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Law Society recommends fundamental rewrite of child protection legislation

22 March 2017

The New Zealand Law Society says proposed legislation introducing a child-centred care and protection system needs a complete rewrite if it is to achieve the objective of protecting vulnerable children and young people.

The Law Society has presented its submission on the Children, Young Persons, and Their Families (Oranga Tamariki) Bill to Parliament’s Social Services select committee.

The bill makes a fundamental philosophical change from “minimum intervention” by the state in the lives of vulnerable children and young people to one of “early intervention”.

“This is laudable but is a fundamental philosophical shift and requires a complete redrafting of the Children, Young Persons and Their Families Act 1989”, Law Society spokesperson, retired Family Court Judge John Adams, told the committee.

“As currently drafted, the bill makes many complex amendments to the 1989 Act, and these will create real difficulties in practice,” he says.

The Law Society has pointed to a range of concerns and says that if the bill is to proceed it should be significantly redrafted.

“The bill contains many new terms which are not clearly defined and which are inconsistent and unclear. In particular, the central principle of the child’s ‘welfare and best interests’ is well-established in legislation and caselaw, and changing to a new term, ‘well-being’, is unnecessary and unjustified.

"The purposes of the legislation, and the principles to be applied in exercising powers, are critically important but the drafting is complex and confusing.

“The purposes of legislation should be clear, concise and straight-forward. Instead, the bill introduces 12 separate purposes that are a confused mixture of factors that are not clearly worded, lack coherence and are repetitive,” Mr Adams says.

The Law Society supports the objective of improved information-sharing to protect vulnerable children and young people but has serious reservations about the proposed framework in the bill.

“The information-sharing provisions are complex, inconsistent and unlikely to be workable in practice, and should be substantially redrafted,” Mr Adams says.

The Law Society welcomes the extension of the youth justice jurisdiction to include 17-year-olds, Law Society spokesperson Vicki Thorpe told the committee.

“This recognises adolescent neurological development and is consistent with New Zealand’s commitments under the UN convention on the rights of the child. Managing 17-year-olds in the youth justice jurisdiction will have significant benefits both for young people and society,” Ms Thorpe says.

However, the Law Society opposes provisions in the Bill that treat some 17-year-olds differently, particularly the automatic transfer of proceedings where the young person is charged with serious offending.

“There is no justification for excluding those 17-year-olds from the youth justice jurisdiction and treating them as adults, nor is there any need to do so. Legislation is already in place and works well to identify serious recidivist youth offenders and ensure they are dealt with in the most appropriate jurisdiction,” Ms Thorpe says.

Retired Family Court Judge John Adams was interviewed on RNZ's Nine to Noon programme about why the 1989 Act needs to be rewritten. He spoke with Kathryn Ryan in depth.

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Last updated on the 23rd March 2017