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Former Family Court judge: ‘Compliance isn’t optional’

While uplift orders are serious interventions for families, forcible removal is better for children in the long run argues John Adams

Solomon’s reputation for wise judging seems most unfair. Faced with two women, each claiming the child as their own, Solomon proposed the child be cut in half with a sword.

In my 20 years as a Family Court judge, I never considered such an order.

Sure, I sometimes entertained passing thoughts about warring parents - but New Zealand judges aren’t issued with swords.

Solomon made two orders. His first was to cut the child in two. His wisdom lay in thereby provoking the loving parent to forego her claim. His second order was to award the child to that woman. The outcome seems right.

But what if the King’s swordsman had stepped forward and carried out the first order? Not an easy task for that swordsman. And we wouldn’t be speaking about the wisdom of Solomon if that had happened.

It’s no surprise that this story concerns a dispute over a child. These cases produce the most inflamed class of litigation. They daily test the ability of courts to regulate child care.

The most difficult cases tend to involve parties with poor self-regulation, often self-centred, wilful, even dishonest.

"This tidy system breaks down where a parent acts unlawfully and contrary to the interests of the child."

In New Zealand, the prime guide for the court is to promote the welfare and best interests of the child. Our Care of Children Act creates rights and obligations for parents. Mostly, both parents have equal legal rights. When parents separate, most people agree on the child arrangements. Sometimes they get help to do that through counselling or Family Dispute Resolution.

Sometimes there is no formal agreement but a pattern of child care can be recognised. Oral or written agreements can be made by parents. If they cannot agree, either can apply to court for a judge to rule on the matter.

This tidy system breaks down where a parent acts unlawfully and contrary to the interests of the child. Now here is where it gets tricky because not every “unlawful” act is contrary to the interests of the child. For example, let’s say a court order made a year ago requires a 6-year-old to be returned to mother after a day’s outing with father, but father sees the child is covered in bruises and the child says someone in mother’s house is beating him.

Absent any other relevant history, most people would approve father retaining the child for a couple of days while the matter is checked out, and to apply urgently for a court order to regularise the situation.

Apart from such emergencies, mostly a child’s interests are met by parents complying with court orders. But consider where a court order was made in favour of father two years ago, but the child has actually been living with mother for the past year by tacit agreement. Father learns that mother has a new boyfriend and, on that irrelevant basis, withholds the child, purporting to rely on the order.

Again, most people would recognise that the proper starting point should be the tacit agreement in operation over the past year.

"Just as Solomon could call on his swordsman, the Family Court can issue a warrant to uplift a child."

Court orders are intended to settle disputes. Mostly, they do. Parties comply with the orders or drift into new arrangements that work. But there are frequent cases where a party fails to comply with an order that is intended to be observed.

Sometimes this happens immediately after the order is made. Sometimes disobedience arises periodically in a case that has a history of flaring up. Sometimes disobedience occurs in the course of a case awaiting trial or a case going on appeal.

Motives for disobedience can be complex. Litigation can be a means of keeping contact with a former partner, or of hurting someone who has hurt you. When you listen to these parties, their hurts are often evident.

Courts, including Family Courts, are about governance and complying with the law. Compliance with orders is not optional. Parties are expected to comply. If not, the law provides sanctions.

Just as Solomon could call on his swordsman, the Family Court can, on application, issue a warrant for a social worker or Police Officer to uplift a child (by force if necessary) and deliver the child to the person lawfully entitled.

From the financial year beginning in 2014, applications for warrants to enforce day to day care or contact orders increased markedly. For the two previous years there were just over 400 applications for warrants each year. From the 2014/15 year they rose to over 600 each year, a rise of 50%.

On average that amounts to more than 12 applications for warrants each week, more than two each court sitting day.

Has the rate of disobedience rocketed or is there another reason for this statistic? I do not know the answer.

My main purpose here is to provide background about the law and court processes from my perspective as a former judge. I think it’s unlikely that there has been a sudden rise in non-compliance.

My hunch is that the statistic has risen as a consequence of the procedural changes that were imposed around 2014. These changes required parties to go to FDR (Family Dispute Resolution) before filing an application. They restricted the circumstances in which a party could be represented by a lawyer in court.

Exceptions were observed when a without notice application was filed. In other words, where the situation was urgent, the matter could get straight into court, and the party could have legal representation.

You can imagine how the choices stacked up. Although some cases can endure a leisurely path, others cannot. Where a parent is shut out from their child, or the child’s welfare seem in imminent peril, urgent applications without notice are made.

