2 2 SUBMISSION ON THE VULNERABLE CHILDREN BILL Introduction and overview 1. The New Zealand Law Society (Law Society) welcomes the opportunity to comment on the Vulnerable Children Bill (Bill). 2. The Law Society shares the concern about New Zealand s record of child neglect and abuse, and supports initiatives to protect vulnerable children. The Law Society supports legislation that promotes the rights of children as reflected in the UN Convention on the Rights of the Child (UNCROC), including that every child has the right to life and to survival and development. It is appropriate for the Government to act positively to ensure the safety of children. Cross-Agency Measures (Part 1) 3. If Government agencies work together in the spirit of the Bill s purpose and intention, many children who are at risk will benefit. Given the importance of the subject matter of the Bill, the framework for this collaboration must be as strong as possible. The Law Society s submission identifies ways in which this framework could be strengthened. Child Harm Prevention Orders (Part 2) 4. Child Harm Prevention Orders are a novel feature of the Bill. The Law Society notes that these orders allow considerable limitations to be imposed on a person's freedom of movement and association (clause 58), where a court finds on a balance of probabilities that the respondent has committed a qualifying offence under clause 55. These qualifying offences are some of the most reviled crimes on New Zealand s statute book and carry with them a significant stigma. Regardless of the statement in clause 44(2) that it is not a purpose of Part 2 to punish persons subject to Child Harm Prevention Orders, those orders will be punitive in effect. 5. The proposal for Child Harm Prevention Orders is not the only current proposal involving civil measures to address issues that were previously the domain of the criminal law. Other examples are the Public Safety (Public Protection Orders) Bill and proposals for addressing cyber-bullying. The concern raised by such proposals is that they remove safeguards associated with the criminal law. 6. The significant consequences for the subject of a Child Harm Prevention Order raise concerns about the lower standard the State is required to meet in the civil context. Such measures must be closely scrutinised to ensure they can be demonstrably justified. The Law Society s recommendations are
3 intended to ensure that the infringement of important individual rights is proportional to the purpose of the Bill. 3 Amendments to Children, Young Persons, and Their Families Act 1989 (Part 3, Subpart 1) 7. The Law Society s comments on this part of the Bill focus on ensuring that the Bill protects children and young people by supporting caregivers and promoting permanent placements of children. Part 1, Subpart 1: Government priorities for vulnerable children and vulnerable children s plan Clause 5 Definition of child, and consequential amendments related to de facto relationships 8. Clause 5 of the Bill defines child for the purposes of Part 1, Subpart 1 as a person who is under the age of 18 years, and is not married or in a civil union. 9. This definition is consistent with the definition of child under section 8 of the Care of Children Act 2004 (COCA): a person under the age of 18 years. However, the definition of child in clause 5 differs from the clause 15 definition of child (for the purposes of Part 1, Subpart 2: child protection policies). Clause 15 defines child by reference to the definition of child and young person in the Children, Young Persons and Their Families Act 1989 (CYPTF Act). The CYPTF Act defines a child as a boy or girl under the age of 14 years of age and a young person as a boy or girl over the age of 14 years but under the age of 17 years who is not married or in a civil union. 10. The Age of Majority Act 1970 and the Adoption Act 1955 define a child as under the age of 20 years. An order for guardianship under the CYPTF Act may continue until a young person in need of care and protection attains the age of 20 years. 11. It would be preferable if there were a consistent definition of child across these statutes. In particular there does not appear to be a good reason for the meaning to differ internally within the Bill. It makes no sense for there to be a different age limit in respect of priorities for vulnerable children and the vulnerable children s plan, on the one hand, and child protection policies on the other. 12. Section 46A of COCA provides for a child aged 16 or 17 to obtain written consent of each of his or her guardians to live in a de facto relationship, or if consent cannot be obtained, a Family Court Judge may make an order giving consent. Paragraph (b) of the clause 5 definition of child only refers to marriage and civil union. There does not appear to be any reason for treating a child aged 16 or 17 who is living in a de facto relationship by virtue of section 46A of COCA differently from a child who is
4 4 married or in a civil union. The same point can be made about the definition of young person in section 2 of the CYPTF Act (a boy or girl over the age of 14 years but under the age of 17 years; but does not include any person who is or has been married or in a civil union). It is possible that a 16 year old may be legally in a de facto relationship by virtue of section 46A of COCA and fall within the definition of a young person for the purposes of the CYPTF Act. 13. Section 2D of the Property (Relationships) Act 1976 defines a de facto relationship as a relationship between two persons who are both aged 18 years or older, who live together as a couple, and who are not married to, or in a civil union with, one another. For consistency, section 2D of the Property (Relationships) Act 1976 should also be amended to reflect that a child aged 16 or 17 who is living in a de facto relationship by virtue of section 46A of COCA is in fact in a de facto relationship. s 14. The Law Society recommends that: Clause 5 or 15 be amended so that a consistent definition of child is used throughout the Bill Consideration be given to a consistent definition of child in the Age of Majority Act 1970, the Adoption Act 1955, the CYPTF Act and COCA The definition of child in clause 5(b) be amended to is not married or in a civil union or living in a de facto relationship by virtue of section 46A of COCA The definition of young person in section 2 of the CYPTF Act be amended to but does not include any person who is or has been married or in a civil union or living in a de facto relationship by virtue of section 46A of COCA Section 2D of the Property (Relationships) Act 1976 be amended to reflect that a child aged 16 or 17 who is living in a de facto relationship by virtue of section 46A of COCA is in a de facto relationship. Clause 5 Definition of Vulnerable Children 15. Vulnerable children are defined in clause 5 as children of the kind or kinds (that may be or, as the case requires, have been and are currently) identified as vulnerable in the setting of Government priorities under section 7.
