Under the Care of Children Act 2004 ("COCA") a child’s welfare and best interests are paramount when making decisions about him or her in the context of Family Court proceedings. Matters coming before the Family Court involve, amongst other things, parenting and guardianship disputes and, on some occasions, incidents of domestic violence.
The Family Court will often appoint lawyer for child to take their young client’s instructions and to ascertain whether their welfare and best interests are being met by the current/proposed arrangement. COCA also requires a child who is the subject of Court proceedings to be given a reasonable opportunity to express his or her views and for these views to be taken into account in the Court’s final decision. Older children are given the opportunity to speak to the Judge.
While COCA generally works well for children "within" the system there are, as we know all too well, many children "outside" of it whose names come to our attention only once it is too late to help them. Two Bills, currently being passed into law, aim to provide greater protection for children at risk of family violence.
The Crimes Amendment Bill No.2 - Protection of Children was introduced to Parliament by the Minister for Justice in April this year. Amongst other issues contained in the Bill one of the major areas of proposed change relates to the protection of children. It imposes greater responsibility on adults who are in contact with children and imposes a legal duty on those who live with a child, and those who know or ought to know that the child is at risk of death, grievous bodily harm, or sexual assault, to take reasonable steps to protect the child from that risk. This new duty carries with it a greater penalty, namely up to 10 years imprisonment. Specifically, a parent (of whatever age) or person over the age of18 may be found liable if he or she is:
- a member of the same household as the victim; a person who does not live in the same household but is so closely connected with it but they are regarded as a member of it;
- a staff member of a hospital, institution or residence where the victim lives.
The Child and Family Protection Bill was unanimously passed into law in August this year and focuses on keeping children safe where there have been instances of family violence in the home. It also improves the responsiveness of the Family Court to these victims. Amongst other things the Child and Family Protection Bill makes it clear that protecting children from all forms of violence also includes protection from psychological abuse and direct and indirect abuse. It also makes it easier to obtain protection for child at risk of unlawful removal from New Zealand.
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