groups around the country have become more organised. They have realised that they should take a lead from what women did way back in history, where the feminist movement created greater law changes that would benefit women. But I have to say, as a woman standing here today, that the pendulum has swung too far away from the rights of males in this society, of dads in particular. For the last 5 years or so, many fathers have gone around, talking to individual members of Parliament, trying to explain to them how the law needs to change to make it fairer—not only fairer on them but on their children as well. And they have been encouraged. Individual members of Parliament have said: “Yes, we agree we need to change the law. We need to make it fairer.”, but again, the proof is today. Today we will find that there is no desire on behalf of the Labour Party, and on behalf of the Green Party in particular, to do anything to make it a fairer society for those fathers.

In particular, I guess it is the ones who are marginalised, who are not able to see their children on a regular basis, who have to pay large amounts of child support, and in return they might get to see their child once every 2 weeks, for an hour or so, in a Barnardos home or some other facility. It is a very, very unsatisfactory way of trying to maintain a relationship with one’s child, so all too often we see those relationships quietly drifting away, quietly dying, and the child no longer has a dad whom he or she knows and is alongside.

It is a stark reality that in this legislation same-sex couples have been accommodated far more than fathers. The rights of dads have largely been ignored. Not only has shared parenting not been a part of this law change, but it is the same with paternity rights, which they have asked for. Those rights were simply to allow a father to have a DNA test, through a mouth swab, to see whether he indeed was the father or whether the child was his child. That has been denied.

The legislation increases the number of people who can be counted as guardians. At one time the dad, the biological father, used to be one of two guardians in the child’s life. Now there can be many, many guardians, and that dilutes the father’s rights as a biological parent. Everyone thought the open court would be one of the provisions in this legislation and would allow the public to see what was going on in the fraught area of family law; we believe they are Clayton’s provisions and will not do what they wanted. It is with great sadness that I say the ACT party will be voting against this legislation.

JUDY TURNER (United Future) : When I first heard about the Government’s intention to revamp the guardianship law I was impressed. I realised it would require courage, and that this would be a controversial issue. Throughout the entire process I do not think I have ever doubted the sincerity of those taking responsibility for the design of the legislation. However, today as I rise on behalf of United Future to speak to the third readings, and although I still remain convinced of their sincerity, I have to say that, in respect of many of the key provisions in this legislation, those responsible are quite wrong.

When the Care of Children Bill passed its first reading, it did not contain any boundaries around the amount of time someone had to be actively involved in a child’s life before that person could be appointed as an additional guardian. As the Hon Nick Smith pointed out during the Committee stage, the Property (Relationships) Act requires a greater longevity of association before property can be divided than the 1-year requirement—now added to this legislation—before an individual can be appointed as an additional guardian of a child. What this actually means is that a couple have to be together longer to get their hands on half the whiteware. They have to be together longer to get half the pots and pans, than they have to be together before one can be appointed as the additional guardian of a child.

While nobody wants to prevent the possibility, in an emergency, of appointing an additional guardian, where time may not be available to establish longevity—nobody minds the exception—surely the law should reflect best practice. And best practice would surely be that a long-term stable relationship has been first established between the child and the new guardian, before guardianship is conferred on the other person. I do not believe, and United Future does not believe, that 1 year is long enough.

Traditionally, social parenting arrangements have kicked in only when biological parenting arrangements have fallen over, and of course adoption and kinship caregivers accounted for most of those arrangements. But today, children are raised in a whole raft of social parenting scenarios, and if history is to teach us anything it is that, in part, children develop a healthy identity by having clearly traceable links to both of their biological parents and the extended family, and an established and nurturing relationship with both parents. Regardless of however many households a child’s family is spread over and the reasons for these diverse arrangements, the basic needs of a child do not change. The move towards open adoption, in the long-term best interests of children, is a good example of the recognition given to the importance of the natural family, regardless of the circumstances in which the child is raised.