5 5 16. The Law Society appreciates the desire to maintain flexibility in terms of identifying at-risk children, but the definition of vulnerable children is central to the Bill and it is important that Ministers and Government agencies making decisions under the Bill are given adequate guidance on the face of the enactment. 17. Volume 2 of the White Paper (at page 31) provides the following definition: Vulnerable children are children who are at significant risk of harm to their wellbeing, now and into the future, as a consequence of the environment in which they are being raised and in some cases, due to their own complex needs. Environmental factors that influence child vulnerability include not having their own basic emotional, physical, social, developmental and/or cultural needs met at home or in their wider community. 18. The measures for promoting the best interests of vulnerable children that are set out in clause 6 also provide relevant indicators. 19. The Law Society recommends that the definition of vulnerable children in clause 5 be amended. A possible wording is to adopt the definition from the White Paper, as below: Vulnerable children means children who are at significant risk of harm to their wellbeing, now and into the future, as a consequence of the environment in which they are being raised or due to their own complex needs. A further explanation of what counts as a consequence of the environment might then follow. For example: Environmental factors that influence child vulnerability include not having their own basic emotional, physical, social, developmental or cultural needs met at home or in their wider community. The threshold would remain significant risk of harm to wellbeing. Children s agencies 20. The Law Society welcomes the proposals for the establishment of the Children s Teams and the Vulnerable Children s Board referred to on pages 3 and 4 of the Explanatory Note. 21. The Explanatory Note suggests that the new Teams and the Vulnerable Children s Board will operate in relation to children who do not require immediate intervention from Child Youth and Family but whose circumstances make them at risk of abuse or neglect in the future. One of the ways in which the framework set out in the Bill could be strengthened is by establishing the Children s Teams and the Vulnerable Children s Board by statute, and defining their purposes, functions and powers, to provide them with legal authority for intervention.
6 6 22. The Law Society recommends that that the Children s Teams and the Vulnerable Children s Board be established, and their respective roles and jurisdictions prescribed, by the Bill. Clause 7 Government priorities for vulnerable children 23. Clause 7(1) states that the responsible Minister may from time to time, after consulting with the children s Ministers, set Government priorities for improving the welfare of vulnerable children. 24. If no responsible Minister is designated in terms of clause 5 then it appears that clause 7 never becomes operative, as it is the designated responsible Minister who has the duty to set Government priorities. The Bill could be strengthened by providing for the Minister of Social Development to have the default responsibility to set Government priorities for improving the well-being of vulnerable children in the event of no designation of a responsible Minister. 25. It would be consistent with the functions of the Children s Commissioner in section 12 of the Children s Commissioner Act 2003, and a reiteration of the primary role of the Commissioner as an advocate for children under section 2 of that Act, for there to be a duty on the responsible Minister or the children s Ministers to consult with the Office of the Children s Commissioner (OCC) on the setting of priorities for improving the well-being of vulnerable children. s 26. The Law Society recommends: That clause 7(1) be amended to provide that the Minister of Social Development is given the default responsibility to set Government priorities for improving the well-being of vulnerable children, in the event that no Minister is designated by the Prime Minister as the responsible Minister for the purposes of the Subpart That clause 7(3) be amended to require the responsible Minister or the children s Ministers to consult with the OCC on the setting of priorities for improving the well-being of vulnerable children. Clause 8 Preparation of vulnerable children s plan 27. Clause 8 sets out the duties of the chief executives of the children s agencies and the responsible Ministers in relation to the preparation of the vulnerable children s plan. Just as the OCC should be
7 7 consulted on the setting of Government priorities for vulnerable children, the OCC should also be involved in the preparation of the vulnerable children s plan. 28. The Law Society recommends that clause 8(1)(a) be amended to provide that the chief executives of the children s agencies must develop a draft vulnerable children s plan in consultation with the OCC. Clause 9 Content of vulnerable children s plan 29. Clause 9 specifies the content of the vulnerable children s plan. The plan must set out the steps that will be taken by chief executives of the children s agencies to work together to achieve the Government s priorities for improving the well-being of vulnerable children. The definition of children s agencies in clause 5 limits the Ministries that will have this responsibility and therefore the chief executives who will be required to work together. This provision could be strengthened by requiring consultation with the Vulnerable Children s Board, the National Children s Director, and the non-governmental organisations (NGOs) and other agencies which may be required to implement the plan. 30. The vulnerable children s plan would have greater direction, and a standard against which it can be measured, if it were required to identify how the measures aimed at protecting vulnerable children set out in clause 6(a) to (f) are to be achieved. s 31. The Law Society recommends that clause 9 be amended to require that: The chief executives of the children s agencies also consult with the Vulnerable Children s Board, the National Children s Director, NGOs and other agencies which may be required to implement the plan The vulnerable children s plan identify how the measures aimed at protecting vulnerable children set out in clause 6(a) to (f) are to be achieved. Part 1, Subpart 2: Child protection policies Clause 18 School boards to adopt and require child protection policies 32. Clauses 16 and 17 require prescribed State services and District Health Boards to adopt, report on and require child protection policies to be in place. Clause 18 requires the same of school boards but imposes no requirement to report on these policies.