"A properly responsive judicial system needs to enable urgent cases to be aired."

Unsurprisingly, the volume of without notice applications increased coincidentally with these changes.

Another thing that changed around 2014 was the removal of the court’s power to order cases to go on reduced notice. Typically, an application on notice is filed, then served on the other party who has, say 21 days to respond.

Previously, where matters were not urgent enough to be dealt with without notice to the other party, but nevertheless pressing, the court could order reduced notice. So a case could proceed on say 3 days, or 7 days, notice.

Presumably the change was intended to restrict the flow of work into two tracks – the regular slower track, or the urgent without notice track.

In my view, a properly responsive judicial system needs to enable urgent cases to be aired. First, there are those cases that require immediate response (the swordsman on standby). Secondly there are those where both parties should be heard, but for a limited time, in order to give the judge a more balanced narrative upon which to make an interim order.

Lastly, the cases which can await a full hearing.

Courts management likes to keep work tidy. During my time, staff were incentivised (that means rewarded) for keeping the docket full on the assumption that that meant judges would be kept fully occupied.

Regrettably, that doesn’t cater for the predictable every-week need for urgent time to hear cases where a parent is acting unfairly or unlawfully.

"It is a serious intervention in a child’s life, let alone the parent’s, to issue a warrant."

I have a hunch that the increased volume of applications for warrants is driven in part by reduced options for litigants and in conjunction with a litigant-driven view that their application is urgent.

Let me address the process of considering applications without notice for a warrant.

Firstly, although it seems an unhappy thing that a child be forcibly uplifted by a social worker or police officer, the warrant is a necessary part of the law’s armoury. Otherwise the expectation that orders be complied with would be lost. A warrant is only issued where a judge is satisfied that it is appropriate. Sometimes it is where a person has deliberately disobeyed an order; other situations are where the judge has imposed a new order and thinks a warrant is necessary to ensure the order is effective.

In my experience, it is a serious intervention in a child’s life, let alone the parent’s, to issue a warrant. These are not routine orders, despite the volume of applications.

A healthy family structure involves two parents who behave like adults. If they cannot agree, they should accept the decision of the judge. The judge is like a parent to the parents.

A parent who refuses to comply, prioritises their desire above the lawful process. Parents who do this can be extremely plausible, convincing others that they know best. “The child doesn’t want to go.” “The judge didn’t understand.” “I know what is best for my child.”

The aggrieved parent may produce letters written by the child, often in adult language; they may record distressed wailing by the child; they may video the child being uplifted.

But the inescapable subtext is that they prioritise their desire above the order of the court. In general, the consequence is that the child is at risk of losing lawful structure.

"The force involved in a warrant is systemically necessary and better for the child in the long run."

Stability is best secured where a parent requires their child to comply with an order, even if neither of them like doing so. The force involved in a warrant is systemically necessary (because otherwise there is no incentive to comply) and better for the child in the long run.

Where a warrant is issued on a without notice application it will usually be against a background of non-compliance or defiance by the respondent parent, or where the respondent parent is unilaterally acting contrary to a settled arrangement. A typical example is where a parent retains children after holiday contact, enrolling them at a new school.

Unless there is a genuine emergency, the usual rule is to revert to the prior arrangement while the court investigates what should happen.

Courts are reliant on applicants telling the truth, providing balanced context, and informing the court of any blemishes on their own side. This does not always happen. But judges are aware of those risks and assess applications with that possibility in mind.

Solomon had the advantage of dealing with only one parent. One of the women was not the true mother – or didn’t act like one. That tale shows a parent who won by placing her child’s interest above her own.

Most Family Court cases involve two parents (or parties) engaged in ongoing warfare. The warrant introduces the swordsman into the narrative to retrieve a lawful situation while the court goes on to examine what should next happen.

Like Solomon’s case, it’s often a two-stage process. Firstly, come to the heel of law; then debate whether the arrangement needs change long-term.

Although most overlook the first phase of the story, where parents are scrapping without proper regard for the child’s stability, there is wisdom in dealing firmly at that stage, something that Solomon understood: subject always to what is congruent with the welfare and best interests of the child long-term.


* See Newsroom's investigation here
* Read Case 1: Snatched from school
* Read Case 2: Waking up to cops in the kitchen
* Read Case 3: Pried from home with a crowbar
* Read: The legislation behind uplifting children

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