Submission regarding Open Marketplace Conversion of Family Court
Public Interest v Personal Matters – what role the Family Court should have in private family disputes;
Generally the law should make clear the limits and people should be able to negotiate freely within those limits, without needing intervention from courts. Disputes relating to facts don’t generally need the services of a judge and should be resolved by parties, with assistance that they obtain from friends and family, that they pay for. If a dispute about facts or final decisions remains after mediation, then this will need to be decided by a judge, who doesn’t need to be a Government employee. By allowing user pays for judicial services, open competition on service quality and price should improve the relevance, timeliness and quality of service. Parties can then negotiate the agreed maximum liability that they require with the judge and this will be reflected in the charges. Initially, a quick informal check of application documents and affidavits for sufficiency would not warrant any liability and the charges would be lower as a result.
The Government has an interest in seeing that all relevant information is reliably and cost effectively available to citizens. All judgements should be directly available to citizens, so that all parties have access to the same information, on an equal basis, at low cost. For a judgement to be enforceable, it must be publicly available from the date of judgement. All private negotiations occur in the shadow of the court, thus all formal judgements must be available to the public, with deletion only of financial numbers. The judgement would only be enforceable, to the extent that it was publicly available. This protects the public from judges acting improperly, as happens at present.
The Family Court’s purpose, role, and function (therapeutic role or Court applying the law?);
If Family Court attempted therapy, this would create a confusion of goals and conflict of interest. The court should set precedents as required, so that the majority of situations can be resolved by the parties, without any intervention by courts.
When respondents feel that they have been targeted with baseless applications, then they feel that they are being treated anti-therapeuticly. Even though therapy is not the goal of a court process, it should have more positive therapeutic effect than negative.
Whilst I am not recommending therapeutic treatment by courts, I am not saying that courts have no responsibility for how they treat parties. On the contrary, courts should be held accountable, for the foreseeable consequences of their actions, in the same way as any other commercial party may be held accountable. Where a drug treatment has an increased risk of patient suicide, this issue is constructively considered in making treatment plans and in professional accountability.
The role of professionals (lawyers, psychologists, counsellors, mediators, social workers etcetera);
Generally, there is little need for counsel for children, unless there are clear and major conflicts of interest between parents and children. Usually these issues are minor and are better addressed by the judge. Meeting with children is appropriate, when disputes are contentious. In this situation, it is better for the judge to speak directly, than through an appointed lawyer.
At present, there is no clear standard of what is expected from parents. This causes problems, in making assessments of what is satisfactory or not.
Psychologists are poorly utilised by courts. Largely, this is due to the lack of a clear standard for parenting resources and skills. As far as possible, parents should be encouraged to provide information required and resolve issues before court. The Family Court does not make much use of information from schoolteachers and doctors. Certainly there are potential problems, but these are less than presently occur with bringing in a psychologist.
There is no definition of child neglect, which is satisfactory for diagnosis for young children. Waiting until severe problems show up for the children, only allows responding when the problems are severe and entrenched for the child. For this reason, we need to put more emphasis on checking parenting motivation, skills and resources, so that entrenched problems for the children are rarely allowed to occur.
Prospective parents should be given advice about their parenting skills and how well placed they are for parenting together and for possibly parenting separately. If advised that their skills or resources were acceptable for together parenting, but at risk for separated parenting, the couple would need to think through their options carefully. It is wrong to allow parents to proceed into a hazardous situation, for themselves and their children, where this is clearly foreseeable. There are moderate suicide savings to be made, as well as large financial savings for the taxpayer and sufferers of criminal damages.
What should be the Family Court’s jurisdiction?
Family statutes/regulations and the impact of procedure on efficiency and costs;
Perverse incentives in Social Welfare Act and Relationship Property Act need to be resolved by Parliament. The German model of family responsibility appears to be the only way that sufficient incentives can be put onto people to manage their own affairs constructively and at least necessary cost to Government. The Family Court cannot resolve problems wrongfully and continuously being created by these Acts.
Care of Children Act and CYFs Act generally good, but unnecessarily long. Family Court Rules generally good, but too long and breached too often in the courts. All of these acts and rules are under continuous meddlement, which appears to be a barrier to the public understanding them.
When there are child protection issues, the Family Court needs access to parent’s medical records.
The Family Court is overloaded with poor quality and trivial applications. By making clear what is acceptable and not acceptable in parenting decisions, then far fewer disputes would proceed to a hearing. Most disputes should be worked on together by the applicants, so that the issues were resolved before a formal application was made. Separation agreements would have to show that the parenting plan proposed would put both parents in a position that each would separately meet the necessary standard of parenting resources, skills and mental health.
For this to work, all of the Government social legislation must apply constructive incentives to citizens. DV Act encourages evidenceless applications, because some parties see this as being to their short term advantage. Certainly, there are large education needs to solve these problems.
Rebuttable presumption of shared parenting is safest for children and by setting a starting point based on children’s development and safety, the transaction or negotiation costs can be greatly reduced, thus avoiding unnecessarily impoverishing families and wasting Government resources on court hearings.
Family Court is usually not effective at enforcing agreements and this is a major factor in poor trust. Why spend money in court, if you have very little confidence that the court would enforce the judgement, or that you could afford to approach the court asking for enforcement. Most enforcement should be ensured by sureties negotiated as part of the original agreement, so that enforcement could proceed without any court action required.
In particular, agreements for sharing through time usually are not enforced, so that litigants are put into a situation where long term sharing agreements are not trusted. In many situations, long term sharing agreements are in the best interests of children and parents, but if they are not trusted, then the options that remain are greatly reduced and damaged. This problem is even more problematic, when NZ and foreign courts are involved. Again, the German family responsibility model and use of sureties can help in international situations. It may not be highly effective in international situations, but it couldn’t be less effective than present enforcement of international treaties and judgements by Family Court.
Does the Family Court structure help achieve durable and financially sustainable outcomes?
Affidavits should allow issues to be resolved before hearing. Parties usually cannot resolve disputes about facts in just affidavit and affidavit in reply. Thus, these affidavits should not be accepted until the factual issues are more satisfactorily resolved. These are issues that friends and family support can often be used to sort out, at lowest cost. The present poor quality of affidavits places an intolerable load onto judges. If the underlying facts are misunderstood, then it is unreasonable to expect judgements to be valuable and long lasting.
Is the Family Court responsive and accessible to vulnerable individuals?
If the court time was only used constructively, then access itself wouldn’t be a problem at all.
The Family Court has too much focus on billing, legal issues and rules, so that their is insufficient time given to finding facts, clarifying child development and protection issues and making workable and enforceable plans. Plans should setup a constructive working relationship between the parents for the future. Unfortunately, one public example is Kay Skelton. Another was the [suppressed] Peter Goodfellow example, where a wealthy childless couple fought over the custody of their dog!
Due to present time delays, there are access problems for all individuals. Cost cutting in Legal Aid, will result in patchy access for all individuals and even more so for vulnerable individuals. Prioritising should be help to manage this, but this requires competent identification of what the issues really are, which has proven elusive for LSA. These problems will probably persist, until lawyers are held responsible, for the quality of cases that they present. Presently, judges don’t report for discipline lawyers who present baseless applications, or who breach rules and acts.
How to incentivise self-determination of family disputes rather than litigation?
At present, the public does not have satisfactory access to all judgements and this needs to be remedied by Government, so that this is outside of the control of judges. The public must have complete information about what goes on in court, so that parties are on an equal basis in private negotiations and that these negotiations can proceed efficiently without any contact with court.
