It’s my life, so do I get a say? : An analysis of whether Aotearoa New Zealand is listening to children’s views in care-of-children proceedings as is required by the United Nations Convention on the Rights of the Child, and recommendations for improvement

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Theses / Dissertations
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Master of Laws
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Wallace, Katy

Thirty years ago, Aotearoa New Zealand ratified the United Nations Convention on the Rights of the Child (the UNCRC). Article 12 of the UNCRC grants all children, “who [are] capable of forming [their] own views the right to express those views freely in all matters affecting [them, their] views … being given due weight in accordance with [their] age and maturity”. The Article specifies that children must be “provided the opportunity to be heard in any judicial and administrative proceedings” that affect them “either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” In effect, this Article recognises that children are citizens, who have a right to have their views heard when decisions are being made that will affect them. This thesis examines New Zealand’s adherence to Article 12, in care-of-children proceedings.

The decisions made in care-of-children proceedings have the power to alter and determine the course of a child’s life in many ways, and so it is imperative that children fully receive their Article 12 right to express their views in regard to these decisions. This thesis demonstrates that, while the Care of Children Act does provide avenues for children to express their views on care and guardianship matters affecting them, these avenues do not apply to all care-of-children proceedings. In addition, the way this legislation is currently practiced does not insure all capable children receive the right to express their views freely, as Article 12 intended. This thesis will set out a number of recommended changes, both to existing legislation and the way this area of law is practised, that will ensure a child’s Article 12 rights to express their views and be heard in these important decisions.

Historically, under common law, a father had a “superior right” to his children, which included control over how they were raised. This meant a court need not consider a child’s welfare, much less their views, when determining a matter about a child. Fathers’ rights over their children started to change in the 19th century, with the 20th century witnessing a dramatic change to the way children were viewed and treated, including by the law. Today the benefits of giving children the opportunity to express their views and participate, when decisions about them are being made, are well recognised. Not only is it good for their development, increasing their self-esteem and competence, but when given the opportunity to express their views, children often bring new insights to their situations. The outcomes for children are likely to be better when their views have been heard and they are likely to adjust quicker and cope better with changes to the family structure, if their views have been heard regarding those changes.

The UNCRC can be considered the turning point in the recognition of many children’s rights, including the recognition that children should be accorded dignity and respect with regards to their views. Listening to children’s views, when decisions are being made that will affect them, recognises that children are not merely objects belonging to their parents, but are people with their own insights and views that should be heard and taken seriously.

The UNCRC gives those countries that have ratified this Convention, including New Zealand, impetus to grant children this right, as well as the other rights it contains. This thesis examines whether New Zealand, three decades after ratifying the UNCRC, does grant all children their Article 12 right to express their views, and be heard, when decisions that are ultimately about their care and guardianship are being determined. It will also consider how well, if at all, the current legislation and practices allow Māori children to express their views in accordance with tikanga.

Article 12 set down no blueprint as to how a child’s right to express their views should be applied in practice, and as such different jurisdictions have adopted a variety of modes of participation for children. This thesis will also explore how four other jurisdictions, Australia, Canada, Israel, and Scotland, hear from children when care and guardianship decisions are being made about them, and if any of those modes of participation could potentially be implemented in New Zealand.

Recommendations will then be made for how current New Zealand legislation and practices can be improved, to ensure all New Zealand children, who are capable of forming their own views, are indeed provided the opportunity to express those views freely, and be heard, when decisions about their care and guardianship are being determined. While improvements are needed to meet the requirements of the UNCRC, the ultimate reason they are needed is to benefit all children, and their families, who are involved in care-of-children proceedings.

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