The legislation improves much of the language associated with the decisions of the Family Court—a language associated with the care arrangements for children. However, despite a change in language, there is very little to suggest that the outcomes of the Family Court will improve in any measurable way. Parenting orders replace the terms “custody order” and “access order”, but the truth is that all the other provisions that dovetail into family law to make it work—for instance, the benefits system—are unable to facilitate the more equitable parenting arrangements that those proposing this legislation claim will happen. We also lack an adequately resourced courts system, able to process parental conflict in a timely manner.

We have to keep in mind that those families requiring the service of the Family Court to settle issues surrounding the care of their children are families at war. Most separating and divorcing couples manage to put aside their personal differences, to agree to care arrangements that will reflect their ongoing commitment to their children. But in a small number of cases, the conflict is of a kind that either one parent does not trust his or her ex-partner to safely or adequately care for the children, or the children are just mere pawns in a very destructive tug of war.

I question how vexatious accusations will be dealt with under this legislation. All of us will have received numerous letters from individuals and from men’s support groups up and down the nation, claiming vexatious claim after vexatious claim that they have suffered under, with no immediate or satisfactory recourse. I heard of a case yet again, just this week, that happened probably 20 years ago. A father was blocked from having regular access to his child because after the first visit it was determined that as a result of having a weekend with dad, the child had contracted worms. My understanding as a parent is that children who enjoy a good run-around outside and a play in the mud contract worms. It is a sign of a good weekend with dad, not a bad weekend with dad. However, the lengthy battle required was outside the financial reach of this gentleman and he lost regular contact with his child. He still sent money and presents to his child, but the child does not remember ever having received presents in the name of his father. Cases such as this do not give me any reassurance about the provision of this revamped legislation.

Clause 37 was vigorously debated in the Committee stage. In that regard I reiterate one point—that is, if best practice is reflected in the ability of parents to be able to support their child through a crisis of such magnitude, then any law that undermines best practice is absolutely outrageous. I add one further point in regard to best practice. Because of the way this happens, best practice would normally require that a child in this situation would be seen by her family general practitioner. But the adults who step into the breach for parents in this matter are under no obligation, should the child require this, to use the child’s own general practitioner. So a second area of best practice is able to be overridden by clause 37, and the parents and the safest medical practitioner who should be making this decision and understanding the complicated effects of a termination on the child’s health, are kept out of the process.

Studies in the United States and the United Kingdom show that teenage girls undergoing an abortion are more likely to suffer acute pain, requiring painkillers; suffer cervical lacerations; suffer post-abortion infections; and become pregnant again within 2 years. About 29 percent become pregnant again within 2 years, and 48 percent have second abortions. These studies show very, very clearly that an adult who has the ongoing care of a child must be included in the decision, unless there are exceptional circumstances during what constitutes an immense crisis in that child’s life.

United Future is disappointed, because initially this legislation reflected an amazing opportunity to address some of the real concerns that exist in the Family Court. We feel that the Government has dropped the ball badly on this, and before too long we will have to look yet again at the ongoing unsatisfactory outcomes of the Family Court. We will have to look at this legislation yet again, wondering why so much opportunity was wasted at a time when so much could have been done. In other jurisdictions such as Australia some wonderfully innovative things are happening in the Family Court, on this very matter. It is such a huge shame we have failed to look at those options, and have settled for something that is very second rate and very second best.

DAVID PARKER (Labour—Otago) : During the various stages of this debate, we have seen an attack by the National Party Opposition on rights that have been enjoyed by women in New Zealand for two decades. We have seen National’s attempts to amend clause 37 to interfere with the confidential relationship between doctors and young women, and we have seen the start of that party’s agenda on women’s issues. It is no wonder that the National Party has so little support amongst women, because women know that the election of a National Government would put at threat the women’s rights that they have fought for over the years.

This legislation focuses on the rights and interests of children. Clause 3 of the Care of Children Bill states that the purpose of the legislation is to promote children’s welfare and best interests. The paramountcy of the interests of children is emphasised in clause 4, which states that the welfare and best interests of the child must be the first and paramount consideration under the Act. Everything hangs off that paramountcy of the interests of the child, as it ought. I recommend this legislation to the House.