Better vetting of applications is an essential element. With private judicial service providers, parties can approach one, for an informal opinion on the quality and sufficiency of affidavits and parenting proposals, at relatively low cost. Any insufficiencies identified will allow the parties to complete their applications and assist them to improve the quality of their proposals, at lowest cost to them. In many cases, they can complete their negotiations so that their is no remaining element of dispute. In this case, the application becomes a consent agreement and can be approved by a judge, as long as all child care, development and protection issues have been satisfactorily covered.
When the Government picks up the costs, people don’t have much incentive to be constructive. Making users pay costs which reflect the cost of operating courts would restore these incentives. Letting costs lie where they fall doesn’t protect respondents from vexatious applications sufficiently. Allocation of court and party costs, based on the reasonableness of applications and response is essential to incentivise constructive behaviour.
Alternative ways to address emerging trends, needs, and issues.
The common law process of judgements and appeals should respond to changing social conditions if:
1. all judgements are publicly accessible,
2. all legislation is publicly accessible
3. all citizens have similar (equal?) access to courts, and
4. the costs can be kept reasonable.
When legal aid creates a very uneven playing field, then common law fails.
The main problems are legally baseless applications, evidenceless applications and vexatious applications. Although there are systems in place to prevent them progressing, these systems are presently not being applied. This puts unethical pressure onto Government, to spend more on courts, for no social value.
This submission focuses only on the functions of Family Court, dealing with:
settling disputes between separated parents, about the raising of their children
relationship property division,
removal of children from parent(s) due to neglect or abuse
This submission focuses on what changes are necessary, for the Family Court to reliably deliver satisfactory value for money. Decisions about utilising the services of Family Court need to be made in the same way that any household needs to prioritise its spending decisions. Accountability within a household facilitates challenge about quality of spending and measuring the value actually delivered, against that expected when the spending was agreed.
The creation of the Family Court was an experiment, which is overdue for critical evaluation (30 years – 2 generations of dysfunctional families).
Generally the public underestimate the time required to investigate family planning issues and even more so when investigating options for two somewhat independent households. For this practical reason, the Family Court tends to select from a reduced set of options. In doing so, it fails to meet reasonable expectations of users.
Due to its built in high cost structure, it could never provide a service with the quality expected and a reasonable cost. Due to these pressures, it often fails to correctly find facts. To satisfactorily sort out issues of fact, requires more than just affidavit and affidavit in reply. As a result, the resulting judgements are often not useful and lasting. In practice, if parties refuse to work together on affidavits, then it is unlikely that anything on earth could make a proper finding of facts and sensible plan for the future, when paying such high hourly rates, far higher than even USA pays.
As a result, it may be preferable to halt Family Court, before its replacement has been completed.
Improving Value by Accountability and Constructive Incentives
When the person making decisions about using a service is paying from their own pocket, then they have the strongest incentive to use the service sparingly and constructively. They will need accurate and honest information about the service and the long term consequences of using it.
The mediation process suggested in this submission is largely based on the work of Coogler:
Structured Mediation in Divorce Settlement
A Handbook for Marital Mediators by O.J., Coogler
Family Mediation Association, Lexington Books D.C. Heath and Company
Lexington, Massachusetts, Toronto
Government funding may be made available due to financial, social or intellectual weakness or vulnerability. Government needs to operate accountability mechanisms, to ensure that it’s spending does achieve the outcomes expected, for the people intended to benefit and doesn’t wrongfully impose costs onto other citizens, for responding to applications that should never have been accepted by the courts.
In the case of Family Court, many decisions about initiating applications are made by legally-aided litigants, who then will not pay any court costs and are shielded from accountability for the reasonableness of their application, by the Legal Services Act. This does not enforce any accountability for unreasonable or even vindictive legal actions. (Although the legal aid may be a deferred loan, presently most beneficiaries do not understand that this loan may be repayable in the future, if finances permit.) Although the LSA is expected to vet legal aid applications, to prevent merit-less cases going to court, legal aid lawyers are very aggressive to support applications. It is often difficult to fully evaluate the merit of a case, before the evidence has been fully assembled and in practice many merit-less cases reach a full hearing. The systems for after the event accountability also fail to operate, as judges usually don’t require accountability from lawyers and the LSA is only rarely informed about applications which turn out to be merit-less at the hearing.
The public are not well informed about many issues of family lifestyle options, mental health impacts onto parenting and family law. Presently Government is helping with public education on a wide range of issues, from mental health, to investment management, to superannuation, to parenting/child rearing. Provision of family negotiation and legal information to public would be lower cost than the present cost of Family Court, as well as improving outcomes for families.
Decision making is controlled not by the actual incentives, but by how the incentives are perceived by the decision-maker. If people are poorly informed, then decisions may be made differently from how they would be made, if the person was better informed. Many legal-worker’s-aided litigants are not made aware that the legal aid is a suspended loan and that repayments may be required later. The legal-workers have a strong incentive to fail to make the litigant aware of this responsibility. It seems that many litigants don’t read the agreement form that they sign, or are unable to understand it. For these reasons, more education is needed to assist people to protect their own interests.
If the two parties have different information about the likely decision that could be made in court, then there is a high chance of an extended and contentious dispute. Due to the unreliability of most of the information about Family Court, this situation occurs most of the time. Some results from old information, most of it from incomplete or outrightly dishonest information. In particular, the legislation is seriously misleading, as most judges do not follow it anyway. Many judgements are not supplied to legal publishers, so that the ones that are, become seriously misleading.
The Family Court has generally proceeded on the basis of not enforcing accountability between parents. Certainly, it is difficult to enforce accountability between separating parents, but by giving up at the first post, the Family Court leaves the children unprotected. By fostering distrust and non accountability between parents, the Family Court energises ongoing dispute, at the cost of the children developmentally, socially and financially.
Examples: History of Kay Skelton Chris Jones Jayden Headley saga, Juliette Gilbert aka The Fugitive Mom commits suicide after repeated refusal of any access with child Sky
Incentives are difficult to manage. If a politicians thinks to themself, I would not want to be a solo mother on X $ per week, a young woman may look at the same X $ per week and perceive that this would be an attractive lifestyle. Possibly once in that position, her evaluation might be different, but by then the die is cast. (Just as important in practice, is skill at spending. Many young solo parents spending skill is poor, so that they achieve a poorer lifestyle, than what an older, more mature person might achieve, with the same funding. Mental health issues play a significant role, in quality of spending outcomes.) Thus for an analysis of incentives to predict the real world outcomes, it is necessary to analyse from a very wide set of viewpoints (personal values) and situations. If this is not done well, then legislation will probably not have the set of outcomes that was expected. Once the legislation is in force, it is not possible to turn back the clock, as many outcomes are not reversible, for example the decision to bear a child, or commit suicide.
A significant fraction of all separated fathers have left NZ for other countries or taken their own lives. These numbers are so large, that it is untenable to casually dismiss this as a society wide mental health problem. These factors directly impoverish the parenting available to the children involved. These scenarios also result in these children being at higher suicide risk, than children who have both their parents available to them. If there are factors about the way the Family Court operates that drives such a large number of men and also a significant number of women to suicide, then it is very much in society’s interest too, to understand these issues and take corrective actions. [Example of mother suicide – Juliette Gilbert.] Quite apart from the suicidee’s own enjoyment of life, the suicides impact harshly on their left behind families, particularly on their children. This is an issue that can be quickly turned around. The cost savings to Government are large and the implementation costs are small.
Who is best placed to do this work
Most of the work presently being carried out by Family Court was done by parents themselves, or through the assistance of family and friends, 30 years ago.
