New Zealand Law Review - Published Issues - 2013 - Issue 3

Issue 3

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Table of Contents

  • Preface
    By Elaine Sutherland, Alison Cleland

  • Listening to the Voice of the Child: The Evolution of Participation Rights
    By Elaine Sutherland, Alison Cleland

    Given that art 12 is one of the fundamental principles of the United Nations Convention on the Rights of the Child, it is surprising to find that there was no mention of the voice of the child in the very first draft of the Convention. This article examines the genesis of art 12 and its evolution during the drafting process. The content of participation rights, as they have come to be known, is explored and the concept is set in its wider Convention and international contexts, before some key features of implementation and progress to date are highlighted.

  • Listening to the Child's Objection
    By Trynie Boezaart

    A child's right to express his or her opinion freely and to participate in matters concerning him or her is firmly entrenched in art 12 of the United Nations Convention on the Rights of the Child. The same article demands that the child's view be given serious consideration. The Hague Convention on the Civil Aspects of International Child Abduction on the other hand merely provides a small window of opportunity to hear a child's voice. If the child's voice is heard, it is weighed against the assumption that prompt return is in the child's best interests.

  • It is My Adoption, But is Anyone Listening to Me?
    By Sandra Ferreira

    In South Africa, children have the right to family care or parental care, or to appropriate alternative care when removed from the family environment, which may be achieved through adoption. Children also have the right to participate in matters affecting their well-being, and this article considers child participation in statutory adoption proceedings in South Africa. The conclusion that is arrived at is that the importance of the involvement of children in adoption is recognised, but that more can be done in this regard. Suggestions to increase child participation in the statutory adoption process are also made.

  • How Can We Best Listen to Children in Family Law Proceedings?
    By Michelle Fernando

    This article critiques how children's views are commonly heard in adversarial family law proceedings, focusing on practices in New Zealand, Australia, Canada and the United Kingdom. Children's views play an important role in determining their best interests. How those views are heard impacts on the quality of evidence available to the court and on children's experiences.

    Benefits and limitations of expert reports, direct and best interests representation by lawyers and judicial meetings with children are discussed. These are viewed in the context of children's right to be heard and literature on children's dissatisfaction with their participation experiences. It is argued that New Zealand's "team" approach, where a child's views are heard through a variety of methods, is desirable. However, we must ensure not to expose children to proceedings in ways that may be contrary to their best interests.

  • Children's Lawyers: "Seeing" Children
    By Nicola Ross

    Lawyers' attitudes to children influence the extent to which they offer children opportunities to participate in legal decisions. This article offers empirical insights derived from research undertaken with children's lawyers who practise in New South Wales in family law, child protection and criminal proceedings. The research reveals that lawyers give different emphases to their relationships with children, and there are variations in practice within and between the different areas of law. There is currently no shared understanding of the rationale for children's participation. The author proposes practical strategies aimed at resourcing, training and selecting children's lawyers so that they facilitate children's participation more effectively.

  • Breathing Life Into Children's Participation: Empirical Observations of Lawyer-Child Relations in Child Protection Proceedings
    By Briony Horsfall

    This article uses data from ethnographic research conducted with lawyers and children to describe how power relations can be utilised by lawyers to scaffold children's participation in meaningful and positive ways. The research identified that lawyers' practices included engaging in democratic communication with children, supporting their legal education, building a shared understanding about child protection involvement and ensuring flexible opportunities for participation were available. Constraints identified as interfering with lawyer-child relations included discontinuity of legal representation, the court environment and resources, and fragmentation of the child protection legal system. In light of this research the author argues that recent legislative changes in Victoria, Australia, affecting legal representation are regressive.

  • Judicial Meetings with Children: Documenting Practice Within the New Zealand Family Court
    By Nicola Taylor, John Caldwell

    The appropriateness of judges conducting interviews with children is a topic of debate in many Western jurisdictions. New Zealand's Family Court is recognised internationally for its world-leading innovations in child-centred practice and judicial meetings have been a central means of giving children an opportunity to express their views directly to the decision-maker, particularly since the Care of Children Act 2004 took effect. This article reviews international empirical research evidence on judicial meetings with children and reports on key findings from a recent study aimed at documenting the current practice of New Zealand Family Court judges. The findings confirm the trend of increasingly positive attitudes towards, and greater use of, judicial interviewing in this jurisdiction.

  • Judicial Interviews with Children: Attitudes and Practices of Children's Lawyers in Canada
    By Rachel Birnbaum, Nicholas Bala, Lorne Bertrand

    Children's lawyers in two Canadian provinces with different policies about the role of children's counsel in family cases were surveyed to explore and compare their experiences and attitudes about their role as counsel and about children meeting with a judge. The majority of lawyers acted as gatekeeepers, often preventing children from having a full range of choices about how to communicate with the court. Lawyers who adopt a traditional advocacy role as opposed to viewing themselves as best interest guardians are somewhat more likely to give their child clients an opportunity to meet the judge. In order to assist the decision-makers who are often making life-altering decisions about children and promote the rights of children, there should be more training and education of justice system professionals on how to support children who want this opportunity to meet with a judge.

  • Children's and Young People's Participation in Legal Proceedings in Aotearoa New Zealand: Significant Challenges Lie Ahead
    By Alison Cleland

    The purpose of this article is to analyse the key themes that have emerged from the foregoing articles in this issue, and to consider the significance of these themes for law reform, policy and practice in Aotearoa New Zealand relating to the participation of children and young people in legal proceedings affecting them. The article argues that in respect of each of the four themes that can be discerned from the foregoing articles, the response in Aotearoa New Zealand has been inadequate. It is suggested that the reason for the inadequacy of the response may be a failure by the legal system to acknowledge children's citizenship and to accord them participation rights as fully valued members of society.

     

  • From Foundations to Finish? The Continuing Duty Doctrine and Limitations
    By Samuel Beswick

    In Johnson v Watson [2003] 1 NZLR 626 the Court of Appeal commented that builders may owe a continuing duty over the course of the construction period to remedy defects. By and large, the courts have been cautious to embrace this "continuing duty" theory and have shown a reluctance to define its parameters. Since Johnson v Watson, a line of cases have held that a continuing duty on designers and contractors is "tenable" and "arguable" and therefore not a field ripe for strike-out. Yet there has been little analysis of what it means to owe a "continuing duty", when the concept arises, and the consequences for statutory limitation periods. This article traverses the discussion to date to elicit the common principles of the theory.

     

  • Insider Conduct Regulation in New Zealand: Exploring the Enforcement Deficit
    By Gordon Walker, Andrew Simpson

    Laws prohibiting insider conduct have now been enacted by most countries with developed or developing securities markets, yet the vigour with which those laws are enforced varies greatly. After experimentation with other models, New Zealand's insider conduct laws have come to closely resemble Australia's, where more than 26 prosecutions have been brought since 2008. In New Zealand, however, no insider conduct prosecutions have been brought since 2008, and no convictions were secured prior to then. This article examines why New Zealand manifests such a marked enforcement deficit relative to Australia.

     

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