
Laura Barry and her business partner Samantha Brennan gave us an insight into the complex issue, fraught with political issues, of the care of children at risk. Both have been involved in this field for some time and their firm, Tiaki Family Law, has the priorities of care, conserve and protect in disputes involving the care and protection of children.
We all have our views on what we think should happen in such cases but Laura and Samantha actually know what can legally happen and how solutions are found. Laura is pursuing a Masters Degree in Psychology and Samantha has a Masters Degree in English, an LLB, and a toddler.
At issue is who has the rights to care of, contact with and guardianship of children. Normally the simple answer is the parents or parent but there are times when there is no simple answer, such as when a relationship breaks down, or when the child is at risk, whether from violence, neglect or issues such as vaccination or medical treatment. Laura and Samantha took us through the procedures. If a child is percieved to be at risk anyone can apply to the legal system, a parent, grandparent or, with the leave of a judge, another relative. If the child is at immediate risk and a need is urgent an "Urgent Application" can be made to the Family Court. Whereas non-urgent applications can take a while to be heard there is a roster of judges from throughout New Zealand to hear and rule on "Urgent" cases. Sadly, 80% of applications are "Urgent", often involving family violence, breach of a protection order or drug use.
When a case is heard the child, or children, will be given their own lawyer. Various courses are available, including a "Family Disputes Resolution", removal of the child, or a separation order. If the police are involved the case is immediately classed as urgent but neither the police, nor Oranga Tamariki nor anyone else uplift a child without a judge's order and the child's safety being at risk.
If Tiaki is involved at the beginning they will determine if the case is urgent, and if not whether there is anything they can do before getting to the Family Court stage. Tiaki tries first to reach a collaborative approach. This could involve mediation or, for instance, advice on drug rehabilitation. Both would be preferable to the formal and sometimes confrontational and lengthy Family Court procedures.
If the case goes before the Family Court the child's lawyer must consider the views of the child, the welfare of the child, reporting requirements and a community court referral. In theory a Family Group Conference (FGC) could be ordered and should be held within 28 days but in practice the wait for a conference to be arranged can be months. At the FGC attendance is by invitation only and can include parents, social worker(s) and whanau and on occasions a lawyer. There can be support people but only at the judge's discretion. There will be a discussion of concerns, a plan with specific goals and tasks and a written record. Usually there will be an opportunity for the child to be returned to the parent(s). There can be different court appearances: a Direction Conference hearing brief submissions only could take an hour, a Settlement Conference could take three hours or a full conference with cross-examination of witnesses could take far longer. Unfortunately the whole system is vastly under-resourced and over worked. There are now three times as many "Urgent" applications to the Family Court as there were fifteen years ago. Referrals are automatic if the police are called and will probably be heard within three days but children cannot be removed without a judge's order. Thank you Laura and Samantha for navigating us through the intricacies of the legal procedures.