COOK ISLANDS FAMILY LAW BILL. 11 th Triennial of Pacific Women, August 2010, Noumea

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1 COOK ISLANDS FAMILY LAW BILL 11 th Triennial of Pacific Women, August 2010, Noumea 1

2 Approaching a New Family Law Bill The UNDP Pacific Centre, after a request from the Cook Islands government, developed a policy paper to identify good practice law reform options in relation to family law that are in accord with CEDAW, CRC and CRPD. The policy paper uses examples drawn from the Pacific and globally. The policy paper informed a consultation held in Raratonga in Feb 2010 where 22 local participants discussed and recommended the approaches best suited to the context of the Cook Islands and which informed the first draft of the Family Law Bill. The 22 participants made a range of progressive and CEDAW compliant decisions in relation to the content of the Bill. The policy paper could form the basis of similar law reform projects in other Pacific Island Countries

3 Consultation: Cook Islands Feb 2010 Decided which areas should be covered in the new Family Law Bill to be drafted after the consultation Selected the appropriate good practice approach for each component of the new Family Law Bill Identified local context issues for consideration and discussion 3

4 Areas Considered Marriage Divorce The Care of Children Spousal and Child Support Domestic Violence Property Division upon Relationship Breakdown Uipaanga Koputangata/ t Family Group Conferencing 4

5 Divorce 5 CI Consultation decided To enable an immediate divorce upon the request of both parties No need to show that the marriage has broken down or is irretrievable. Sweden has adopted this approach but requires a six month reconsideration period if there are children or if one party requests it. CI Consultation decided to adopt a 12 month reconsideration period if there are children or one party requests but with immediate access to legal remedies such as support orders, property division and residence orders upon separation without the issuance of a separation order.

6 Benefits of Divorce Approach Adopted Fault based systems are criticized for interfering with the autonomy of both men and women and their right to choose when to enter and leave relationships, for increasing hostility and bitterness between the parties, not recognising the interests of any children, and for making it difficult for women to leave violent relationships. Rationale is that marriage is the voluntary union of two persons and therefore a desire to end the union by the parties should be sufficient to end the marriage Consistent with international standards that require the autonomy of all persons to be respected 6

7 The Care of Children CI Consultation decided to incorporate Statement that the principle of the welfare and best interests of the child are paramount A statutory t t checklist of factors to guide the judges in determining what is in the child s best interests needs of the child, wishes of the child etc (as included in the family law legislation in Fiji, Australia and New Zealand) CEDAW and CRC require that in all legal proceedings concerning children the principle of the best interests of the child should be paramount 7

8 Parental Responsibility CI consultation decided to include a statement of parental responsibility It should continue until the child is 18 It should continue regardless of either parent re- partnering CEDAW requires that both parents have parental responsibility 8

9 Parenting Orders Modern family law has moved away from the language of custody and access which foster notions of ownership in children towards an emphasis on parental agreement, and continuing contact with both parents if possible. CI consultation decided d to incorporate parenting orders with 4 components Residence Where the child is to live. Contact Whether and in what circumstances a parent or other person is to have contact with the child. Specific issues Complements residence and details how and by who particular decisions will be made eg medical treatment, school, holidays. Prohibited steps Prevents a decision being made without wither returning to court or asking the other parent. eg surname, nationality, moving overseas. 9

10 ADOPTION CI Consultation decided: Anyone over 18 can apply to adopt a child Non-indigenous children adopted by CI do not gain succession rights to native land Consent to adopt to be obtained from both parents and child over 12 Protection to ensure young women and women with disabilities not pressured to adopt Prospective parents considered on the basis of their ability and capacity to parent To incorporate an open adoption process to enable ongoing contact between birth parents and adoptive parents and child(ren)

11 Benefits of Adoption Process Adopted A child focused approach centred on a means of finding a family for a child rather than a child for a family. Ending the separate rules for European adoption and Cook Islander adoption. Open adoption regime recommended in the literature and the CRC but as yet adopted by few countries

12 Spousal and Child Support CI consultation decided: To extend spousal support to those in de-facto relationships (not to same-sex). To define de facto on the basis of a combination of factors such as length of relationship, shared financial commitments etc. To incorporate statutory factors to determine the amount of spousal and child support eg duration of the marriage or relationship and the effects on earning capacity of the divisioni i of functions within the marriage or relationship etc Liable persons for child support to include biological and adoptive parents but not step-parents (because this might discourage the extensive voluntary parenting that is currently practiced) 12

13 Benefits of CI Approach Recognising de facto relationships important - the CEDAW Committee has stated the lack of a legal framework for de facto unions and the resulting precarious situation in which women in such unions may find themselves when relationships break down Statutory factors mean that women s actual financial position is accounted for. Women often forgo employment opportunities to further the welfare of the family, whilst her male partner works for financial gain. 13

14 Domestic Violence In Pacific Island countries, including the Cook Islands, domestic violence has been increasingly recognized as a growing and substantial problem, which impacts on the physical and mental health of victims and also upon families and communities. Domestic violence can be differentiated from other violence by the existence of a relationship characterized by intimacy, familial ties or a shared household. 2 good practice approaches to DV protection A DV Bill that incorporates civil and criminal law protection Amend existing civil and criminal law to incorporate DV protection CI consultation decided to include the civil law aspects of domestic violence protection into the new Family Law Bill and to seek separately to incorporate DV offences into the criminal law 14

15 Definition of Act of Domestic Violence Domestic violence occurs in many forms, including physical violence, sexual abuse, emotional abuse, intimidation, harassment, stalking, economic deprivation, property damage, animal abuse or threats of any of the above. CI consultation decided to adopt a comprehensive definition of domestic violence. to include a legislative statement that a single incident is enough to constitute domestic violence and, second, that seemingly minor or trivial behavior can constitute domestic violence

16 Who Is protected by the Domestic Violence Legislation? Domestic violence can occur in many contexts and between persons in a range of personal relationships where there are power imbalances. CI consultation decided to protect: Persons married, previously married, or in de-facto relationships Persons in a close personal relationship Persons who have a child with the offender Family members Persons who share a residence Persons dependant on another for care 16

17 Protection Orders CI consultation decided to incorporate: Protection ti orders Occupation orders presumption in favour of protected person Emergency orders immediately accessible 24 hours a day, 7 days a week by phone issuable by the police, court and JP. - With mandatory conditions -With a strong enforcement mechanism criminal offence with imprisonment and fines 17

18 Uipaanga Koputangata/ Family Group Conferencing CI Consultation decided to incorporate family group conferencing A New Zealand model but adapted for the CI context To be used where a child is in need of care and protection An ui is not court action, the family and relevant professionals with a trained chair will develop a plan in the best interests of the child The plan is however reviewable by the court

19 ANY QUESTIONS?