Dr PAUL HUTCHISON (National—Port Waikato) : This legislation is, undoubtedly, a lost opportunity for the children of New Zealand and a lost opportunity by the Labour Government in terms of the care of children. Muriel Newman put it very well when she talked about the context of New Zealand’s custody and access laws and the heartbreaking stories, whereby children miss out on access to their mothers and fathers on a daily basis. In fact, one of the horrific statistics was that, on a daily basis, more children are losing access to their fathers through separation or divorce than through what occurred in the entire Second World War. That is a horrific thought. That is the size of the sort of issue one would have hoped this legislation might address but sadly does not.

To make it even more poignant in terms of context, it is important to point out the extraordinary crisis, in many respects, that New Zealand has gone through over the last 15 to 20 years, and is still going through in respect of its failure to care for children. The figures for homicide are such that between 1989 and 2000, 111 children and young people aged between 0 and 14 died as a result of homicide, and 1,743 were admitted to hospital as a result of non-accidental injury inflicted by others. It has been shown that these tragic events occurred most commonly within families, with fathers, mothers, de facto partners, and other relatives, caregivers, and acquaintances accounting for all but 11 percent of the deaths.

When one reads the paramount principle in the legislation, which states that the child’s welfare and best interests are to be the first and paramount consideration, and then the Government’s commentary on the Care of Children Bill where, in respect of new clause 4A, it recommends that the child’s parents and guardians should have the primary responsibility, one becomes greatly concerned about the undermining of parental responsibility that appears to have gone on in the many sectors of our society that are governed by Government, particularly in the education services over the last 4 to 5 years under the Labour Government.

I think particularly of a case that occurred earlier this year where a disabled girl was apparently raped and where the parents were not informed of the situation. The school counsellors and the school took over her care, which included giving her medication for an infectious disease—medication that she did not even know how to take. It was 3 months later that the parents found out about it, due to the extraordinary aberrant behaviour of this young woman. They could not understand what was going on. Yet the ethos in this country, under the Labour Government, is: “Look, it’s OK that parents’ responsibility be taken away. We, the State, will look after her.” It is in that context that we see my colleague Judith Collins pointing out how the erosion of parents’ rights has subtly occurred and been reinforced under this Labour Government.

I myself have heard time and time again in Port Waikato from mothers who have come to me distressed that their daughters have, through the school and its counsellors, been given the pill without the parents’ knowledge. That is an ethos that we must reverse in New Zealand. As the commentary points out, the child’s parents and guardians should have the primary responsibility and should be encouraged to agree to their own arrangements, etc. Clause 4A states further 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 entitled to have contact with, the child. That is not happening to a certain extent in many of our schools around the country, and I think that that is a huge undermining erosion of this very important principle of parental responsibility.

Although I personally did not agree with one of the amendments that Judith Collins put forward to Parliament, I absolutely agree with the sentiment she expressed—that it is hugely important for us in New Zealand to do everything possible to make sure that the framework for reinforcing parents’ involvement with their children is as strong as possible. I hope, indeed, that the Labour Government will take note of Judith Collins’ second amendment, where the recommendation was that the Abortion Supervisory Committee gathers statistics and does research on the question of young women under the age of 16 having abortions without their parents’ knowledge.

It is hugely important that we make sure in New Zealand that where there is abuse in the home or incest, it be stopped through the force of the law, and that there are no impediments to making sure that happens. I think that the debate we have had should focus us, and that we should not let it go, because it is terribly important. Although the law suggested may not have been ideal, the responsibility of Parliament now is to make sure, on the one hand, that we have the ethos whereby parents are deeply involved if at all possible with their children and, on the other hand, where the home has abuse or violence, that the force of the law is brought down on it.