8 8 33. That clause 18 be amended to require school boards to report annually to the Ministry of Education on their child protection policies. Clause 19 Content of child protection policy 34. Clause 19 provides that the child protection policy must apply to the provision of children s services by the service, board, or independent person that adopts the policy. Every policy must be written, and must contain provisions on the identification and reporting of child abuse and neglect in accordance with section 15 of the CYPTF Act. 35. There is no provision for any external party to check, review or monitor child protection policies. As a result there is no mechanism for achieving consistency of the policies between different agencies. One of the concerns raised about the current processes is that the framework contains a concerning level of inconsistency and variation that undermines its efficacy and may result in an intervention lottery for our most vulnerable children. 1 It would be unfortunate if this continued to be an issue despite the opportunity to address it in this Bill. 36. The Law Society recommends that clause 19 be amended to provide that each child protection policy be audited by an appropriate Government agency, to ensure consistency. Part 1, Subpart 3: Children s worker safety checking Timing of checks 37. Subpart 3 of Part 1 introduces obligations in relation to children s worker safety checking. A minor amendment is recommended, to provide greater clarity about the timing of the checks. Clause 26(2) provides for safety checks of existing workers to be done within 3 years (for core workers) and 4 years (for non-core workers) of the Subpart coming into force, and clause 27 provides for periodic safety checks to be done at least every 3 years. It would be helpful to clarify that the timing of the 3- yearly periodic check runs from the date on which the initial check of the existing worker was undertaken. 1 Child Abuse Intervention: Reporting Protocols in the New Zealand Health Sector, Louisa Jackson, (2013) VUWLR 17, 43.
9 9 38. The Law Society recommends that clause 27(1) be amended so that it reads: Subject to section 26(2), a specified organisation must ensure that each children s worker whom it employs or engages is safety checked at intervals of no more than 3 years. Consequences of unsatisfactory safety check 39. The Explanatory Note states that clauses 25 to 27 do not prohibit the employment or engagement of any person; they merely require that specified organisations safety check their children s workers. However clause 28 provides for the suspension or termination of employment of a core worker who has been convicted of a specified offence. The Bill is otherwise silent on the consequences of an unsatisfactory safety check. In the case of new children s workers (clause 25), the offer of employment could be made conditional on a satisfactory safety check, but the position for employers of existing workers is more difficult. If it is intended that employers take steps in relation to conduct identified through a safety check which falls short of conduct caught by clause 28, then the Bill should make that clear. 40. The Law Society recommends that the consequences of an unsatisfactory safety check of existing workers be made clear in the Bill. Clause 28 core worker conviction termination of employment 41. Clause 28 requires employers to suspend or terminate a core worker s employment if that worker has been convicted of a specified offence and does not hold a clause 34 exemption. Such a suspension or termination is deemed to be justified under Part 9 of the Employment Relations Act Section 28(3) imposes an obligation to suspend or terminate, without the worker having any remedy, a year after the Subpart comes into force. There is no provision for notice to the worker concerned, nor any other procedural safeguards. It is conceivable that a worker could be the victim of mistaken identity or computer error. In some cases it may be desirable for workers to have the opportunity to apply for a clause 34 exemption. 43. If suspension under clause 28(4) and (5) were a prerequisite to termination of the core worker, the worker would have 5 working days notice of the impending termination and the reasons for it. However this is not clear, and the fact that suspension and termination are referred to throughout
10 10 clause 28 in the alternative suggests that it is not the case. We also note that 5 working days notice is unlikely to be sufficient time to apply for a clause 34 exemption, nor for a decision to be made on any such application. 44. The Law Society recommends that: Clause 28 be amended to clarify that suspension is a necessary precursor to termination of employment, to give workers an opportunity to seek an exemption under clause Consideration be given to amending clause 28 to ensure that sufficient time is given to suspended workers to seek a clause 34 exemption. Disclosure of safety check results to third parties 45. The Bill does not state whether the results of a safety check are confidential, or whether affected or interested parties may have access to them and if so, on what basis. There may be good reasons for a parent, guardian or assessor of children s facilities to have access to safety check results. 