Law Commission’s report preliminary paper no 54, New Issues in Legal Parenthood
The Executive asked the Children’s Issues Standing Committee to prepare draft submissions in relation to this Law Commission report. A lot of work was done by the Standing Committee with input from the Women’s Consultative Group, Maori Consultative Group and the NZLS Biological and Medical Issues Committee. Thank you to all involved and I recommend everybody read them.

K v K
This very important decision has just been delivered by Justices Heath and Venning of the Auckland High Court, on 11 June 2004. The file was being case managed by the Hon Justice Keane who directed that a number of organisations be given leave to be heard in relation to the matter. The organisations were the New Zealand Psychological Society, the New Zealand Psychologists Board, Union of Fathers Litigation Ltd, Relationship Services NZ, Commissioner for Children and the Family Law Section of the New Zealand Law Society. Mr C M Earl, barrister of Hamilton was instructed by the Family Law Section and did an excellent job. I thank him sincerely for all the hard work that he put in.

The significant issue before the court arose from the father’s application to have the psychologist, who was to be commissioned to undertake the section 29A report, videotape the interviews of the three children. He argued that this could be required by the court and would enable him to check the veracity of the children’s wishes. Their Honours set out the issues for determination by the court as follows:

(a) Is the discipline of psychology a sufficiently developed science to justify reliance upon opinions expressed by report writers as an objective assessment of family dynamics, for both historical and predictive purposes?

(b) Do some requests for reports under section 29A amount to an impermissible delegation of judicial functions to a psychologist?

(c) To what extent must the court ensure that questions asked of a psychologist are strictly within his or her expertise and that answers are admissible as opinion evidence?

(d) Is it necessary, to ensure public confidence in the Family Court system, for the court to require psychologists to videotape all interviews with children for reports under section 29A?

(e) Is section 29A a tool enabling the judiciary to obtain expert assistance, as opposed to an evidence gathering mechanism?

The court then carefully analysed section 29A of the Guardianship Act 1968 and looked at a number of preceding decisions and compared that section to section 178 of the Children Young Person and Their Families Act. The court looked at the role of experts in the court and also looked at the practice notes issued by the court in relation to psychologists and counsel for the child. The court summarised its conclusions in paragraph [92] as follows:

(a) Section 29A of the Act enables the Family Court to obtain expert assistance from a medical practitioner, psychiatrist or psychologist on any issue on which a report is “necessary” for the disposition of the guardianship, custody or access issue before the court. A report can only be sought from a qualified person: ie an expert.

(b) The court can only “request” a report; it cannot “order” one. There is, therefore, no jurisdiction for the court to impose terms as to the manner in which the report ought to be completed.

(c) The preferable course is for the court to ensure questions are drafted with particularity and are capable of being answered through the provision of expert opinion. The brief ought to set out relevant facts and to provide questions for the report writer to answer.

(d) The report writer ought not to stray beyond the boundaries of the questions asked. Neither should the court ask “catch all” questions which, in effect, ask the report writer to provide such further information as he or she thinks fit. Recommendations should not be made on the ultimate issue for the court’s consideration. However, it is appropriate and permissible for the report writer to draw to the attention of the court any other issue arising during the course of his or her investigation. No comment should be given on such matters. When the judge considers the fresh issue he or she can determine whether to issue a separate request to deal with any additional issues raised.

(e) It is inappropriate for the court to use section 29A solely as a method of obtaining the wishes of the children involved. The wishes of the children should be ascertained by counsel for the children or through an interview of the children by the judge.

(f) Good practice would see report writers complying with the Code prescribed in Schedule 4 to the High Court Rules 1985 to ensure that impartiality and independence are preserved.

The Executive Committee considered this decision on Friday 18 June at its face to face meeting in Wellington. It was resolved as follows:

• We will refer the judgment, and details of the issues it raises to the CLE Standing Committee and ask CLE to consider a travelling roadshow to cover the implications of this decision.
  
• There will be an article written for The Family Advocate setting out the decision in more detail and making recommendations to members as to how to handle the implications. The implications in summary are:

- Counsel for the child will have to be very careful when preparing briefs to psychologists to ensure that they do not infringe the directions made in the decision. Counsel for the child must avoid asking psychologists to ascertain the child’s wishes but should still be able to comment on them.

- Counsel for the child will have a greater role with respect to ascertaining the child’s wishes. They will have to cope with the dilemma that counsel cannot give evidence before the court and how that is dealt with.

• To raise the case and deal with it extensively at the next senior counsel for the child workshop.
  

Section 59 Crimes Act
By the time you are reading this report, you should have received your invitation to attend forums on section 59 of the Crimes Act. I hope as many of you as possible can attend and that these prove to be productive and informative sessions. It will be interesting to see whether a consensus emerges.

David A Burns