New Zealand

New Zealand[1] [print]

Last edited: June 2005

Summary and Analysis

New Zealand has a well-developed, formal child protective system.  Its institutions include the Family Court, Child Youth and Family (CYF) Services (a government agency), foster parents “employed” by CYF, non-governmental organizations (NGOs) which have contracts with CYF for the care of children, social workers with CYF and NGOs, and professional lawyers appointed by the Family Court to represent children.  Lawyers appointed by the Family Court to represent children also work as general lawyers and receive special training to act as counsel for child. 

International law is not incorporated into domestic law but must be taken into account when interpreting legislation and in the exercise of statutory discretion.  The primary statute governing the legal representation of children in child protective proceedings is the Children, Young Persons, and Their Families (CYPF) Act.[2]  The CYPF Act provides “for the protection of children and young persons from harm, ill treatment, abuse, neglect, and deprivation.”[3] This legislation was enacted to make provisions for the extended family to be involved in making decisions concerning children and young persons in need of care and protection.[4]

When a child is believed to be in need of care and protection, the CYPF Act requires that a care and protection coordinator convene a family group conference,[5] before the court can make a wide-ranging order affecting the child.[6]  The following people are entitled to attend a family group conference:  the child or young person, her parents/guardians, her family/whanau, the social worker who referred the matter, a care and protection coordinator, counsel for the child, and police.[7]  The function of the family group conference is to determine whether the child is in need of care and protection and to formulate a plan to keep the child safe.[8]  If the family group conference cannot agree, the case goes to the family court.[9]  If the conference does agree on what the child needs, the New Zealand Department of Child Youth and Family must carry out the plan.

The CYPF Act includes several provisions for participation by children and young persons in need of care and protection.[10]  The Act requires the child or young person’s consent before an agreement can be made, except under enumerated circumstances,[11] and provides the right of appeal against decisions of Family Courts to children and young person to whom the proceedings relate.[12]

The CYPF Act further requires that, where a child or young person in need of care and protection is not represented, the Court must appoint a barrister or solicitor to represent the child or young person in proceedings under this Act.[13]  Attorneys appointed to represent children are drawn from the private sector.  The court pays counsel for child at a rate fixed by the central government (currently set at $155/hour, inclusive of goods and services tax).  Appointments are generally made for ten hours at the fixed rate, but attorneys may request more time from the court.  In order to get paid, the attorney must submit itemized accounts.  Payment is usually prompt.

Although the CYPF Act provides that the Court may also appoint a lay advocate to appear in support of a child or young person in need of care and protection,[14] and to represent the interests of the child’s extended family,[15] this rarely, if ever, happens. 

In cases of abuse and neglect, the Domestic Violence Act[16] may also be relevant.  Among other things, the Domestic Violence Act deals with applications for protection.  Under this Act, the Court may appoint a lawyer to represent a child in proceedings on or relating to an application for a protection order made on the child’s behalf.[17]

The Domestic Violence Rules[18] discuss the appointment of a next of friend to a child or a guardian ad litem of the child for purposes of taking proceedings under the Domestic Violence Act on the child’s behalf. 

A related private law statute, the Care of Children Act,[19] which comes into force July 2005, and replaces the Guardianship Act,[20] governs disputes between parents about the day-to-day care of children.  Although the Care of Children Act is not concerned with abuse and neglect, there is significant overlap with the Children Young Persons and their Families Act.  Many of the pronouncements under the Guardianship Act and pronouncements-to-come under the Care of Children Act will inform the role of counsel for child in child protective proceedings.

In addition to these statutes, two practice notes issued by The Principal Family Court Judge[21] and Best Practice Guidelines developed by the New Zealand Law Society[22] provide guidelines to counsel for the child in family court.

Finally, caselaw in the family courts elucidate the role of counsel appointed for children and young persons.[23]

For further discussion of the role of counsel for the child, and the sometimes conflicting obligations to (a) obtain and represent the child’s articulated wishes, (b) represent the child’s best interests as perceived by the attorney, and (c) act as an aid to the court, see Simon Jefferson, The Continuing Confusion[24] and John Caldwell, Counsel for the Child – Old Truths, A New Start?.[25]

For more information on Family Group Conferences, see Family Group Conferences in Child Abuse and Neglect Cases:  Learning from the Experiences of New Zealand.[26]

Sources of Law (In Order of Authority)

Statues

Children, Young Persons, and Their Families Act[27]

[Sec.] 5.  Principles to be applied in exercise of powers conferred by this Act—

d) [C]onsideration should be given to the wishes of the child or young person, so far as those wishes can reasonably be ascertained, and [] those wishes should be given such weight as is appropriate in the circumstances, having regard to the age, maturity, and culture of the child or young person.

e) [E]ndeavours should be made to obtain the support of the child or young person [to the exercise of power under this Act].

[Sec.] 10.  Duty of Court and counsel to explain proceedings—

The barrister or solicitor representing a child, young person, or other person having the care of a child or young person must explain to that person the nature of the proceedings and any orders made by the Court under § 83(1), § 84, or § 283.