46. The Law Society recommends that consideration be given to allowing appropriate access to third parties such as parents, guardians or assessors of children s facilities, consistent with the goals of the legislation and having regard to the privacy interests of the workers. Clause 31(3) Criminal Records (Clean Slate) Act Clause 31(3) of the Bill provides that: Despite anything in the Criminal Records (Clean Slate) Act 2004, nothing in that Act authorises the concealment of a conviction for a specified offence of a person who is subject to a safety check in relation to employment or engagement as a core worker, even if the person is otherwise deemed to have no criminal record. 48. This provision covers similar ground to section 19(3) of the Criminal Records (Clean Slate) Act, which provides for exceptions, including where: (e) (f) the eligible individual has made an application to act in a role predominantly involving the care and protection of, but not predominantly involving the delivery of education to, a child or young person (for example, a foster parent or a caregiver of children or young persons); or the eligible individual's criminal record or information about an eligible individual's criminal record is relevant to an investigation under section 17 of the Children, Young Persons, and Their Families Act 1989 of a report of illtreatment or neglect of a child or young person or in relation to any procedure
11 11 under Part 2 of that Act arising from an investigation of that kind (including, without limitation, holding a family group conference or a Family Court's consideration of an application for a declaration that a child or young person is in need of care or protection); 49. If the Criminal Records (Clean Slate) Act exceptions are not considered sufficient, it would be desirable to extend them. It would be logical and avoid duplication and confusion if all exceptions were contained in the Criminal Records (Clean Slate) Act. 50. The Law Society recommends that clause 31(3) be deleted and section 19(3) of the Criminal Records (Clean Slate) Act be amended to include any further exceptions considered necessary for the purposes of the Vulnerable Children Bill. Part 2: Child harm prevention orders Clause 48 application for child harm prevention order 51. Part 2 of the Bill provides for the imposition of Child Harm Prevention Orders (CHPOs), for the purpose of enhancing the safety of children by imposing restrictions on persons who pose a high risk of serious harm to them (clause 44). Clause 48(4)(c) states that an application for an order must not be made unless the respondent is aged 18 years or over. As currently drafted, clause 48(4)(c) would allow a Youth Court offender to be subject to a Child Harm Prevention Order. The provision should be amended to provide that the application for an order must not be made unless the respondent is aged 18 years or over at the time of committing the offence. That would be consistent with the approach taken in section 87(2)(b) of the Sentencing Act 2002 (which deals with preventive detention). 52. Clause 55(9), which states that a CHPO may not be made against a child, is superfluous given that an application cannot be made unless the respondent is aged 18 or over (clause 48(4)(c)). s 53. The Law Society recommends that: Clause 48(4)(c) be amended to provide that the application for an order must not be made unless the respondent is aged 18 years or over at the time of committing the offence Clause 55(9) be deleted.
12 12 Clause 54 Victims contribution to reports 54. Clause 54 requires that victims be given an opportunity to submit to the applicant information relevant to whether the respondent poses a high risk of committing one or more qualifying offences and whether those offences would cause serious harm to a child or children. 55. Section 18 of the Victims Rights Act 2002 provides for procedures to be followed when victims provide information for sentencing, including requiring that the victim be informed of how the information may be used and who may see it, that the victim must ensure the information is true, and that the information must be recorded and may be verified. 56. The Law Society recommends that provisions similar to those set out in section 18 of the Victims Rights Act be adopted in the context of clause 54. Clause 55 Child Harm Prevention Orders 57. The Law Society has a number of concerns with the terms of clause 55 of the Bill. That clause permits a Court to make a CHPO if: the respondent has been convicted of a qualifying offence (clause 55(1)(a)), or the Court finds on the balance of probabilities that the respondent has committed a qualifying offence (clause 55(1)(b)); and the Court is satisfied the respondent poses a high risk of committing one or more qualifying offences (clause 55(2)(a)); and the Court is satisfied those offences, if committed, will cause serious harm to a child (clause 55(2)(b)). 58. The Law Society's concerns are: The proper forum in which to determine whether a person has committed an offence is a criminal trial. Clause 55(1)(b) offends that basic premise of our legal system Clause 55(1)(b) also allows a person to be tagged with the stigma of having committed a serious criminal offence (see the list of offences in Schedule 3) on the basis of the significantly lower civil law standard of the balance of probabilities. That sets a very concerning precedent.
