Ministry of Justice accused of burying report saying children at risk in judicial system

Family violence experts say the Ministry of Justice buried a report that says children are at risk in the judicial system and recommends sweeping changes.

The report was completed in 2022 but never publicly released, even though officials warned that not releasing it looked like it was being hidden.

The report - A Review of Children's Participation in the Family Justice System - criticised lawyers acting as the main voice for child clients in custody disputes.

It recommended trained child consultants be their primary representative because "the practice of lawyers in the role is highly subjective and at times dangerous".

The report said children's needs were being overlooked despite legislation aimed at placing their well-being at the heart of the family justice system.

Deborah Mackenzie from the anti-violence group the Backbone Collective said she repeatedly asked for the report.

"I definitely think that ministry officials effectively buried the report. The only reason this important report has seen the light of day is because Backbone made an Official Information Act request for it."

She said it was still hard to find the full report on the ministry's website.

"They knew that there was lots of interest in the findings, they even said that in the briefing to the minister at the time. So why? Why did they behave this way? That's our question. Why would they miss an opportunity to help so many thousands of children to be safer?"

Mackenzie said the report was an important stocktake and made important recommendations for change.

"The report rightly points out that the way the Family Court responds to children, particularly those who experience family violence, puts them at further risk," she said.

"That risk is because there are no experts currently able to provide risk and safety information to the court to help and form safe decision making."

The ministry commissioned the report in 2021, a stocktake required by an independent panel in response to legislation that required children and young people to be provided with opportunities to participate in decision-making which affects them.

Parts of the report were released to some stakeholders, including some in the judiciary, in 2022.

Ministry of Justice group manager of policy Sam Kunowski said it was not appropriate to release the full report at the time.

"The ministry subsequently undertook an initial review of the recommendations in the report. Many of the report's recommendations would require new funding or legislative change, and would need to be balanced against other government priorities," he said.

"It was not appropriate to make the report publicly available while this review was undertaken, and further work considered."

RNZ shared the report with family law expert and University of Auckland professor Mark Henaghan, who said it was extremely thorough and should have been released.

"I'm deeply disturbed because I think the report gives a number of really important and really good supports for children's participation because as pointed out by many of the examples it's pretty rough and ready at the moment."

These examples included lawyers surprising their child clients at school to take their views, asking a child why they hated their mother so much, telling a child their parent was "stupid" for refusing to settle, and warning children they would be visited by a social worker or a police officer if they did not visit a parent.

Henaghan said there were glaring gaps in the judicial system for children's wellbeing and safety.

"The law has been amended that basically children's participation is important but there's been no structures or anything put around it. I think the recommendations are outstanding."

The report highlighted the risks for children exposed to domestic violence.

"There is an increased risk of harm to children when their participation places them further in the middle of the conflict, they feel like they are carrying the burden of decision making and when family violence is prevalent," it said.

"Specific consideration must be given to how children exposed or subjected to family violence participate to ensure their safety. Overall, there needs to be an awareness of the need for responsive participation processes that enable safe and properly supported participation for all children."

Kunowski said guidelines for lawyers working with children have been updated and those working in family dispute resolution have implemented child-inclusive practices in their processes.

He said the ministry has funded training for professionals involved in family dispute resolution, a process most people must go through before a case reaches the Family Court.

The ministry also pointed out there are now eight child specialists nationally who liaise with those working alongside children in family dispute resolution - a different role to the child consultants recommended in the report.

Women's Refuge principal policy adviser Natalie Thorburn said children should have a professional whose sole role is to engage with them.

"Lawyers aren't specialists in children. Their scope of work is very different to the scope of work for a professional who's purpose is to work with children so I don't think it's a good fit. I don't think it engenders children's comfort to speak, it certainly doesn't mean that they can reliably interpret what children say."

Thorburn said it was hard for a court to make safe decisions around a child's care without comprehensive information from the child's perspective.

"It should never be acceptable to put children at risk because the abusing parent feels they have a right to the child," she said.

"Most advocates working in the field of domestic violence have waited to see meaningful reform in the Family Court that actually gives rights to safer outcome and so far, we haven't really seen it."

The report also recommended all children entering the family judicial system be screened for family violence and have access to counselling.

Mackenzie said the report's recommendations have not been acted on and she wants the Ministry of Justice to fund a pilot for child consultants in the Family Court.

"They used excuses like not having any money or having other priorities to get out of doing anything practical."

She said the report should have been publicly released in full, rather than softly via an Official Information Act request.

"Victim survivors and people working and the family and sexual violence sector really, really needed this report to be in the public arena."

Timeline of events

• 2018 The government appointed an independent panel to review how the 2014 changes to the Family Court have affected the family justice system - the recommendations included legislative change and undertaking a stocktake on best practice models for children's participation.
• 2021 The Family Court (Supporting Children in Court) Legislation Act 2021 was passed - requiring children and young people be provided with opportunities to participate in decision-making which affects them.
• 2021 The Ministry of Justice commissioned Dr Deborah Inder to do the stocktake report.
• May, 2022 The ministry received the report, Review of Children's Participation in the Family Justice System of Aotearoa New Zealand.
• November, 2022 Officials discussed what to do with the report, warning that not releasing it in full may look like it was being hidden.
• August, 2023 The Supporting Children in Court Act came into force.
• 2024 Backbone Collective received report under OIA.

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