Abstract
This thesis focuses on children’s participation rights in the context of private law disputes in the New Zealand family justice system. The United Nations Convention on the Rights of the Child (UNCRC) 1989 introduced a strong frame of reference in international law for children’s participation in legal proceedings. However, it did not address what amounts to best practice for children’s participation in private law disputes. Instead the United Nations intended that the Convention be interpreted and applied in a manner most appropriate for each domestic context, encouraging States Parties to create their own best practices for child participation. As a result, internationally, there is a wide divergence in the mechanisms, procedures, practices, purpose and form that children’s participation takes within private law disputes.
The New Zealand government ratified the UNCRC in 1993, thereby accepting the legal obligation to implement its minimum standards for children’s rights. There is provision for children to participate, both directly and indirectly, in private law disputes in the New Zealand family justice system. In in-court proceedings, s 6 of the Care of Children Act 2004 (COCA) provides that children must be given reasonable opportunities to express their views and these views must be taken into account. The primary way of achieving this, is at the court’s discretion, through appointment of a lawyer to represent the child (s 7). The child’s lawyer can also advise the court if they consider it appropriate for the child to meet the judge, thereby enabling direct participation. Out of court, the Family Disputes Resolution Act 2013 (FDR Act) is silent on children’s views in mediation processes. FDR suppliers have, however, developed and implemented child participatory processes since 2016, but there are no standardised best practice guidelines yet in place. As a result, these processes vary between the different suppliers.
Given this inconsistency in law and practice, and the UNCRC impetus to consider the context within which children’s rights will be exercised, this thesis examined (i) What is meant by children’s participation in family law proceedings? (ii) Why are children participating in private law disputes? (iii) How are children participating in private law disputes within the New Zealand family justice system, and internationally? (iv) How adequately is children’s participation in the family justice system supported by theoretical understandings: and (v) Are additional elements required in participatory processes to ensure children’s participation rights are effectively respected and realised in private law disputes?
This research addressed the intended ambit of Article 12 of the UNCRC, the prevalent barriers that together inhibit realisation of children’s right to participate, the manner in which the Article has been interpreted and promoted and, in, turn, how this has informed the development of participation processes globally. Although the right to participate is a relatively new right an historical analysis of the origins of the practice of children participating in private law disputes in this thesis traces the practice back to the 17th century. A comparative analysis of child participation in family law policy in the New Zealand context highlights a fragmented approach to children’s participation comprising at times world-leading policy and practice initiatives yet at other times weakened child participation opportunities or complete exclusion of the child’s right to participate in legislation.
An international comparison of child participation processes confirms the lack of global consensus on how, and to what extent children should participate in private law disputes. Identified, is the need for a general model of child participation which encapsulates all of the essential elements of Article 12 and is UNCRC compliant. A template model would enable a best practice standard of child participation in private law disputes, across jurisdictions, to be established.
The thesis discusses the theoretical underpinnings of children’s participation, including the commonalities emphasised by the disciplines of Children’s Rights, Sociocultural Theory and Childhood Studies, and identifies how these contribute to our understanding of children’s participatory frameworks. Since their interconnectedness is under-theorised in practice, a more integrated nexus between them is required. The thesis highlights how, together, these theories can contribute to the interpretation of Article 12, inform participation processes and challenge attitudinal barriers to children’s participation rights.
Many interlinking factors were identified as working together to influence the policy and practice associated with children’s participation. Importantly, these included fiscal constraints, entrenched adult attitudes towards children, and the manner in which Article 12 has been interpreted.
A Thought Model has been developed to illustrate the more comprehensive nexus between the theoretical underpinnings of child participation and to drive a change in how Article 12 is approached and implemented. A Seven Essential Steps model has also been designed to identify the critical components required in any future child participation model. The Thought Model and Seven Essential steps are then combined in a New Child Participation Model that depicts the interconnectedness between the conceptual support for children’s participation beyond Rights Theory, and how children and adults can engage and interact to ensure Article 12 compliance and effective child participation. While the model is primarily centred on private law disputes it does have applicability to all children in all domains of their lives.
Recommendations from this study include incorporating new legal provisions in both the COCA and FDR Acts to embed children’s right to participate in private law proceedings and introducing new mandatory mechanisms to facilitate their participation. It will also be important to review current participation processes in FDR mediation, and to introduce national guidelines to ensure a consistent approach to children’s participation in out-of-court dispute resolution processes.