13 Clause 55(2)(a) refers to "high risk". In the Law Society's view what is actually intended is a requirement that the Court be satisfied of a "high likelihood" that the respondent will commit a qualifying offence Clause 55(2)(b) refers to "serious harm", but the Bill does not define that key term. It is not clear, for example, whether the harm has to be physical harm or whether psychological harm would be sufficient. Nor, if the concept is confined to physical harm, does the Bill assist the Court to know what is intended by the qualifying word "serious". 59. In addition to these concerns about clause 55, the Law Society notes that since the effect of the CHPO is punitive in nature (notwithstanding the statement in clause 44(2) of the Bill to the contrary), the retrospective application of the CHPO regime (see Schedule 3, clause 2) breaches the prohibition on the imposition of punishment retrospectively. In this regard, this Bill exhibits similar problems to those noted by the Law Society in respect of the Public Safety (Public Protection Orders) Bill. 2 s 60. The Law Society recommends that: In light of the significant departure in clause 55(1)(b) from established legal norms, the Law Society urges the Select Committee carefully to consider whether clause 55(1)(b) should be enacted If, however, it is to be enacted then the Law Society considers its concerns in respect of the rest of clause 55 should be addressed: The phrase "high risk" should be replaced by the phrase "high likelihood" The phrase "serious harm" should be defined Serious consideration needs to be given to whether clause 55 should be able to apply retrospectively. Clause 64 Review of child harm prevention order by review panel 61. Reports by a registered psychologist and health assessor appear to be integral to the decision to impose a CHPO. However there is no provision for either of these reports to be updated for the purposes of the clause 64 review by the review panel. By comparison, the clause 69 provision for review by the court requires that the court be provided with all reports provided to the review panel 2 NZLS submission dated to the Justice and Electoral Select Committee, available at
14 14 during its most recent review, and that the court may call for any further or supplementary reports from any person. s 62. The Law Society recommends that clause 64 be amended, to provide: For the reports provided by the registered psychologist and health assessor under clauses 52 and 53 to be updated for the review by the review panel That the review panel may call for any further or supplementary reports from any person. Clause 80 Court may suppress identity of respondent or person subject to order 63. Clause 80 authorises the court, in certain circumstances, to forbid publication of the name of the respondent to an application for a CHPO, or a person subject to an order. 64. Clause 80(2) states: (2) The court may make an order under subsection (1) only if the court is satisfied that publication could be likely to cause (a) (b) extreme hardship to the respondent or the person subject to the order; or undue hardship to any other person 65. Section 200(2) of the Criminal Procedure Act 2011 provides for a similar power in that context: 200 Court may suppress identity of defendant (2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to (a) (b) (c) (d) (e) (f) (g) (h) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or cast suspicion on another person that may cause undue hardship to that person; or cause undue hardship to any victim of the offence; or create a real risk of prejudice to a fair trial; or endanger the safety of any person; or lead to the identification of another person whose name is suppressed by order or by law; or prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or prejudice the security or defence of New Zealand.
15 It is conceivable that some of the circumstances contemplated by section 200(2) that are not included in clause 80(2) (such as prejudice to the maintenance of the law, including the prevention, investigation, and detection of offences) could arise in the context of a child harm prevention order. 67. The Law Society recommends that clause 80(2) should adopt the wording of section 200(2) of the Criminal Procedure Act PART 3 AMENDMENTS TO ACTS Subpart 1 Amendments to Children, Young Persons, and Their Families Act 1989 Clause 101 Section 2 amended (Interpretation): Permanent Caregiver 68. The definition of permanent caregiver in new section 2(1)(b) refers to a special guardian or a guardian under section 27 of COCA who has rights under section 48 of COCA, appointed under certain circumstances. 69. A person does not have care of a child by reason of being appointed as a guardian under section 27 of COCA. And section 48 of COCA does not only confer rights of day-to-day care: it confers either rights of day-to-day care or rights of contact. It would be desirable to draft clause 101 to make it clear that permanent caregiver refers to a person who has assumed day-to-day care of the child. 70. The Law Society recommends that the definition of permanent caregiver in clause 101 be amended to make it clear that a permanent caregiver is a person who has assumed care of a child formerly in the custody or sole guardianship of the chief executive and who has, in respect of that child, been appointed as a guardian under section 27 of COCA and has obtained a parenting order under section 48 granting him or her day-to-day care of that child. Clause 102 Section 5 amended (Principles to be applied in exercise of powers conferred by the Act) 71. Clause 102 amends existing section 5 by inserting a new principle that decisions affecting a child or young person should be made by adopting a holistic approach that takes into consideration a number of factors, without limitation. 72. The new principle does not appear to add anything to the existing principles contained in section 5, and in particular section 5(c) (consideration must always be given to how a decision affecting a child
16 16 or young person will affect the welfare of that child or young person ), taking into account that section 6 provides for the welfare and interests of the child or young person to be the first and paramount consideration. 73. The Law Society recommends that clause 102 be deleted. Clause 103 Section 13 amended (Principles) 74. Clause 103 amends the principles in current section 13 of CYPTFA to state that... the court or person must be guided by the principle that children and young people need to be protected from harm and have their rights upheld.... The current language of section 13, which provides children must be protected from harm, is stronger than the proposed new provision (children and young people need to be protected from harm). 75. The Law Society recommends that clause 103(2) be amended by replacing the word need with must. Clause 104 Section 14 amended: Definition of child or young person in need of care or protection 76. Clause 104 amends existing section 14 in order to describe when a subsequent child is in need of care and protection. The definition of parent in current section 2 includes a step-parent who shares care of the child. A child may well have more than one caring parent, for example a stepparent who shares responsibility for day-to-day care. As currently drafted, it is unclear whether new section 14(1)(ba) applies where one such parent falls within subsection (3) or only where both parents do (including a step-parent). New section 14(1)(ba) should be amended to clarify what is intended in this regard. 77. Clause 104(4)(b) includes a reference to a parenting order under section 48 of COCA. As noted above at , such orders may include orders relating to contact as well as day-to-day care. It is not clear whether clause 104(4)(b), as currently drafted, encompasses parenting orders giving contact as well as day to day care. It is also not clear whether it is referring to a parenting order giving day-to-day care to someone other than the parent from whom the child has been removed, for example, a permanent caregiver. It would be desirable to amend clause 104(4)(b) to clarify that the section 48 parenting order referred to is for day-to-day care and is one made in favour of a permanent caregiver.