When this work was partly taken up by Family Court, no improvement of outcomes was achieved, but citizens and Government were left with a huge set of costs.
The secrecy that the Family Court puts around it has allowed the it to give confusing signals to the public. These signals make it difficult or impossible for separating parents to negotiate constructively and also difficult for parties to settle in court too.
By returning these tasks to private providers, the Government would be relieved of these unnecessary costs and the protagonists would be better able to able to manage their own costs, resources and application timescales.
Family and friends have experience with the parents, so that any attempt to present false evidence is readily detectable. By comparison, a judge has no personal knowledge of the parents at all and verification of presented evidence will prove expensive and often unreliable. Certainly, this is a choice best left to the parents themselves, except when their are vulnerability or competence issues.
By giving the parents the right to choose their provider(s), they can choose the most cost effective way to proceed and do as much of the work as possible themselves.
Different aspects of judging could probably be best provided by different service providers. Verifying information presented in affidavits requires investigation and local checking of provided information.
ONE CASE-ONE SPECIALIZED JUDGE:WHY COURTS HAVE
AN OBLIGATION TO MANAGE ALIENATION AND OTHER
HIGH-CONFLICT CASES by Hon. Donna J. Martinson
FAMILY COURT REVIEW, Vol. 48 No. 1, January 2010 180-189
Ã‚Â© 2010 Association of Family and Conciliation Courts
Judge Martinson makes a case that family work requires specialist judges and cases should not be processed on a basis of the next available judge. She is addressing continuity more than the degree of specialisation required. I agree with her illustration of the issues and that generally judge continuity is economically more efficient, just that the customer should be able to make this decision, rather than the court clerk. (She also go into the issues around alienation, which was a major issue in the Kay Skelton debacle.)
The financial aspects of separation and ongoing parenting may require the use of a specialist in these areas. The development and care of the children may require the employment of someone trained, knowledgeable and experienced with children. The legal aspects of providing for future enforcement of an agreement will probably require someone with legal experience in NZ and possibly overseas jurisdictions too. It is inconceivable, that one individual could meet minimum professional standards in all of these areas. Just as design of a building utilises several professional specialities, great advantage can be obtained by using a consortium to bring in necessary skills, just when they are actually required. This is similar to hospital doctor teams, or teams of engineers designing a dam or computer, teams of forensic scientists investigating a crime or teams of craftsmen building the building. It is commonplace for a lead designer to subcontract the specialist skills required, as the customer may not have the understanding to know how much work should be distributed to each specialist. Agreed liability and liability insurance force good practice in managing the work and the risks that are present. Doctors, teachers, building designers and computer designers have a better track record than child protection organisations.
Ensuring Private Adjudicators are Working Under Constructive Incentives
At present judges are employed on fixed salaries and with an assumption that judges will avoid commercial investments. Although this generally avoids conflict of interest, it does not apply any incentives towards efficiency, quality and quality of service. These issues have been major problems for Government and self funded litigants, all around the world. In the longer run, legally aided litigants also experience wasted costs resulting from evidenceless, legally baseless and vexatious litigation, that they have initiated.
By contrast, applying user pays to the use of judicial services puts the maximum incentive onto parties, to use such services sparingly and efficiently. The opposite problem may be that they cannot or will not spend their money on judicial services, possibly to the detriment of the protection of their children. However, if they wish to separate, then child protection issues must be addressed, for the separation to be approved. When child protection issues are raised, then even if the parents do not pay to finalise the issues, CYFs can progress the investigation at their cost, as happens presently.
Under users pays, it is necessary to ensure that the providers of judicial services have strong incentives to deliver a quality service, that is cost effective and will sufficiently protect children’s interests.
Privatizing the Adjudication of Disputes
Department of Economics, George Mason University
EDWARD P. STRINGHAM
Department of Economics, San Jose State University
Independent Institute Working Paper Number 69 October 17, 2007
Must the state handle the adjudication of disputes? Researchers of different perspectives, from heterodox scholars of law who advocate legal pluralism to libertarian economists who advocate privatizing law, have increasingly questioned the idea that the state is, or should be, the only
source of law. Both groups point out that government law has problems and that non-state alternatives exist. This article discusses some problems with the public judicial system and several for-profit alternatives. Public courts lack both incentives to be customer oriented and pricing mechanisms, plus they face problems associated with the bureaucratic provision of services.
When parties can choose their tribunals, in contrast, those tribunals must serve customers and be mindful about conserving resources. Competition between arbitrators also can allow for experimentation and the provision of customized services rather than a centrally planned, one size fits all system. Contracts with an arbitration clause can easily stipulate the
choice of tribunal, and we argue that if government courts simply refused to overrule binding arbitration agreements, de facto privatization could easily take place. This article discusses how private adjudication of disputes could enable the market to internalize externalities and provide
services that customers desire.
Caplan and Stringham argue that the apparent inefficiency and poor customer services problems that dog adversarial Government paid courts, result from not managing the conflict of interest between Government and judges interests. This conflict can be effectively managed, by the user pays principle, in open public courts.
I suggest that these problems are un-solvable for secret courts, where there is no effective public accountability mechanism operating.
Family Court is not meeting reasonable expectations of it, for service quality or cost.
Some parents separate with unrealistic expectations, financially and with respect to the difficulties of separated parenting and perhaps finding new partners.
Lawyers have unrealistic expectations about their incomes, leading to overcharging, often for substandard work.
Profit and the practice of law: What’s Happened to the Legal Profession / Michael H. Trotter.
ISBN 0 – 8203 -1875 – 2
1. Practice of law – Economic aspects – United States – History.
A large facet of all of the unmet expectations issues, is lack of world knowledge or restrictions which restrict public access to information needed to make good quality decisions. Thus some form of education programme is essential. It is one thing to offer low cost access to information, but getting the public or professionals to spend their own time to learn will be a major barrier.
However, when users have the highest possible level of incentives to obtain the best outcome, then they will be likely to allocate sufficient time.
Family Court secrecy has been a major barrier to the public being accurately informed. Opening up the Family Court will greatly assist the public to be better informed and help to manage conflicts of interest and perverse incentives. With diffusion of information, many of these situations come to public notice and so they should. The aggressive defence of secrecy by Family Court judges appears to be to protect their interests from public exposure and accountability. In the long run, the secrecy disadvantages the children, it is supposedly there to protect.
Even more importantly, the Family Court needs the assistance that the public and media can only give if they are present at hearings and able to know what is going on.
One major problem of the present system for paying judges, is that they seek to rehear everything, on the slightest of excuses. When the litigants pay for the majority of legal costs, they will only want to pay for services that they perceive as being worth paying for. The present conflict of interest, where judges are paid by the hour can only be managed by changing to user pays with negotiated fixed charges.
If the parent’s financial issues are within their own understanding, then why pay for more than a quick once over with a lawyer? If their child development issues are straightforward, then why pay for unneeded psychologists and psychiatrists?
Treatment and Diagnosis
In essence, many Family Court orders have an element of providing treatment. This applies particularly in child removal and DV Act orders. Forcing treatment onto a parent may be hazardous, when they are not consenting. When treatment is forced, then there is a high degree of responsibility required, to make sure that the treatment is in fact efficacious and does not have unwanted or unintended consequences. At present these issues are not being satisfactorily attended to by CYFs and Family Court management.
When treatment is considered, then there needs to be a reliable procedure for diagnosing the situation. Even if the treatment is effective for the condition, it will not be effective and worthwhile if it is given to people with different problems!
Unfortunately, most parenting problems cannot be reliably diagnosed and treatments may sometimes be effective and other times totally fail. This is not satisfactory, for protecting children. It is also unsatisfactory, in ethical terms too.