[Sec.] 11.  Duty of Court and counsel to encourage and assist child or young person to participate in proceedings—

The barrister or solicitor representing a child, young person, or other person having the care of a child or young person shall encourage the child’s or young person’s participation in proceedings under this Act. 

[Sec.] 22.  Persons entitled to attend family group conference—

Section 22 lists the persons who are entitled to attend a group family conference.  Among these people are

 - the child or young person who is the subject of the conference (unless attendance is not in the child’s or young person’s best interest, or the child or young person would be unable to understand the proceedings); and

 - the child’s or young person’s barrister or solicitor, and

 - the child’s or young person’s lay advocate.

However, the barrister, solicitor, or lay advocate representing the child or young person is not entitled to be present at any family group conference during discussions among the child’s extended family members, unless the extended family requests his or her presence.

[Sec.] 144.  Agreement not to be made without consent of child or young person—

Section 144 requires written consent of a child over the age of 12 years or of a young person before an agreement can be made under § 140 or § 142 of this Act, unless the child is unable, by reason of disability, to understand the nature of the agreement.

A child’s or young person’s wishes shall be ascertained where practicable and given due consideration in concluding the terms of an agreement under § 140 or § 141 or § 142 of this Act.

[Sec.] 159.  Appointment of barrister or solicitor to represent child or young person–

Section 159 requires the Court to appoint a barrister or solicitor to represent a child or young person who is not already represented in proceedings under Part 2 or Part 3A of this Act.  The Court may appoint a barrister or solicitor to represent the child or young person for other purposes also (e.g., other proceedings under this Act or any other enactment).

 [Sec.] 161.  Further provisions relating to barrister or solicitor appointed under section 159 or section 160—

Section 160 states that a barrister or solicitor appointed under § 159

 - shall be served with all documents required to be served on the parties,

 - may call witnesses,

 - may cross-examine witnesses,

 - may request the Court to obtain reports, and

 - may act on a child’s or young person’s behalf concerning matters relating to the care of a child or young person in a residence.

[Sec.] 162.  Payment of barrister or solicitor appointed under section 159 or section 160—

Section 162 provides for

 - the payment of an appointed barrister or solicitor for fees and expenses,

 - taxing by the Registrar of the bill of costs rendered by an appointed barrister or solicitor,

 - procedures to be followed where a barrister or solicitor is dissatisfied with Registrar’s decision as to amount of the bill, and

 - discretion of the Court to order any party to the proceedings to refund the Crown an amount specified by the Court for fees and expenses.

[Sec.] 163.  Appointment of lay advocate—

At any stage of any proceedings under Part 2 or Part 3A of this Act, the Court may appoint a lay advocate to appear in support of a child or young person in those proceedings or for other purposes as the Court may specify, even where the child is represented by a barrister or solicitor.

[Sec.] 164.  Further provisions relating to lay advocate—

Section 164 describes the principle functions of a lay advocate:

 - to make the Court aware of cultural matters relevant to the proceedings, and

 - to represent the interests of the child’s or young person’s whanau, hapu, and iwi.

A lay advocate

 - shall be served with all documents required to be served on the parties,

 - may call witnesses,

 - may cross-examine witnesses,

 - may request the Court to obtain reports,

 - may attend any family group conference concerning the child or young person and make representations on the child’s or young person’s behalf, and

 - may make representations on the child’s or young person’s behalf concerning any matter regarding the care of the child or young person in a residence.

[Sec.] 165.  Payment of lay advocate—

Section 165 provides for

 - the payment of a lay advocate for fees and expenses, and

- discretion of Court to order any party to the proceedings to refund the Crown an amount specified by the Court for fees and expenses.

[Sec.] 166.  Persons entitled to be present at hearing of proceedings in Family Court—

Section 166 lists the persons who may be present during the hearing of any proceedings in Family Court under Part 2 or Part 3A of this Act.  This list includes, but is not limited to,

 - the child or young person,

 - the child’s or young person’s barrister or solicitor, and

 - the child’s or young person’s lay advocate.

[Sec.] 169.  Right to make representations—

Section 169 lists those people who may make representations to the Court in proceedings under Part 2 or Part 3A of this Act(1).  This list includes, but is not limited to,

 - the child or young person,

 - the child’s or young person’s barrister or solicitor, and

 - the child’s or young person’s lay advocate.

[Sec.] 341.  Rights of appeal against decisions of Family Courts—

Section 341 provides the right of appeal to a child or young person subject to proceedings under Act. 

Domestic Violence Act[28]

[Sec.] 81.  Court may appoint lawyer—

Section 81 allows the Court to appoint a lawyer to represent a child in proceedings on or relating to an application for a protection order made on the child’s behalf. 

A lawyer appointed under this section may

 - call witnesses, and

 - cross-examine witnesses.

Section 81 also provides for

 - payment of a lawyer’s fees and expenses,

- taxing of the bill of costs by the Registrar of the Court, and

-  procedures to be followed where a lawyer is dissatisfied with Registrar’s decision as to amount of the bill.

Regulations

Domestic Violence Rules[29]

[Sec.] 35.  Appointment of representative of child—

 - Section 35 (1) describes the requirements for the appointment of a next friend to a child in proceedings under the Domestic Violence Act.  