There is another area National supported to a certain extent, which is the openness of care of children’s proceedings. It seems as though it is very hard to drag the Labour Party into a culture of openness. Although we welcome the fact that the children’s court is being opened to a certain extent, we are certainly very concerned that it is only to a certain extent. I think it was US Justice Brandeis who said that sunlight is the best disinfectant, and I thought that that was a very, very refreshing term.

Undoubtedly, judges in the Family Court are fallible. Sometimes they are ordinary people—very ordinary people—and it is a worry when the Family Court can tell editors whether they may write something in particular. There is no doubt that as a basis, open reporting and accountability are vital fundamentals of democracy, and it is of huge concern that we hear this politically correct Labour Government talking about accredited media. What does it mean? The Government has not even bothered to define it.

There are huge issues for New Zealand associated with this legislation about the care of children but, sadly, the Labour Government has failed to take the opportunity to explain them. It is with deep regret the National Party is not able to support this legislation, because of the Labour Government’s failure to take a practical, sensible, and common-sense approach to this hugely important question.

JILL PETTIS (Labour—Whanganui) : This is important legislation, which, sadly, has had a lot of misinformed controversy surrounding it. However, this legislation will ensure that the processes for resolving guardianship issues are inclusive and, very importantly, focused on the welfare and best interests of children. No Government, regardless of its political persuasion, can control what parents do when they use their children as vehicles of power as relationships break down. I think that all members of Parliament, regardless of what party they belong to, are appalled when parents use their children during personality battles. That is entirely inappropriate for the long-term care and protection of our most important asset—our children.

This legislation will help children and families. The best thing we can do is to get the bills passed so that their aims and intent can be put into practice.

Hon BILL ENGLISH (National—Clutha-Southland) : This is one of those pieces of legislation that contain some useful steps forward, but the principles behind it are so misjudged that it is too difficult for the National Party to support. Any MP who has dealt with the regular run of child custody battles knows it is dangerous ground for outsiders to tread on. For the reasons other speakers have raised, children often become the pawns of competing parents, and the feelings involved are almost always intense. Of course, we never get to see the families whose issues are resolved; we get to see the families whose issues remain unresolved, often for years and at huge financial and emotional cost. Some of the procedural changes in this legislation will help to reduce those costs, but I do not think they will reduce the feelings. The nature of the parental relationship is such that in a significant proportion of cases when that relationship is disrupted, there will be trouble.

I want to reflect on one or two aspects of the legislation that were debated by Parliament at some length. The first is clause 35 of the Care of Children Bill. My colleague Judith Collins put forward a Supplementary Order Paper on that clause, proposing an amendment to change the current law. I know for a fact that the debate on the clause was conducted largely in ignorance of the law by the MPs who were voting on it. The debate demonstrated that many MPs thought the current law prevented a medical or other health professional from advising parents when a girl under the age of 16 had an abortion. Of course, the current law does not do that. Clause 35 states that there is an exception to the general rule that a child under 16 cannot consent to a medical procedure, and that a parent must give consent. The exception is when a girl is having an abortion. That is the one exception to the rule, as outlined in clause 35. The clause does not proscribe notification, at all, but professional ethical codes and practice over the years have evolved to the extent that doctors and nurses feel they cannot notify parents, because they feel that would breach their professional code of confidentiality. In that respect, Parliament had an opportunity to assist parents and, in my view, many health professionals—judging from those who contacted me—by writing the law to make it clear that despite the professional ethical code of confidentiality, parents should be notified when a girl under 16 is having an abortion.

The general law is weighted in favour of parents being involved. For instance, if a girl has an abortion and a complication arises so that she needs further surgical procedures, then those procedures can be done only with the consent of the parents. Parliament missed an opportunity, but the fact that it did so is not an accident. What lay behind the majority vote against changing the law in favour of notifying parents is the same kind of view that lies behind much of this legislation—that is, the idea that parenthood is some kind of social construction and that somehow the genetic relationship between a parent and a child is less important than the construct the wider community wants to put on parenthood.