Accordingly, if parents lack the motivation, skills and personal attributes for parenting, then they must either accept ongoing supervision or lose their children, before the children are seriously damaged.
In particular, the degree of skills and attributes for separated parenting is more demanding, than for together parenting, so that separating brings with it a much increased risk of state intervention or even child removal. For this reason, the Government must require that child protection issues are addressed competently, before children are removed from their marital home.
There is very little evaluative research on parenting courses or domestic violence courses. Quite large sums are being spent on these courses, but no evidence as to whether any value is being delivered at all. We are unable to lift our performance, if we don’t measure what is happening and compare it to what was hoped for. As well as measuring desired outcomes, we should also be monitoring for unwanted outcomes, for example driving parents out of NZ or to suicide.
FailingTo Figure Whitehall fails to apply competent statistical analysis before approving new policies evaluation. This book looks at the social consequences of putting new policies into place, without a careful analysis of the full set of consequences, in UK.
Is legal system economic dispute resolution service Stuart Birks and Gary Buurman October 1997
Bristol murders suicide sir ron davison 1994
Sir Ron Davison wrote this report an a dramatic murder suicide and made recommendations for new legislation, without first looking at all available alternatives. He did not look into the practical application of his suggested legislation and did not look for any perverse effects that might occur as a result of this legislation and did not make any proof that the suggested legislation would be effective for its stated purpose.
A Manual of Family Court Performance Measurement State of Delaware
This report covers a system for measuring the performance of Family Court in Delaware. Although it includes some indicators of how users of the court perceive its performance, they were all short term and did not look at how the court’s performance would be seen from a longer term perspective. This is in contrast to the NZ Family Court, where no such measurements have been published. Only the viewpoints and opinions of women have been considered and no measurements, other than delay to hearing.
Efficiency of Common Law
Common Law is accepted as being reasonably efficient for most civil disputes, when all parties are well informed and when groups of people with similar interests can work together to assist in appeals affecting their shared interests.
Common Law has been shown to be inefficient and may lead to unacceptable outcomes, when citizens do not have accurate and complete knowledge about what is happening in courts. Groups who are easily disadvantaged are those who lack the social skills to work together cooperatively, to protect their interests through courts.
This applies particularly to solo parents, mothers and fathers and also people with mental health impairments. This is why these groups have not been effective is applying pressure onto the Family Court, to improve its performance, in both child protection and separation issues.
Accordingly, there is a need for the Government to apply a large amount of resource and research effort, to make sure that legislation is likely to meet social needs and also to monitor implementation of new legislation to make sure that it is working as intended. Most of the problems that this submission addresses result from legislation that has been in place for 10 to 30 years, but has never been checked for the quality of its operation. Thus problems have not been solved at the earliest opportunity and the unwanted consequences have become extremely expensive for society.
As the parties would have available judicial provider’s full records of past cases, charges, time delays and being overruled on appeal, they could make a well informed choice of which provider to use.
As the service provider would carry the costs resulting from successful appeals against their judgements, the customer would be substantially protected from delivery of unsatisfactory judgements, up to the limit of the negotiated liability accepted.
Judges may fail to supply a judgements to the legal publishers, thus effectively censoring public access to the judgement.
This disembowels the concept of common law, that all laws are publicly known, or at least readily accessible by all citizens.
As a result, the the present legal publishing system is unable to satisfactorily inform the public. In any case, their access charges are out of reach of most citizens, so they are unable to serve the democratic function.
Where judgements are given, but not accessible to the public, then the public cannot appreciate the quality of what is going on in court. This allows the range of judgements for a given situation to become much wider ie to the point of being far outside of legislation. This makes it impossible for the public to be well informed and order their affairs so as to not require court judgements.
Different members of the public may then have quite different expectations of court, thus fostering disputes being non-negotiable and ending up in court. This corruption of common law greatly benefits legal workers, at great social cost.
Judicial activism has been the source of a lot of the erraticness of judgements in Family Court. While this may be creative, on occasion, when carried out under secrecy, there are practically no checks and balances. By ensuring that all judgements are published and publicly accessible, as a condition that they can be enforced in the future, judicial activism would be restricted by the financial risks that would come back onto the service provider. These risks would only be worthwhile, when agreed by the parties and the provider saw that it would enhance their public reputation for constructive economic solutions.
Judicial activism may be one of the factors that has driven father’s suicides.
This submission proposes an open marketplace, as a higher decision quality, lower cost replacement for Family Court. This submission is based on the existing Care of Children Act 2004 and Family Court Rules, the difference merely being setting up a responsible personnel system that allows them to work, or incentivising the worker’s interest to line up with the employer’s interest (to use the language of management theory). Alternatively put, an honestly well informed consumer can manage conflicts-of-interest, by making their own decisions about which provider to use.
The present review follows on from Government concern at the rampant increase in the costs to Government for running Family Court, far out of proportion to outputs and activity levels. This being against a background of slow response and serious public concern about the quality of what was occurring in the Family Court.
Although politicians generally did not want to get involved with Family Court, the failure of the legal-workers to respond constructively to calls to improve their quality and cost effectiveness, has resulted in an intolerable situation for Government and society, that must be resolved quickly.
Although the courts have mechanisms for the control of allocation of Government resources worthless or very low priority activities, through the last 50 years, these mechanisms have ceased to work. This has been due to the values of people working within the system, who have been believe that justice is beyond any price and therefore there is no need to exercise judgement of social value, when deciding whether an application will be allowed to proceed through the system. Perhaps these decisions did not need to be challenged, when NZ Government was in a strong financial position, but now the pressure to act is immediate.
Social damage has been a far larger cost to society, than the financial costs to Government of the courts and legal-worker’s-aid. Also, for every dollar wasted by Government in Family Court, there is either a taxpayer paying a legal-worker or self representing. Eeither way there is a respondent, wasting time and money. The solution to both of these problems is the same.
Similar cost management problems have also been being experienced in all aspects of the court system, in particular the criminal courts and the associated legal-worker’s-aid scheme. Although there has been much public discussion about fraud by legal-workers, in my opinion the root cause is the failure by judges to discipline legal-workers, as these frauds occur and more importantly, direct similar actions by these judges, to wrongly prolong hearings, for the benefit of all of the legal-workers involved. All of these problems have been solved several times previously in the courts management, the old solutions will have to be reapplied with much greater vigour and determination, to restore a workable courts system.
Similar cost management and fraud problems have also been experienced with social welfare benefits, in particular related to the number of people unemployable due to mental health or for unsupported care of young children.
There is concern in industry and commerce about the performance of the education system, not so much for costs, but mainly for the quality of outputs, in terms of workers. Specifically, the poor employability of the lowest quintile of the workforce. The Government has made good use of its monopoly position as employer (or purchaser) within the education system to control costs and apply quality control measures. Knowledge about how children learn and how best to teach children has developed dramatically in the last 50 years. This knowledge has been well taught in Teacher Training.
The Government hasn’t been able to ensure that the children entering the education system meet minimum standards for educatability, ie attention, stability, motivation to learn and generally the mental health of children. This is particularly problematic, as minimum acceptable standards for children entering schools is critically important, now that workers minimum standards have risen so much and there is little demand for a large number of unskilled workers in the NZ economy.
Although many $billions have been poured into supporting beneficiaries, with the intention of helping their children too, the outcomes have been a mixed bag of some success and an unacceptably high number of low level successes and failures. Perhaps this is not surprising, as the way we provide these benefits has included a large number of perverse incentives. The outcomes have reflected the incentives forced onto these people.
Focussing more on the children, than the parents, the degree of failure is even higher.