17 Clause 104(4)(c) refers to a decision that there is no realistic prospect that the child or young person will be returned to the person s care. This decision must have been made by a court or a Family Group Conference (FGC). It is not clear where in the process a court or FGC would have made such a decision. In order to satisfy subsection (4)(c), the social worker at the inquiry stage will have to go back to a Judge or have an FGC convened (despite new section 18B(2) which provides that where an application is made under new s18b no FGC need be held before the application is heard by the court) to obtain a statement about the realistic prospect of return. This appears to require approaching the court twice (absent an FGC) even if the social worker is satisfied that the child will be safe, which seems cumbersome and unnecessary. Clause 104(4)(c) should be amended to allow the investigating social worker to make the determination about realistic prospect of return of the previous child. s 79. The Law Society recommends that: New section 14(1)(ba) be amended to clarify whether paragraph (ba) applies when either parent or both parents (including a step-parent who shares responsibility for day-to-day care) falls within subsection (3) Clause 104(4)(b) be amended to clarify as to whether the reference is intended to be to a parenting order giving day-to-day care to someone other than the parent from whom the child has been removed Clause 104(4)(c) be amended to allow the investigating social worker to make the determination about realistic prospect of return of a previous child removed. Clause 106 New section 18A Assessment of person described in section 14(3) 80. Clause 106 inserts four new sections that deal specifically with subsequent children who may be in need of care and protection. New section 18A requires a social worker (except in certain cases) to undertake an assessment of whether a person described in section 14(3) meets the requirements set out in new section 18A(2). 81. New section 18A(3) (which provides for the social worker to conclude that the parent does not meet the section 18A(2) requirements unless the parent demonstrates that he or she does) appears to be unnecessary. New section 18A(5) provides that a social worker may only decide not to apply for a declaration under section 67 on the ground that the parent has not demonstrated that he or she
18 18 meets the section 18A(2) requirements, if the parent has demonstrated that he or she meets those requirements. 82. The Law Society recommends that new section 18A(3) be deleted. Clause 106 New section 18B Application to court in relation to person described in section 14(3) 83. New section 18B requires that, following a decision under new section 18A, a social worker must either apply to the court for a declaration under section 67 or apply for confirmation of the decision not to apply. No FGC is required before either such application. New section 18B(2) therefore provides that nothing in section 70 applies. Section 70 provides for no application to be made unless a family group conference has been held. Section 72 provides that the Court is not to make a section 67 declaration unless a family group conference has been held. New section 18B(2) should be amended to read... nothing in sections 70 or 72 applies. 84. Under new section 18B(1)(a) there is no requirement that the social worker apply for any ancillary orders. Various orders can be made under existing section 83 when the court makes a declaration and ancillary orders are generally made when a finding is made that a child is in need of care and protection. It would be wise for parties to be required to identify any ancillary orders that may be required. s 85. The Law Society recommends that: 85.1 New section 18B(2) be amended to read... nothing in sections 70 or 72 applies New section 18B(1)(a) be amended to provide that when a social worker files for a declaration, they must also file an application at the same time specifying any ancillary orders that are sought under section 83. Clause 106 New section 18C Confirmation of decision not to apply for declaration under section New section 18C sets out the procedure for an application for confirmation of a decision not to apply for a declaration under section 67. Following consideration of the application, the court may confirm the decision, decline to confirm it, or adjourn in order to seek more information or a reconsideration of the social worker s assessment and decision. When considering the application, under new section 18C(3) the court may (but need not) allow a person to give evidence.