This legislation and previous legislation, particularly that relating to marriage and to property when relationships break up, all head in one direction—a direction whereby the Government says it is completely neutral about the nature of these relationships and about marriage and family. One need only look at the definition of “family” in the Families Commission legislation to see that it means almost nothing. This particular Government has decided it wants to be completely neutral. In fact, I would go further; I would say that that stream of legislation demonstrates hostility to traditional, successful arrangements that have worked in our community for a long, long time and that will, I believe, despite the Government’s assault on them, continue to work for a long, long time.

The overwhelming evidence is that children raised by their biological parents in a stable parental relationship—even two or three in a row, as can be the case these days—do much better, on average, than children raised in other circumstances. If the Government was genuinely committed to the kinds of principles it occasionally espouses under political pressure—like being family friendly and wanting to involve parents and take them seriously—then it would not have written this legislation the way it has, and it would not be trying to pass these bills, which are yet another part of a continuous stream of legislation that, under the pretence of neutrality, undermines a set of institutions that has worked extremely well.

I want to give one little example here: the trouble the Government got into over defining what a father is, which is not something the Government would necessarily have a lot of expertise in. In the initial drafts of the legislation the Government decided to define the lesbian partner of a mother as a father, and it seemed to think that we should all just agree with that—that somehow we were all such rational and reasonable people, totally familiar with human rights legislation, that we would all think it fine for Parliament to vote through legislation defining the person in that situation as a father. Common sense prevailed, at least in the wording of the legislation. It has not made any legal difference, but the Government realised how far out of touch it is with the way normal people go about their daily lives. I think the Government has persuaded itself that people who criticise this kind of legislation are backward, reactionary, and conservative, and that most people know how the real world is. Well, in the real world most children are brought up in situations with a biological parent. Most children are brought up in households with two parents—that they are always the biological parents is less and less the case, but most of them are—because that is what tends to work. That is what people generally seek as an ideal, even if they do not always realise it.

I just wish that this legislation reinforced that social reality more. I do not like the idea that I have been reduced to being the person who provides day-to-day care. I am not a childcare worker; I am a parent, as are many thousands of others, and that is different. I think the terminology is inappropriate. It is worse than inappropriate; it is just wrong. It is wrong to define in law the relationship of a parent as that of a guardian who conducts the day-to-day care of a child. As we have found, it is pretty easy for people like de facto partners to become guardians and therefore responsible for day-to-day care. I must say that casual de facto partners who might just make the threshold of 1 year have a lot less commitment to the children in the household than those of us who have changed nappies for years and years and looked after children with the mixture of delight and suffering that that sometimes entails.

That is why we cannot support this legislation in the end—because it is trying to pretend that children live their lives in a kind of human rights textbook. They do not. Children have not read those textbooks; in fact, most parents have not, either. If the legislation had reflected not just procedural improvements but also more sound common sense about how the world actually works, then we would have been able to support it. But that is not the case.

LIANNE DALZIEL (Labour—Christchurch East) : I agree with the member’s final comment that children do not live their lives in textbooks. They do not live their lives in fairy tales either. I wish it were always true when mum and dad marry and say they are going to live happily ever after for evermore. This legislation really only takes effect when the fairy tale does not come true. I want to place on the record the gratitude this House owes to both the previous and the current Principal Family Court Judge. Both of them sought to assist the Justice and Electoral Committee in a free and frank manner. As a result, we will have a much more accessible and open process in the Family Court and the enforceability of the court’s orders will be greatly improved.

I want the House to remember that only around 5 percent of all relationship breakdowns involving children and their ongoing care end up before the court for a decision. Many members have focused on the issue of shared parenting. I want to place on the record my very strong view that the phrase “shared parenting order” is an oxymoron. The idea is really that shared parenting can only occur by agreement. What children need most are parents who, whether or not they are together, cooperate with each other about the ongoing care of their children. We need parents to set aside their personal feelings for the sake of the children.

This legislation is for the sake of the children and, despite some of the speeches made in the House today, is a vast improvement on the law it replaces.