There has been no effective quality control or accountability, on how Government support to parents has been spent. When parents lack essential parental and household management competences, then the children’s development opportunities and outcomes may suffer. In the longer term, this seriously impacts costs onto Government. There has been discussion about supplying benefits as a EFTPOS card, that would only allow expenditure on worthwhile expenses. In the real world, even such controlled benefits can be traded, to bypass the intent of the controls. Clearly, much tighter supervision of beneficiaries and their performance is required.
Government responses, to develop mental health, stability and work skills into unemployed adults are extremely expensive and typically only marginally economic, even when the full costs of saving prison costs and reduced criminal injuries to the public are included. Our prisons are really just secure mental hospitals, timeout and offering limited treatment and insufficient supervision and support after release.
Government responses for school age children are expensive, moderately effective and moderately cost effective. To turn around these social problems, we must protect all children from disinterested or less effective parents, in particular parents with psychiatric problems, even if these are only short term.
Smaller, more nuclear families has made it much more difficult to protect children and to pass on parenting skills to our children. Through this same time period, our expectations on parents are much higher. It seems that we must put more of our children’s time into people/parenting skills. This is no loss, these skills help in the workplace too and also in boosting mental health (wellness) through our society.
Although this enquiry into the Family Court has been triggered by the financial costs, I respectfully suggest that the wider social costs resulting from poor quality decisions made by Family Court is the critical issue.
Substantial improvement of parental performance will only come about by frequent measuring of performance and some alignment between Government incentives and the measured outcomes. Accountability drives improved performance and also helps to drive incompetents out of the marketplace.
Interestingly, performance improvement in Family Court will only come about, when the Government closely monitors performance and ensures that the incentives that it gives staff in the Family Court encourage them to perform to serve their customers and funders.
When users are given honest and complete information about skills, quality and customer satisfaction achieved by potential service providers, then they are in the best position to assess value for money. The best incentive to making a wise decision, is that you will have to take responsibility for the part of the charge that you have responsibility for. This also gives a strong incentive to take the best advice possible from family and friends, who want a constructive outcome and don’t want to charge inordinate amounts.
Present judges have been very aggressive in their restriction of effective public access to information about what occurs in Family Court. This has seriously disserved Government and consumers, in particular children’s outcomes. This shows up years later in criminal statistics and prison costs. Our investments in low quality courts are now paying back, to our horror.
Alas, the present incentives to workers in Family Court, reward them for featherbedding, poor performance and outright fraud of the Government and consumers. Public and customer accountability drives improved performance and also helps to drive incompetents out of the marketplace.
In the same way that it is important for Government to consider incentives and carefully align magnitudes of social welfare benefits with desirability of various outcomes, ie to avoid perverse incentives, it is important for Government to constructively manage the incentives that it offers staff in courts, or else Government is just paying staff to screw it’s policies and bank-balance.
In Family Court, judges break apart families and let the children drift into dark destructive unsupported lives, more wages to judges. In the criminal courts, ineffective judgements and sentences stimulate crime, rather than incentivise people to go straight and pay tax, more wages to judges.
Similarly, the Care of Children Act 2004 puts duties onto judges to manage the incentives that the Family Court gives to parents, to work together respectfully and constructively, to protect each other and serve their children.
In sacrificing this duty, to serve their personal financial paramount interests, the judges are sacrificing the long term interests of these children. Although the Kay Skelton example is iconic, tens of thousands of children live impoverished, reduced opportunity lives, as a result of Family Court judges refusing to put incentives for parents to work together. Their inability to judge responsibility ends up reflecting their personal lack of responsibility about how they are treating their employer, as well as the children. This is not just children missing out on skiing, overseas travel and restaurants, but going to sleep alone, when their other parent is denied contact to maximise “child support payments”. End result is sad, insecure, lost children and at the end of the bell curve, more than a few unnecessary child suicides. More money for judges, or safe children? I would rather protect the children’s interests.
When a judge rewards relationship destructive behaviour between parents once, there is a major risk that this will be repeated many, many times. [Kay Skelton and Ross Dempsey 8 times sex abuse allegations, before being resolved by Judge Boshier] When a judge sets down constructive incentives, for parents to act responsibly together, in addition to giving the child better and safer access to both parents, the future need for Family Court hearings is suddenly diminished or prevented!
Society in Which Family Court Functions
The society in which Family Court functions has serious problems relating to:
large numbers of individuals who are unable to work, due to mental health problems
individuals who are unable to work or have low income earning capability find social welfare benefits particularly attractive and thus have the strongest incentive to have children without having a long term partner to share in the cost and burden of raising of these children. This is a perverse incentive, as we are not intending to give financial incentives to encourage children with poor income earning capacity to have children.
individuals who are unable to work due to mental health problems are the group most likely to have poor parenting skills and the least degree of social support for their parenting. This puts their children at a significant risk of neglect or abuse.
At present, the only counter-driving force against having children without a partner, is the threat of child removal by CYFs. Particularly for very young prospective parents, the threat of child removal by CYFs appears remote and unlikely. Perhaps if there was better knowledge in the community, that being partnered and having better parenting skills would greatly reduce the threat of child removal, then fewer children might choose to become single parents.
The Social Welfare benefits system includes a large number of perverse incentives. Some of these encourage development of further financial and social dependency. Some encourage custodial parents to make decisions which maximise their tax free cash income from child support, rather than share the upbringing of the children with the father. In the longer run, these decisions often result in poorly disciplined children, who cause further expenses in the criminal justice system and criminal injuries to the public.
The social problems listed above, tend to generate large numbers of problems, which the Family Court is not able to assist in solving, but which generate large numbers of applications to Family Court. In essence, poor legislation quality leads to wasteful and inefficient Government spending. For example, the DV Act has resulted in large numbers of applications, but the statistics for death and injury in the home have not been positively impacted in any way at all since the act came into effect. This should y lead to re-evaluation not just of the Family Court’s performance, but of the conceptual basis of the entire DV Act itself. (Same for LSA Act and Social Security Act……)
The Family Court operates under unnecessary amounts of secrecy and this has held back improvements and allowed performance levels to fall back a long way, with little public discussion about what was happening.
There has been a beneficiary mentality within the courts, which has led to an expectation that salaries would increase faster than inflation, irrespective of whether social objectives were being delivered.
The proposed procedure below is essentially that laid out in existing Family Court Rules.
Each party could assemble their case themselves, or ask a friend or family member to help, or pay lawyer to do it for them. If they want a quicker outcome, the applicants could work on the applications and affidavits together.
They could present it directly to one or more judges, for price quotation for formal judgement, or just for informal feedback on the completeness of the evidence, for the clarity of the issues at dispute and an indication of likely outcome.
They could appoint one judge, or if there was disagreement between parties, appoint one judge each, with the judges to select a third judge if required as a tiebreaker.
When one parent wants to separate and remove one or more children from the marital home, or divide relationship property:
Prior to removal of children from marital home, ie with children having frequent access to both parents, or prior to removal of assets:
1. the party proposing a change file a parenting plan and signed acceptance by the other parent, or
2. file evidence to support that the children should be removed unilaterally by the decamping parent and a parenting plan, with evidence that this proposal is the best that can be achieved for these children.
At each step of the process, the judge would quote a price, for making judgement on the submitted papers. (This would allow competitive tendering, as the papers could be submitted to several approved judges, for cost competitive quotations. The parties could then choose one or more judges to make a decision on the issues presented. When judgement is issued, it would include a division of charges to each applicant, on the basis of the reasonableness of their respective application/counter application.)
Request for Judgement Template
The Australian Family Court makes good use of standard forms.
