Court/Judicial body: The High Court of New Zealand
Date: 12 May 2006 CRC
Provisions: Article 9: Separation from parents Article 12: The child’s opinion
Domestic provisions: Section 4, Care of Children Act 2004: the welfare and best interests of the child must be the first and paramount consideration. Section 6, Care of Children Act 2004: a child must be given reasonable opportunity to express his or her views on matters affecting the child and any views the child expresses must be taken into account.
Background: C, the father of a five year old girl, was appealing a decision from the Family Court, granting custody of the child to his niece – S – who had cared for the child for over four years, while only allowing him contact at the weekends. In his appeal to the High Court, C argued that the family judge had failed to ascertain and take into account the views of the child in accordance with Section 6 of the Care of Children Act 2004 and to place substantial weight on evidence given by Ms Poutawa, the child’s kindergarten teacher.
Issue and resolution: Child’s opinion in custody proceedings. The High Court rejected the first argument that the child’s views were not taken into account as it agreed with the Family Court’s evaluation that the child was too young to express a view. However, the second argument was accepted and the High Court agreed that more weight should have been accorded to evidence given by Ms Poutawa, who was an impartial witness who knew the child well.
Court reasoning: The legal requirement is to provide reasonable opportunities to a child to express views on matters affecting him or her. The Court has a discretion to determine what is reasonable and appropriate in the circumstances of each individual case and having regard to factors such as the age and other characteristics of the child. Care should be taken however not to subject a child to burdensome or repetitive questioning or processes which may have adverse impacts on the child. Where a child expresses views, they may be conveyed to the Court either directly or through a representative (usually the lawyer appointed by the court to act for the child). Any views expressed “must be taken into account”. The expression “take into account” is stronger than the common statutory formula to “have regard to” but it does not go so far as to oblige the decision maker to act in accordance with any view expressed by the child. That would run counter to the Court’s wider obligation to assess what the child’s welfare and best interests require. It is implicit that the Court retains a discretion to give such weight to the child’s views as it considers appropriate in the circumstances of the case. The legislature cannot have intended that a Court should not have regard to those factors along with such other considerations as may be relevant to an assessment of the weight to be given to the child’s views. In the present case, the girl was too young to express her views and there was no reasonable prospect that any views obtained could have affected the outcome of the case. However, Ms Poutawa knew the child very well and could be regarded as an independent witness. The child’s views were therefore indirectly before the Court through the evidence of Ms Poutawa. There were no legal grounds to challenge or interfere with the trial judge’s assessment of the credibility and reliability of Ms Poutawa as a witness.
Excerpt citing CRC and other relevant human rights The recognition that children have rights has been formalised in international instruments, most notably the United Nations Convention on the Rights of the Child ratified by New Zealand in 1993. Of particular relevance are Articles 9 and 12. The Convention proceeds on the assumption common to all international instruments concerned with human rights, that everyone is end to be treated with dignity and respect. Children are not to be treated as any less worthy of respect than adults and, whenever capable of forming a view, a child has the right freely to express it. In judicial and administrative proceedings affecting the child, he or she is to be given the opportunity to be heard, either directly or through a representative. Under the Convention, the child’s views are to be given due weight in accordance with the age and maturity of the child. In terms of the Convention, the opportunity to be heard in judicial or administrative proceedings is to be accorded in a manner consistent with the procedural rules of national law. In New Zealand, Section 23(2) of the Guardianship Act had anticipated the Convention in some respects providing: In any proceedings under subsection (1) of this section the Court shall ascertain the wishes of the child, if the child is able to express them, and shall, subject to Section 19(4) or Section 19A(2) of this Act, take account of them to such extent as the Court thinks fit, having regard to the age and maturity of the child. The 2005 Act gives effect to the Convention in Section 6 (which requires reasonable opportunities to be given for a child to express views on matters affecting the child) and by imposing in Section 7, mandatory obligations on a lawyer appointed to act for the child which are designed to facilitate the process.
CRIN comments: CRIN believes this decision is consistent with the CRC. The Court considered whether the child is capable of forming a view on the basis of the facts presented by the case in hand, as required by Article 12.
Citation: C v S [P Orders]  NZFLR 745
Link to full judgement: http://www.nzlii.org/nz/cases/NZHC/2006/495.pdf