THE PRESS MONDAY, JANUARY 25, 1988. Revising law on children

Press, 25 January 1988, Page 20

THE PRESS MONDAY, JANUARY 25, 1988. Revising law on children

Although the final form of the revised Children and Young Persons Bill has not yet emerged from the committee stages of Parliament, it seems probable that some of the emphasis given to the paramountcy of the child’s interest will be diluted in an effort to make the legislation more acceptable to traditional Maori cultural values. The legislation gives the State the authority to remove a child from a situation in which he or she has been or is in danger of being abused; and this makes it one of the most sensitive laws on the statute books.

The extent to which revision will occur to make the bill more culturally acceptable to Maori views is not clear. Section 4 of the present 1974 act is headed “Interests of child or young person paramount —.” The 1983 amendment to the act brought in Section 4A which laid down the principle that every child had the right, unless it was impracticable, to live in the association of a family group and used the Maori term “whanau” as one of the family groups. Section 4 of the proposed legislation, as it was drafted for the first reading in 1986, is headed "Principles to be applied in exercise of powers conferred by this Act —and continues: "(1) Any Court which, or person who exercises any powers conferred by this Act shall treat the welfare of the child or young person as the first and paramount consideration and shall be guided by the following matters —.” A long list follows and it will take a number of Court cases to decide the application of the guidelines, which involve the rights of the Maori sub-tribe, known as the hapu, and the family groups. A Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare, called “Puao-Te-Ata-Tu” (Day Break), summed up the Maori objection to the present legislation as: “The Maori child is not to be viewed in isolation, or even as part of a nuclear family, but as a member of a wider kin group or hapu community that has traditionally exercised responsibility for the child’s care and placement. The technique, in the committee’s opinion, must be to reaffirm the hapu bonds and capitalise on the traditional strengths of the wider group. This needs emphasis. The guiding principle in the current legislation is that the welfare of the child shall be regarded as the first and paramount consideration. There need be no inherent conflict between that and the customary preference for the maintenance of children within the hapu. The current legislation is seen in practice as negating the right of the group to care for its own or to be heard in the proceedings.”

A report of a working party to review the legislation quoted a speech by Mr John Rangihua to the Family Court judges in April, 1987. He argued that alien concepts, encapsulated in Western legal forms, distanced Maori people from their cultural norms and defeated the maintenance of

traditional Maori society. The working party’s report says: “In this regard he noted how the paramountcy accorded to the child, in the Children and Young Persons Act, subsumed the importance attached to the responsibility of the tribal group, through tribal traditions and lore, which took precedence over the view of birth parents. Thus children’s interests could only be determined after having regard for, and giving consideration to, the views and concerns of the child’s whanau and hapu.”

There are clear difficulties in accommodating different cultural values within the one law. Happily, there has been no serious suggestion that there should be one law for the Maori and one for the rest of New Zealand. The legislation is an attempt to accommodate some of the best in Maori traditions with European law. But there is always a danger that the “whanau,” the family group, comes to be seen as idealised, something which is a cure for all Maori family problems.

Like the peoples of many rural communities throughout the world, the Maori people have become town-dwellers in increasing numbers during the last few years, although there may be beginning a move back to traditional areas. One result has been the loss of family connections and the loss of tribal influences. The “whanau” concept would seem most appropriate to small rural communities. The family and tribal connections may be maintained with more determination than in many other communities within New Zealand, but it would seem foolish to institutionalise them in some way. The whole country may end up in believing in a myth. In the end this would do enormous damage to those Maoris with strong family links. Nor should it be believed that every “whanau” is a benign influence — a point that many Maoris will cede privately. At best, the new legislation will retain the right for the State to intervene in tragic circumstances, allow those closest to the child to have a say, and if possible ensure that the child is cared for by someone close to him or her. Too often in the past children have been removed without consultation with those who would be able to help, and sometimes a child has been sent to an institution in a distant part of the country. But the Court and no other body should have the final say in the dreadful circumstances in which a child is removed from the care of parents or guardians. Unhappily, Maoris form a large part of the client group of Social Welfare workers and for this reason attempts are being made to accommodate Maori views. The extended family may have value. The problem is to find a sensible balance. But in some form or other, the principle that the interest of the child should be paramount has to be preserved — even if this offends one of the groups which make up the hotch-potch of New Zealand’s society.