19 No issue arises if the court intends to confirm the decision not to apply for a declaration. However, if the court decides not to confirm the decision, issues of natural justice arise. It is wrong in principle to override the social worker s decision without giving the parent the opportunity to be heard. The natural justice concerns are compounded by the shift in onus to the parent under new section 18C(5)(b). At the very least, the parent should be given the opportunity to be heard before the court can decide not to confirm the social worker s decision in favour of the parent. 88. The decision under new section 18C(4)(c) not to confirm the decision of the social worker is a significant one for the child, the parent and the family group. Yet the court can make such a decision merely on the papers, without giving reasons. The court should give reasons for its decision not to confirm the decision of the social worker. s 89. The Law Society recommends that: 89.1 New section 18C(3) be amended so that the court, before it can decide not to confirm the social worker s decision in favour of the parent, must give the parent the opportunity to be heard New section 18C(4)(c) be amended to provide that the court must give reasons if it declines to confirm the social worker s decision under new section 18A(4). Clause 107 Section 19 amended (Referral of care or protection cases to care and protection coordinator by other persons or by court) 90 Under new section 18B(2), an FGC need not be held but the implication is that one could be convened in some situations. The mechanism for the court to do this is pursuant to existing section 19. An FGC may be useful in some cases. However, clause 107 prevents the use of this process in applications involving subsequent children. 91 If the intention is that there should be no FGC, this should be explicit as this would be contrary to the conceptual place of the FGC within the structure of the Act. 92 The Law Society recommends that clause 107 be deleted or amended to clarify the circumstances where an FGC is or is not required.
20 Clause 108 Section 22 amended (Persons entitled to attend family group conference) Clause 108 amends existing section 22 by adding section 22(3) which provides that any person who was entitled to attend the original conference may attend an FGC convened to review a decision, recommendation or plan. It appears that this clause reverses the decision of Elias J in CMP v DGSW  NZFLR 1 (HC). That case addressed the concern that the FGC process could be improperly weighted with attendees to achieve a particular outcome, if an FCG was reconvened with different membership than the original to consider the same issue. As was stated in that case: The approach seems to me to be fraught with difficulty in terms of the careful scheme of the Act. The reference to "that conference" seems to me to be quite deliberate. If "that conference" is to be interpreted to mean that the care and protection coordinator can convene a new conference with a different composition, it has serious implications for the integrity of the family group conference. It would enable the decisions of the conference to be changed by manipulation of its membership. Such power would cut across the authority of the family group conference to make decisions in the best interests of the child. It would be a step backwards, to the days of agency dominance which the new Act seeks to avoid. Any such power could undermine the provisions of section 34, which are central. They require the Director-General to give effect to the decisions of a family group conference except in exceptional circumstances If the proposed section 22(3) is retained, it could see a reconvened FGC attended by people who did not attend the first FGC. The reconvened FGC could be subject to quite different dynamics and could effectively allow those who may have been unhappy with the outcomes of an FGC to have the outcome reviewed by people who did not attend the first FGC. Clause 108 should be deleted. 95 The Law Society recommends that clause 108 be deleted. Clause 113 Section 36 amended (Family group conference may reconvene to review its decisions, recommendations, and plans) 96 Clause 113 amends current section 36 which deals with the reconvening of FGCs. It replaces subsection (1) with three new subsections that set out the circumstances in which a conference must or must not be convened. The Law Society agrees with these amendments, as there is currently no requirement to monitor FGC outcomes and/or recommendations. However the Law Society notes that sufficient additional resourcing will be required to give effect to the new provisions to reconvene an FGC to monitor and review its decisions, given the existing delays with FGCs being coordinated and held in a timely fashion. 3 CMP v DGSW  NZFLR 1 (HC) at 31.