1. Name of parents and date of births and address.
2. Names and ages of children and/or list of assets.
3. Any particular requirements for the children and/ or assets.
4. Any particular requirements for the parents (Note this would cover the legal capacity and psychological status of both of the parents.)
5. Offered parenting plan(s)
6. Proposed division of costs flowing from the care of the children. (Note: the plan to indicate nominal values and proposed compensation for deviations from nominal plan.)
7. Other offered financial offsets between the parents
8. Proposed social welfare benefit consumption
9. Issues in dispute, requiring resolution by the judge and whether they request consideration of split options or best of the two proposals judgement.
10. requested date for judgement and whether for indicative judgement (ie assessment of quality of evidence and proposals) or for final judgement.
11. proposed enforcement mechanisms and sureties offered
12. their private costs associated with assembling this application and their maximum request for recompense from the other party, with sufficient breakdown to show hours, rates, miscellaneous costs, such as loss of earnings, transport, accommodation, research etc.
13. Request for Government contribution toward these costs and reasons to justify this.
All information, that may be used in decisions must be provided electronically, essentially as if on paper, prior to any formal hearing. This is to prevent evidence ambush, in accordance with the principles of natural justice.
Parents can assemble their application jointly, or separately in response to each other. The joint application approach minimises waiting for judgement time.
The evidence by affidavit approach facilitates cards on the table negotiation during the assembly of the application papers.
Before making a decision, the judge would have full access to the history of the file, in a similar manner to medical practitioners responsibility to be up to date on the file.
Helping Parents Manage their Application Process
Alternatively, where parties are considering a formal application for judgement, they might prepare items 1 to 5, maybe through to 9 and then mediate using family or professional mediators. This may well resolve many or all of the issues, so that little, if any, work would remain for the judge.
By encouraging negotiation under the status quo, there will be far less heat in the dispute, more options remain available to the parties and sunk wasted costs are minimised. This approach also avoids the children being victims of abduction, to gain the advantage of pre-emptive strike status quo. When judges accept this style of inter-parental bargaining, they discredit the Family Court as a fair and reasonable arbiter.
All information, that may be used in decisions must be provided electronically, essentially as if on paper. This is to prevent evidence ambush, in accordance with the principles of natural justice.
Cards on the table negotiation also best preserves a respectful future relationship and a sensible degree of trust. This is essential, to protect the best interests of the parents and especially their children (if there are any).
This is already provided for in Family Court Rules, but presently isn’t enforced. This leads to the hearings losing credibility and results in huge wastage of Government funding. Certainly, to enforce the rules preventing evidence ambush does require the litigants lawyers to have fully prepared. While we tolerate poorly prepared lawyers working in any of our courts, we tolerate huge wastage of court costs to Government. Many of the poorly prepared lawyers are actually working for Government, for example CYFs.
Although this concept is well laid out in Family Court Rules and Care of Children Act, these are not often honoured, due to the conflict of interest between parties and legal workers financial interest and the fraud protective cover of secrecy.
Competence Status of Parties
To prove their competence as parents and for separation negotiations, the following issues need to be checked:
Physical health, including substance dependence
Family and social support strength
It is well accepted that for an agreement to be legally binding, the parties should be legally competent, for the issues. If this is not possible, then the agreement can only be binding, if the party obtained competent professional advice, prior to signing.
Additionally, psychological dynamics occur in probably more than half of separations, which do not reach the level required for a formal diagnosis for hospital treatment, but nonetheless, can have a devastating effect on the conduct of separation negotiations and on their parenting skills. These low level personality disorders may come and go, this often avoids formal diagnosis, but are still problematic for the parties and the conduct of negotiation.
Even more of concern, is that these issues are very likely to impact on their parenting of any children and if the Family Court is to honour it’s jurisdiction for protecting children, then this issue needs to be addressed in a practical and effective manner.
While the parties are parenting in a single household, the children are usually fairly well protected from disorders in one or both parents. However, if the children are to spend longer periods of time without access to the other parent, then minor problems are likely to become serious for the children.
The Family Court is required to address issues of child protection in divorce, but if one of the parties does not raise concerns about this, then it will not be addressed. (In the present situation, where if a father raises such issues, it is often ignored and he is criticised for not supporting the mother. Most men are chilled off from raising proper well founded concerns.)
To effectively protect the children, when there is a future prospect of solo parenting, then the mental health of both of the parents needs to be evaluated, against the levels of mental health necessary for secure safe parenting (this being quite a bit more demanding than simply not reaching treatment formal diagnosis level).
In particular, if one parent raises concern about the other, then the physical and mental health of both parents must be evaluated.
If there are domestic violence or sexual abuse allegations, then the mental health of both parents must be evaluated. This would greatly reduce the value to dangerous parents, of making DV or sex abuse allegations about the other parent, to subvert parenting evaluations, which is so easily done in the present Family Court.
If many more psychological evaluations are required, then it is obviously important for these to be carried out properly, reasonably reliably and cost effectively, without wasting too much delayed time.
Although psychometric testing, eg circle one option of five type tests are somewhat crude and rough, they are very cheap to score using computers.
Fabrication can be addressed, by getting both parties to answer for themself and again for the other party.
The bulk of the testing would be on knowledge of issues around separated parenting, child development and discipline and practical issues around shared parenting.
The reports, which would be made available to both parties, would give recommendations on whether shared or sole parenting appeared to be viable for these parents and what type of support each parent should arrange for themselves, to give support during negotiations. In most instances, these supports could be given by friends or family, who are knowledgeable in the areas needing support. (As these tests are computer generated, scored and reported, the cost should not exceed $5.00.)
If a party wants to see where they stand, they could request testing, without disclosing to the other party. At a cost of up to $5.00, this isn’t too expensive. They can then put in extra effort to sort out issues, before submitting to testing along with the other party.
It would be possible for parents to make an agreement on separation which would fail to protect the children. This is a particular risk, if the court has a reputation for not listening to one parent.
To protect the children’s interest for a healthy development, it is necessary to check both parents parenting skills and resources carefully, if either raises any concerns or allegations. It is also necessary to independently check with schools and doctors.
If there are children, the schools should be asked to indicate if they believe that the parent’s parenting fitness should be evaluated. If they flag this issue, then the parents would be required to address satisfactorily any concerns raised.
By separating, the parenting skills of both parties need to come under much closer scrutiny, than if they stayed together. This may lead a party to realise that if they left the marital home, they couldn’t just “take the children”, as they would be taking too big a risk of losing the children altogether. This would encourage more careful, less damaging negotiations for possible separation.
These considerations should also provide considerable deterrence, for getting pregnant without a secure, sensible, reliable social and financial supporting arrangement.
Efficient Negotiation Between Parties
Open access to all court judgements.
Minimise sunk costs prior to completing negotiations, ie no preemptive removal of children.
DV allegations to be proven, before removing children from marital home, no preemptive removal.
In essence, the Government is a silent party in separation negotiations. It has not asserted it’s right to take part, but given that huge costs may result to Government, then it is not responsible to allow these costs to be incurred, without managing them.
Thus, to access DPB there should be evidence based proof that serious violence has occurred and that all other family support options have been exhausted.
Also, if child support payment was to be claimed, then the other party to have first right of refusal of the care of the children, subject to them showing they are capable.
Where one party takes unilateral actions, the other party can claim for resulting costs.
Accountability for the Reasonableness of Applications
At present applicants who are able to take Legal-Worker’s-Aid loans are shielded from being accountable for costs to the other party. This creates the vision of a non-level playing ground favouring vexatious litigation. The long term consequences of possibly having to repay the loan are only understood when the loan becomes repayable (if ever). This non-accountability allows many baseless applications to go through the Family Court process and waste the court’s time.
