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Not Entirely Legal

Care of Children Act 2004 

On 1 July 2005 the first major change in 37 years to the law relating to the care of children came into force. The Guardianship Act 1968 was replaced by the Care of Children Act 2004. Cynics were quick to point out that the most obvious difference is that the law relating to children had expanded from about 60 sections to 164 sections. It is true that many of the changes consist of saying the same thing in longer sentences, but there are also some major changes. There is also a great deal of popular misconception about those changes. This short column does not even pretend to address all of these matters, but points out some of the important changes.

 

Firstly, the misconceptions. The new Act does not provide that children now make the decisions as to their care. Children, for age, maturity or other reason, are not always capable of making the best decisions for their care and welfare. Normally those important decisions are made by mum and dad. However when mum and dad are separated they are often not capable of agreement. What the law says is that children’s voices must be heard and taken into account by the Court. That’s not new. Nor is it new that in every case the welfare and best interests of the child must be the paramount consideration. As a rule of thumb, the older the child the more weight is given to their views.

 

Perhaps the most significant change is that there are now a greater number of people, other than parents, that can apply for parenting orders. Grandparents, for example, can now apply for parenting orders. Somewhat strangely, however, they, along with other members of the child’s family, need to seek the leave of the Court to apply for parenting orders. Whereas a parent’s partner, regardless of how recently they have become a partner, can apply as of right.

 

That brings me to another major change. A parenting order is the order that you apply for for the care of a child. The Court will then determine the day to day care and/or contact that you and other persons will have of/with that child. The words custody and access no longer apply. I am guessing that this is because the Government wanted to avoid a win/lose scenario often associated with custody disputes.

 

This leads on to popular misconception number 2. This legislation does not provide that as a starting point there is a presumption that the children will spend an equal time with each parent. This has in the past sometimes been called joint custody, although that term has never been legally defined. There was certainly some considerable lobbying for just such a provision to be placed in this new legislation. It hasn’t, and I presume that the reasoning behind it is that joint custody  does not necessarily meet the best needs and requirements of all children. In some cases, of course, it may. Equally dividing the time that each parent has with their child often more closely meets parents ideas of fairness than children’s. King Solomon knew that dividing children down the middle was not always the best option.

 

There are a number of changes that will be welcomed by the parent that has less time with their child, what used to be called “access”. Sometimes the custodial parent deliberately found reasons to not comply with access orders. Professionals term such behaviour “alienating”. Enforcement warrants could be sought, but that usually happened after the breach had occurred. Now the Court can require monetary bonds to be lodged to enforce contact arrangements.  Non-complying parents can be fined. These steps are clearly designed to show that the Family Court will ensure that once orders are made they must be followed and not avoided for inadequate reason.

 

A further change, a change in practice than change in legislation, is the now procedure of Judges in defended cases to see the children or children directly. Prior to this, certainly for the two and a half decades that I have been acting as a Court appointed lawyer for children, it has been explained to children that their wishes can be conveyed to the Court but they themselves will not step inside the Court room door. There has always been the power for a Judge to see children, but it has not been the usual practice.  There is no reason for apprehension about this change. Family Court Judges are rigorously selected from the ranks of the specialist Family Court bar and in addition have training, apart from their own years of experience, in conducting such interviews. It is likely to be a reflection of the fact that at the end of the day children and their rights are of the utmost importance. When you think about it in that way, it seems ridiculous that everybody else has the opportunity to be seen by the Judge, except the most important people, the children.

 

One controversial change is the allowing of reporters into Family Courts to observe and report on what goes on there, providing actual names or identifying details are not published. In small communities that would be scanty protection of privacy. Interestingly, there have no media reports, that I have seen, of any Family Court case since 1 July.

 

 

 

Jamie Steele is a Partner in law firm Keesing McLeod. He specialises in family law, including acting as lawyer for children and also employment and ACC law.