The legal and practice implications of the s18A amendment to the Children Young Persons and Their Families Act 1989

Abstract

This thesis examines section 18A of the Children Young Persons and Their Families Act 1989, which took force on 1 July 2016. The historical, drafting and rights issues associated with its enactment and its implications for child protection practice is the primary focus of the research. Section 18A is intended to prevent the potential risk of serious child maltreatment to a new class of statutory client called a ‘subsequent child’ by their parents who have either had a previous permanent removal of a child in their care or been convicted of the death of a child in their care. This approach is unprecedented in contemporary child protection law in New Zealand due to its focus upon the risk of potential harm as opposed to a forensic investigatory response to actual harm. In addition, the amendment was enacted quickly which precluded opportunities for commentary, debate and research. A research gap therefore exists relating to the implementation, interpretation and potential associated outcomes for vulnerable families who are targeted by the use of legal mechanisms such as section 18A.

This thesis attempts to address this research gap by developing a conceptual framework within which legal mechanisms such as section 18A can be situated. This conceptual framework compares the neglect and protection statutes that were enacted during the colonisation of Australia and New Zealand to draw parallels between Australian Aboriginal parents, children born to unmarried parents in New Zealand, and the two populations of parents identified under section 18B(1)(a) and section 18B(1)(b). Through the application of the framework, immediate challenges are identified relating to the drafting of the mechanism, its interpretation and the potential constitutional and human rights issues associated with section 18A’s enactment.