23 Mar 2017

New CYF legislation unworkable, says former judge

From Nine To Noon, 9:19 am on 23 March 2017

Proposed changes to Child, Youth and Family legislation are unworkable and the bill enacting them needs to be rewritten, a former Family Court judge says.

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Photo: 123RF

The Children, Young Persons and Their Families (Oranga Tamariki) Bill switches the focus from the current minimum intervention approach to early intervention.

Law Society member and retired Family Court judge John Adams said the goal was a good one but that such a big change required entirely new legislation.

"It's piecemeal to try and tack something onto what has been a very good statute," he said.

"The 1989 Children, Young Persons and Their Families Act is a very well thought-out piece of legislation. To tack something significant onto the end of that, or the middle of it, is like saying 'Look, I've got a Volkswagen car, I now want to have a Holden car, so I'll start altering my Volkswagen to become a Holden'.

"Really you're better to get rid of the old one and get a brand new new one."

He said the issue was around how workable the bill was, and said it was not fit for purpose.

"We applaud what the government is doing in terms of its desire to affect some positive changes but in the eagerness to see something apparently completed, it seems to me that they've devised something that is going to cause a lot of problems.

"I really think they should stick to the ideas and go back to the drawing board and bring something up. OK, maybe it can't possibly be done in this parliamentary term but it would be ... we'd say go for it, but go for it properly."

He said terms used in the bill were more along the lines of those used by social workers and did not have the clarity of those established by law.

"Is a usual caregiver someone who's had the child for a couple of days, for a couple of weeks, or for a year? And does there have to be approval? Could they have been the usual kidnapper? We don't know - and this is the kind of problem that is unnecessarily introduced by the drafting of this legislation."

The term well-being would be introduced in the bill rather than the term 'welfare and best interests', which was already an established term in New Zealand law.

"When you get a group of lawyers or judges together and you say 'there used to be this term and now there's a new term called well-being which is a different term,' they'll all say, 'well, clearly Parliament meant something different - what is that difference?'

"And then you're going to get a whole lot of argument, which we think is probably going to be unnecessary trouble."

He said the use of jargon and vague language would require years of court cases to thrash out their meanings.

The bill would lead to more delays getting results for children instead of speeding things up, he said, and the Law Society was also concerned about how the new legislation would look after Māori.

The current wording felt "white with a sprinkling of Māori terms on top of it," Mr Adams said.

"It's not coherently imagined, it's not coherently expressed. As I read the bill it just feels to me like they've said 'well, we've got this stuff and now we've got to add some extra things for Māori children', and in doing that, it doesn't treat them with the respect that I think we should be regarding the Māori community as part of our New Zealand community.

"And so they need to be in rather than out, and we need to be doing things with rather than to."

The purpose of the bill had been put into about 12 points, something Mr Adams said showed the bill was trying to be something for everybody and was advertising itself.

"It demonstrates that the bill isn't really thought through as a piece of legislation," he said.

"It strikes me in parts as the sort of thing that might have been work-shopped over a weekend, and you got a whole lot of ideas on a whiteboard and you say 'OK, we'll print that as the law'," he said.

"It needs to be chiseled down and refined better than that."

The bill is currently in at the select committee stage with a report due in June.