Dialogue: Children's issues being swept under the carpet

The protection of at-risk children has been hampered by the suppression of all information relating to their plight by the Family Court, which operates in secret, says MURIEL NEWMAN*.


The editorial in the Herald last week arguing for open justice in New Zealand is right on the button. Open justice is fundamental to a democracy. Yet we are dogged in this country by secrecy in our courts, whether through legislation that closes courts to public and media scrutiny, as in the case of the Family Court, or through the overuse of name suppression to protect the identities of individuals who have broken the law.


There is no issue more in need of a public mandate for change than that of protecting at-risk children. We lead the world in infant mortality, in child abuse, in teenage pregnancy and youth suicide.


Our young people are, in increasing numbers, becoming victims of systemic social exclusion, finding themselves at younger and younger ages hooked on drugs and alcohol and entrenched in the criminal justice system.


Yet rather than addressing what is causing these distressing problems, politicians and public servants are content to look the other way and to focus on the consequences.


As a result, more child abuse teams are needed, more truancy officers are hired, more youth justice facilities are built, more social workers and police are placed in schools, and the causes of the problems remain ignored, in the too-hard basket, damaging children as each day goes by.


While the causes are complex, the problem has been exacerbated by the dearth of local, independent social policy research as well as by the suppression of all information relating to at-risk children by the very court that deals with those issues - the Family Court.


The Family Court operates in secret. A decade ago it even stopped publishing statistics on judgments. In the main, the court deals with children at risk from the effects of family breakdown, either through custody and access battles between separating parents, or care and protection cases by which children are removed from abusing adults in order to keep them safe.


The unintended consequence of such secrecy is that there is frighteningly little public awareness and understanding of what is causing this growing social problem.


In an attempt to shed some light on this concerning issue, I drafted a private member's bill to open up the Family Court to public and media scrutiny, which is about to be debated by Parliament.


The Family Court (Openness of Proceedings) Bill has a presumption of openness while still providing for the protection of the identity of individuals. Under the bill, judges retain the right to close the court on a case-by-case basis.


While the framework I chose emulates that of the Australian Family Court, it is similar to the way the New Zealand Taxation Review Authority operates, reporting on judgments but protecting identities, and the Youth Court, which is open to accredited media but has in place strict disclosure rules.


The change would also parallel changes to the select committees of Parliament, which used to be closed but now operate under a presumption of openness.


Many concerns about the Family Court are based on the fact that while society has moved on, Family Court rulings have not. For 30 years, preferential sole custody of the children of separating parents has generally been awarded by the court to mothers.


The law created an incentive for a couple going through a rocky patch to separate and file for sole custody. The custodial parent got the kids, the house, a secure income in the DPB, child support and had extraordinary power over the other parent if that person chose to use the children as a weapon.


The non-custodial parent - usually the father - stood to lose everything, including his children. Worse, because of the court's secrecy, he was denied the right to speak out about the injustice.


Children, however, have been the biggest losers. Many have effectively lost their fathers, not because of war or some other terrible tragedy, or even because he was a bad father, but because of an arbitrary decision made by a judge. As a result, we have the most under-fathered generation in the Western world.


In fact, if present trends continue, by the year 2010, 50 per cent of European and 75 per cent of Maori infants under a year old will be living in families in which there are no fathers. With international research clearly linking crime to increasing family breakdown, the problems we face, unless we do something, look set to become overwhelming.


Losing a child or a grandchild through such judgments has destroyed tens of thousands of people emotionally, spiritually and financially. It has driven some to murder and suicide.


A psychologist, who had worked for the Family Court for 10 years, saw the pain and observed: "The Family Court has a culture of violence that brutalises families and individuals in ways that we are not prepared to tolerate from the prison service, the police, the military or Inland Revenue."


Strict disclosure rules have also shielded Family Court judges, lawyers and case-workers from accountability. Further, they have obscured the need for institutional reform.


In Australia, when the Family Court was opened, custody and access warfare reduced as couples, understanding more clearly the true cost of litigation, opted for mediation. In some states, 80 per cent of applications are now settled by mediation, without the need for a lawyer, and the number of false allegations being made, a huge problem here in New Zealand, has shown a marked decline.


In New York when the Family Court was opened up in 1997, public and media scrutiny of child welfare cases resulted in major reform of the state-funded child welfare agency. Here, our Family Court prevents the public from being aware of the full extent of child abuse even though 95,000 children are reported to be at risk.


Further, by shielding the perpetrators from the wrath of the public, the Family Court has been responsible for sweeping this most inhumane of crimes under the carpet. Since the media can only report on cases that come before the District Court, when criminal charges are laid, atrocities that occur daily remain covered up.


If child abuse cases were heard in an open court, our child abuse crisis would be properly exposed, the child welfare department's failures would become visible, and a momentum for change would develop rapidly.


New Zealanders would call on Parliament to address the underlying causes of this growing problem and the result would be that the incentives inherent in the welfare and legal systems that lead to family breakdown, parental conflict and alienation and damaged children would finally be changed.


My bill has the support of many, including Sir Geoffrey Palmer, who believes that justice is not done unless it is seen to be done, and Anita Chan, chairwoman of the family law section of the Law Society, to be sent to a select committee of Parliament.


I hope the Government can put aside partisan politics and, in the interest of those vulnerable children who are at risk, support the bill as well.


* Dr Muriel Newman is an Act MP. Her bill is on the parliamentary order paper for next Wednesday.