21 21 Clauses 115 and 132 New section 86B inserted (No services orders in respect of permanent caregivers) and section 389 amended (financial and other assistance in other cases) Current position 97 Where a Court has made a declaration that a child or young person is in need of care and protection, existing section 86 enables the Court to order the chief executive or any other person or organisation to provide services and/or assistance to a parent or guardian or other person having the care of the child or young person or to the child or young person. Existing section 128 requires such orders to be supported by a plan prepared by a social worker and approved by the Court. Each plan must be reviewed every six or 12 months depending on the age of the child or young person. 98 Services orders are often made to provide therapeutic, medical or educational interventions which are required for the child or young person as a consequence of care and protection concerns but which are not otherwise available through the public health or education system. Orders have been made to enable arrangement of supervised contact between the child or young person and parents when it is not appropriate for the caregiver to do so or to meet the future costs of legal proceedings in respect of the children or young person that the caregivers may be required to initiate or defend. 99 Services orders have commonly been used to reassure caregivers who are making applications for parenting and guardianship orders under COCA that they will still receive support and assistance from the Ministry in circumstances where they are otherwise assuming responsibility for the future care and guardianship of the child. The need for certainty and reassurance has been important given lack of confidence that reasonable support will be provided by the Ministry, highlighted in the Regulatory Impact Statement. 4 Prohibition on services orders 100 Clause 115 inserts new section 86B which prohibits the Court from making a services order or interim services order in respect of the actual or intended permanent caregivers of a child or young person or of the child or young person who is (or will be) in the care of a permanent caregiver. Existing services orders or interim services orders (sections 134 to 137) that are in force on the date on which the section comes into force no longer need to be reviewed and cease to have effect on the date on which they are next due for review. 4 Regulatory Impact Statement Additional amendments to legislation to assist children in care (Family Court appeal process for Home for Life caregivers), July 2013, paragraphs
22 Services orders are to be replaced with a duty on the chief executive to provide financial assistance in the circumstances set out in proposed section 389(2). Issues raised by clause 132 amendments to section 389 as a substitute for services orders 102 Clause 132 amends existing section 389 which gives the chief executive a discretion to make grants or provide financial assistance to any person to assist that person in caring for a child or young person who has ceased to be under the care of the Ministry (whether by agreement or pursuant to custody/guardianship orders or where a services or support order has previously been in place). To meet the criteria for the exercise of discretion, existing section 389(b) requires that the person is in need of special assistance in the circumstances of the particular case. 103 Clause 132 sets out new criteria for the provision of financial assistance to a permanent caregiver (as defined in clause 101). If all five criteria in new section 132(2)(a) to (e) are satisfied, the provision of financial assistance is mandatory. 104 However section 389 does not provide a satisfactory substitute for services orders because the section 132(2)(a) (e) criteria are too restrictive and insufficiently certain to enable caregivers (or their lawyers) to predict whether they will obtain support. 105 The criteria are conjunctive they must all be satisfied in order to meet the threshold for the mandatory provision of assistance. Particular concerns raised by the criteria are: The use of the word extraordinary in (a) (the need for financial assistance arises from the care and protection needs or the extraordinary health, education or development needs of the child or young person) sets a high threshold and will exclude expenses such as clothing, school related costs and orthodontic costs. This will be financially disadvantageous to caregivers (often grandparents or other older relatives who had not planned to support a child at that stage of their lives) who decide to proceed with permanency orders as opposed to continuing under the umbrella of section 101 custody orders. It is also not obvious that future legal costs incurred by caregivers should they be taken to court by a birth parent over day-to-day care, contact or guardianship issues would meet this threshold. This is an issue commonly covered by services orders and is a matter caregivers frequently seek reassurance about. Similarly, it is unclear whether permanent caregivers who have COCA orders and who consider that they require the status of special guardians would meet this threshold and have access to financial assistance to make those applications or whether they will have to fund the cost themselves.
23 Criterion (b) (the financial needs are greater than it is reasonable to expect the permanent caregiver to meet) is subjective. It is likely that in any given scenario the chief executive will have one view of what it is reasonable to expect of the caregiver, while the caregiver has an opposing view. The uncertainty and potential future inconsistency in interpretation will be a disincentive to many caregivers considering permanency Criterion (c) (the financial needs cannot be met by existing sources of support under the Act or any other enactment, and are unlikely to be provided otherwise) requires caregivers to seek support elsewhere before turning to the chief executive. This leaves caregivers who may, for instance, have a child with serious behaviour issues at school, potentially stranded between the Ministry of Education and Child Youth & Family while those agencies seek to allocate responsibility for the additional support that is needed. There is considerable potential for frustration and delay as caregivers seek an agency which will meet the child s needs. In some cases, assistance may be available from an agency other than Child Youth & Family, but not in a time frame appropriate to the child s needs Criterion (d) (it is reasonable in the circumstances for the chief executive to provide the financial assistance) is also subjective, providing no certainty or reassurance to caregivers considering permanency. It is difficult to envisage circumstances which meet the requirements of criterion (a) but do not meet this requirement. It does not appear to add anything and should be deleted Criterion (e) (the provision of financial assistance is consistent with any general or specific directions (not inconsistent with this section) given to the chief executive in writing by the Minister) also creates uncertainty about future provision of assistance given that directions are likely to depend on fiscal considerations and the priorities of the Government of the day. Support for children in permanent placements should be as consistent as possible. 106 It does not appear that the duty to provide support as currently worded covers the situation where caregivers need social work advice or support, as opposed to financial assistance. Caregivers may, for instance, need reassurance that social work advice will be available where the child is displaying concerning behaviour that is beyond the experience of the caregivers. They may seek reassurance that social work assistance will be available to address issues that may arise in the future over contact for the child with a birth parent. In such situations, intervention by a social worker may enable the speedy resolution of the problem or prevent its escalation, to the benefit of the child. Services orders deliver services that often include necessary therapeutic intervention addressing the legacies of the abuse and neglect that those children have suffered and which resulted in them
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