User pays results in careful thought and active negotiation, before proceeding to a full hearing.
Constructive Incentives for Good behaviour Between Parents
One important element of making judgements in Family Court, is to set up incentives for ongoing constructive relationships between parents. This is difficult, when parents first approach Family Court, but if done well, usually results in parents solving their problems in direct negotiation in the future. The Kay Skelton debacle shows that it is essential for judges to apply pressure for parents to behave constructively towards each other.
While judges are paid by the hour, they have an incentive to foster ongoing dispute, which is quite against the interests of the children. When the parties are paying for court time, then they will be cautious in making applications.
The Costs Rules of District and High Courts do this, with respect to legal costs, but the net should be widened to all of a party’s reasonable negotiating and legal costs..
Good negotiation requires accurate knowledge about the likely consequences of proceeding to final judgement. This is often referred to as “negotiating in the shadow of the court”. Negotiations can never be efficient and constructive, if there is confusion about what a judge might decide. Without reasonable clarity, confusion damages negotiations. Presently, this is impossible for parents to assess, due to the wide variability of present judgements. Even with access to published judgements, it is not possible to gain a reliable impression about what could come out in your own case. Some of this lack of clarity is due to poorly spelled out legislation mainly due to many judgements being withheld from legal publishers, especially those in breach of legislation. This practice corrupts the concept of working common law.
Although the Family Court Rules decry unilateral action, the Custodial Parent prejudice of present judges results in Custodial Parents often gaining large advantage from taking unilateral action.
When judges allow Custodial Parents to get away with unilateral actions, they are providing strong ongoing relationship destructive incentives. When the real world consequences of the judgement run counter to the words in the judgement, then actions speak louder than words.
In the Kay Skelton example, the mother’s actions became more and more outrageous and dangerous for the child, until the situation could not be kept under wraps and the Family Court’s ethics were publicly exposed. As a consequence, the boy now has restricted supervised contact with the mother and is cared for by his father. The father never wanted this to happen to the mother or child or himself, but it resulted from the judges refusal to listen to the father and inability to impose constructive incentives early in the situation.
This is an un-managed conflict of interest situation, as legal billings and judges hours were much larger, by building conflict, rather than setting constructive incentives for the parents. The legal billings were taken very much at the expense of the quality of the child’s upbringing (to say nothing of the damage to the parent’s lives too).
A party could request a judgement unilaterally, or make a joint application with the other parent. The joint application could be in the form of two separate applications, one signed by each parent, or could be made in the form of a single application signed by both parents. By submitting a joint application, the process can be completed more quickly and at a lower cost, as there is no need to wait for the other party to respond.
It is quite common for CP or CYFs to admit evidence at hearing, that has not been signalled in affidavits. This is a form of ambush, that destroys the value of the hearing. Unfortunately, most judges will admit evidence in this situation, so that the ambushed party quite properly loses any respect for the integrity of the judges and the other party. In almost all situations, this evidence was held for a long period of time and deliberately withheld, to gain the advantage of ambush. As well as the wasted cost of the hearing, the loss of respect for the balance and fairness of the court, leads the disadvantaged party to have no trust of the judges and as a result, their negotiations have to be much more self protective. The resultant loser, is the child as well as the ambushed party. These issues are well covered in the Family Court Rules, but not in practice.
Where the parties have jointly submitted 9. issues in dispute, then the judge would be required only to be satisfied that the application is reasonable and workable, on the basis of the information submitted and to conduct minimal cross check enquiries with family, schools and employers to check that the application is in order and issue judgement on only the issues in dispute.
Once the application has been prepared and the evidence assembled, oftentimes the parents will say, lets get advice from our family to resolve as many issues as possible, before paying larger dollars per hour, to our cost.
Constructive Incentives for Good behaviour By the Adjudicators
This proposal is essentially the present Care of Children Act 2004 and Family Court Rules, so that children and assets are effectively protected from unilateral removal from the family home.
However, the employment structure is changed, so that the people offering judge services can be efficiently and effectively managed by the paying customers. The existing Care of Children Act and Family Court Rules should assist families to develop their accountability between parents and cooperation, to achieve the best possible outcomes for themselves and their children.
The perverse incentives built into the existing employment relationships by Government employment terms and conditions completely derails this good legislation. The present employment relationship rewards judges and legal workers for featherbedding, for unpredictable erratic judgements and for judgements that increase the ongoing hazard to the children.
By giving the public access to all legislation and all formal judgements and not allowing judges to hide illegal judgements, all members of the public are in a position to negotiate fairly and knowledgeably, knowing with reasonable certainty how it would be handled by a judge, if they were to proceed that far.
At each step of the process, the judge would quote a price, for making judgement on the submitted papers. (This would allow efficient competitive tendering, as the papers could be submitted to several approved judges, for competitive quotations. The parties could then choose one or more judges to make a decision on the issues presented. When judgement is issued, it would include a division of charges to each applicant, on the basis of the reasonableness of their respective application/counter application.)
Accreditation for Employment as a Judge
The decision process may be carried out by anyone who wishes to compete in an open market for judicial services, having passed a basic test on issues relating to:
1. child development,
2. child neglect,
3. child abuse,
4. family finances,
5. separated care options.
legal issues of custody, travel, enforcement, financial..
It is likely that the breadth of issues would lead to specialisation, so that some people might only take on child development, child neglect, child abuse, family issues, while others might focus on financial and legal enforcement issues. In this case, some may offer services, but with restriction of type of issues and others may practice in partnership, to offer all services in a one stop shop.
If a judgement was shown to be defective in a material respect, then the original judge practitioner would be responsible for the costs of sorting the situation out, in accordance with the provisions of the Fair Trading Act.
The problem resolution provisions in the Fair Trading Act provide stronger incentives to get it right first time and also for sorting out failures that have occurred.
Enforcement of Agreements
At present, Family Court is weak at enforcing judgements. Such situations are usually treated as an opportunity to relitigate the issues, from point zero and typically consent agreements prove to be unenforceable! In other words, the conflict between the judges interests and the consumers, isn’t being managed successfully.
For original agreements to have any long term value at all, there needs to be reasonable confidence that an agreement between parents can and will be enforced. This subject only to adjustment for unforeseen changes in outside circumstances.
At present, many disputes that could be happily solved by long term sharing, are turned into fights to the death where winner takes all, due to no faith that by giving up something in the short term, some gain can be shared in the future. Of course an adversarial court hearing increases legal bills dramatically, over what an honest negotiation would cost, thus wrongfully impoverishing the children’s and parent’s futures.
Many agreements are made, without looking at whether there are sufficient levers for enforcement. Rather than have this become obvious when enforcement is called for, it is better to build the necessary levers into the initial agreement and this also ensures that the parties have the same understanding of the degree of enforceability that there is in the agreement.
In situations of high risk, the sureties might be outside of the financial resources of the party, so that they could only be satisfied if they were aided by one of their parents, that is people who have sufficiently strong family connections, to be able to manage the risks that they would be taking on. (This is in contrast to the present situation, where many judges pressure fathers to accept low value sureties, in situations of unmanageably high risk.) By spreading risk into a family who extend into other countries of interest, this also provides informal lines of communication, which probably can resolve the problem, even though the international law agreements cannot presently do the job.
Accordingly, at the time the original agreement is made, there needs to be clear and honest understanding about future enforcement options. To demonstrate good faith, parties need to make sufficient sureties, that will actually serve to make the agreements of some value in the real world. This then will allow there to be some faith in making time based sharing decisions.