 - Section 35 (2) describes the requirements for the appointment of a guardian ad litem of the child for purposes of taking proceedings under the Act on the child’s behalf. 

 - Section 35 (3) lists those persons who may apply for an order to appoint a guardian ad litem and states that no appointment may be made while the child is represented by a next friend. 

[Sec.] 37.  Responsibility of guardian ad litem for costs—

A person appointed guardian ad litem is responsible for any costs awarded in the proceeding against the represented person unless the Court or the Registrar orders otherwise.

[Sec.] 38.  Recovery of costs by representative—

A court may order that a representative’s costs be recovered from the represented person. 

[Sec.] 40.  Retirement, removal, or death of representative—

Section 40 describes when a representative may retire or be removed by the Court.     This section also states that when a representative dies, retires, or is removed, no further step may be taken in the proceeding until another representative has been appointed.

Cases

Note:  Although these are not care and protection cases, they still inform the role of counsel for child in the care and protection context.

In the matter of  RSR[30]

           In a case concerning an application to determine the status of a child who had been a ward of the court since 1998, the court discusses the role of counsel for the child under the Guardianship Act 1968.  The court cites clause 5 of the Family Court Practice Note, which sets out the responsibilities of counsel for the child.  Although counsel must respect the wishes the child expresses, counsel “does not receive instructions as such and exercises an independent judgment as to what is in the child’s best interest.”   ¶ 57.  The court explains that “the role of counsel transcends the instructions, the views or wishes, of the child; not in the sense that they are to be ignored or suppressed, but in the sense that they are to be balanced against objective reality.  Counsel is to be equated in one sense with counsel instructed conventionally, and in another with counsel appointed to assist the Court.”  ¶ 59. 

R v H[31]

This case considers the admissibility of evidence of a psychologist and counsel for the child, both appointed by the Family Court under the Guardianship Act 1968.  In its discussion about the role of counsel for the child, the court references clause 5 of the Family Court Practice Note, stating that “it is understood that communication from the child to counsel may be relayed to the Court and made known to the parties.  While akin to a solicitor-client relationship it has special statutory features which necessarily preclude or limit the full application of conventional legal professional privilege.”  ¶ 22.  The court explains that matters of confidence between the child and counsel appointed under the Guardianship Act “should be approached under the balancing provisions of s 35 of the Evidence Amendment Act with recognition given to the fact that the relationship between counsel and child is closely analogous to that of solicitor and client.”  ¶ 23.

Regulations

Practice Note:  Counsel for Child Code of Practice[32]

This Code of Practice for Counsel appointed to represent children in Family Court proceedings discusses the following:  guiding principles, role of counsel for the child, relationship with the child, interviewing the child at school, informing the child, confidentiality, systemic abuse, case management, judicial meeting, relationship with the court, counsel for the child and report writers, role of counsel in negotiation between parties, role of counsel in cases under section 16B Guardianship Act 1968, role of counsel for the child at hearing, and guardianship of the court.  [Note that as from 1 July section 16B of the Guardianship Act is replaced by comparable provisions in the Care of Children Act 2004 No. 86.]

Practice Note:  Counsel for Child, Selection, appointment and other matters[33]

The Practice Note covers the following matters relating to the representation of children in Family Court:  appointment of counsel for the child, review procedures under the Children Young Persons and their Families Act 1989, reports from counsel for the child, the selection of counsel for the child, review of counsel for the child lists, levels of remuneration, and complaints.

Best Practice Guidelines[34]

This code of practice describes the role and operation of Counsel for the Child.  The Best Practice Guidelines discuss the following issues: discretion, guiding principles, role of counsel for the child, relationship with the child, interviewing the child at school, informing the child, confidentiality, systems abuse, case management, judicial meeting, relationships with the parties and their counsel, other professional issues, counsel for the child and specialist report writers, role of counsel in negotiation between the parties, role of counsel in cases under s. 16B Guardianship Act, role of counsel for the child at hearing, and guardianship of the court.

[Note that as from 1 July section 16B of the Guardianship Act is replaced by comparable provisions in the Care of Children Act 2004 No. 86.]

Rules of Professional Conduct for Barristers and Solicitors[35]

The Rules of Professional Conduct is a general code of ethics, which provides guidance for practitioners in the practice of law in New Zealand. 

International Law

Convention on the Rights of the Child (1989), Article 12[36]

1.  States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.  For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Local Contact Information

Simon Jefferson

Partner

Shieff Angland

Third Level, Tower Centre

45 Queen Street

Auckland 1, New Zealand

PO Box 2180, DX CP19036, Auckland

DDI:      (64 9) 336 0859

Fax:       (64 9) 309 3019

E-mail:  simon.jefferson@shieffangland.co.nz

Additional Resources and Links

New Zealand Legislation 

http://www.legislation.govt.nz/

Family Court of New Zealand 

http://www.justice.govt.nz/family/about.html

Child, Youth, and Family Services

http://www.cyf.govt.nz

New Zealand Law Society – Family Law Section 

http://www.familylaw.org.nz

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