Work Required to Change to open Marketplace for Services
Social Security Act
Abatement rates are too high.
Government benefits should only be made available to people after they have shown that they have the skills and resources to parent successfully, in they situation they are entering. Benefits should not be made available, just to break up existing marriages, without a strong and proven justification. If someone wants to break their marriage, then usually they should make their arrangements without relying on Government benefits. Provision of DPB on demand, allows many children to leave the relative safety of their home, for a more dangerous solo parented existence.
shared parenting, parents tax credits sharing
DPB access should be based on showing that there was a need for independent accommodation, rather than “I want”, that is marital and family accommodation options were not available. Benefit level based on history of market earning potential, to make it less attractive to women without moderate earning capability.
Family Court Rules
Generally very satisfactory, as is. They would benefit from simplification. As far as possible, should be identical to District Court Rules, as they used to be.
Care of Children Act
Generally very satisfactory, as is. They would benefit from some simplification.
Relationship Property Act
This act creates large perverse incentives and is also urgently in need of clarification and simplification. This act provides too strong incentives to break up relationships, due to big payouts, after relatively short time in the relationship. The act rewards people for sharing less in the relationship and tends to rewards people who keep most of their funds separate.
Child Support Act
Child support should be based only on basic food, clothing, incidentals such as travel, school and everyday cultural needs of children, ie not accommodation. private school fees, international holidays.
Before CS demand should be accepted, the other parent should have first right of refusal to take care of the children, without demanding payment of child support. This leads more naturally to the parents sharing the care of the children, thus protecting the children’s right to have a working relationship with both parents. This arrangement gives the children the best protection from parents with poor parenting skills or mental health.
Child support should be based on total household income, to prevent manipulation by deciding to stay at home to care for children, rather than work for taxable income.
Child support should be based on actual care of the children, thus adjusted each year end, if the care was different from plan.
The most important change required in practice, is in attitudes within IRD CS towards accepting information from fathers.
Legal Services Act
Change eligibility rules for parental disputes, to restrict total cost per year.
Remove the protections for LSA supported litigants, with respect to costs rules, so that they are fully accountable for wasted costs and baseless applications.
Remove acceptance of evidence-less applications..
Government spending on Hague Convention cases is almost completely wasted, due to the time delays in completing tasks. This allows overseas courts to say the application was not made in good time, even when it was. Also due to other countries failing to honour applications made from NZ. Similarly, NZ has only a poor record of honouring applications made from other countries.
Much more care needs to be taken, to protect children from being abducted in the first instance. Judges pressure fathers to agree to children being removed from NZ, often to high risk or non-Hague countries, where if an abduction occurs, there is negligible chances of a proper outcome for the children or parents. Sureties could be used, but need to be large enough that they provide the left behind parent sufficient funds to be able to work through legal processes in the other country, typically several tens of millions of dollars.
Secrecy means that most fathers have no idea of how high the risk of abduction is and the judges don’t provide the information that they have. This makes it easier for the abductions to occur.
Practice of Assessing Parenting Skills and resources
Training Provides Relevant Skills
Staff in Family Court and CYFs generally have little or no training in child protection skills. In the absence of skills, factors not relevant to protecting children, become the basis of decisions. This results in children not being effectively protected from neglect or hazards.
Legal process focuses on similarities or dissimilarities to past cases, rather than focussing clearly on the real world issues facing the family.
Staff working in Family Court need some knowledge of child protection skills. Similary, CYFs staff should have good child protection skills and more than a basic knowledge of Rules of Evidence. In medicine and engineering, close specialities have a moderate degree of training in closely related areas. This is essential to support effective communications, to reduce error rates.
To reduce the numbers of mistakes, it is important for professionals to have at least a small amount of training in related areas. When professionals work outside of their areas of training and competency, then there is a large risk of making mistakes. This situation is subtle, for example a doctor may be competent for patient treatment, but not be trained as a forensic practitioner or forensic statistician. When the same person tries to play both roles, there will be a conflict of interest and quite possibly neither role will be fulfilled competently.
Medical mistakes and miscarriages of justice: Perspectives on the experiences in England and Wales
Kathryn Campbell and Clive Walker
Errors made by pathologists reporting in criminal cases on sudden deaths of
infants have resulted in serial miscarriages of justice in the United Kingdom. These types
of mistakes are exceptionally grievous for bereaved families, for the credibility of
experts, and for the standing of the justice system itself. Conclusions presented by experts
at trial are often cloaked in dense scientific language which serves to imply that such
results and testimony are factually unassailable, but in reality, these conclusions have
been found to be interpretations affected by subjective inferences and shoddy case
construction. Despite the high costs of such errors, the problem of miscarriages of justice
has persisted, for various reasons. Contemporary developments in sciences, particularly
forensic sciences, have resulted in an increase in appearances by experts before the courts
and a growing pressure to seek out forensic evidence. In some cases, experts have
become not only notable figures in their profession, but also renowned witnesses,
appearing in one case after another, with their evidence becoming more irrefutable as
The focus of this paper is an examination of the designation and work of medical
experts, how they relate to courts in England and Wales, and the impact of their
testimony on convictions. This survey will include an overview of how these types of
experts are so designated by various regulatory bodies and how the limits of their
expertise are determined. It is necessary to consider how both prosecution and defence
* Kathryn M. Campbell, Associate Professor, Department of Criminology, University of Ottawa,
Ottawa, Ontario, Canada K1N 6N5, [email protected] and Clive Walker, Professor
in Criminal Justice Studies, University of Leeds, Leeds LS2 9JT, UK, [email protected].
lawyers seek to employ their own forensic experts and how the courts referee forensic
disputes, both pre-trial and at trial, and indeed act as gatekeepers in terms of what counts
as an “expert” and what counts as “expertise.” Equally important is the impact of expert
testimony on juries, whether they are equipped to pass verdicts on scientific disputes, and
how the courts can help them in that task. It is also necessary to consider
interrelationships between legal processes that produce verdicts upon experts, including
the condemnation of their errors, and the processes which review legal or professional
error. The foremost cases that can illustrate the roles of experts, such as the leading
pediatrician Professor Sir Roy Meadow, and their forensic and professional implications,
are those of Sally Clark and Angela Cannings. A review of those cases will also allow
consideration of the specialized procedures in England and Wales that handled the
response to the findings of miscarriage of justice in those cases, including the Attorney
General and the Criminal Cases Review Commission. As well as the individual cases
dealt with through these official channels, independent and official inquiries have been
convened, and their findings should also be taken into account.
Moira Woods GP not professional diagnoser of sex abuse.
In Ireland, several men victimised by Dr. Woods had committed suicide, before investigations began to sort out the problems that she had caused.
Sir Roy Meadows in Angela Cannings case, paediatrician is not an expert statistician.
UK Regina v Angela Cannings appeal after cot deaths murder conviction
Roy Meadows defense in Sally Cllark debacle
Bayes theorem Defenders fallacy Prosecutors Fallacy Sally Clark Angela Cannings Sir Roy Meadow
Calls for Starship child unit inquiry Sunday Star Times
Former Health and Disability Commissioner Robyn Stent is calling for an inquiry into practices at Starship hospital’s child protection unit after it wrongly accused parents of child abuse.
Stent, whose stepdaughter was suspected of assault when the haematoma on her baby’s head developed as a result of a difficult birth, said the unit was like a “police station” and was treating parents as guilty until proven innocent.
Stent spoke out after the Sunday Star-Times revealed a district court judge had criticised Starship doctors for having closed minds and not considering all the evidence in the case of Auckland father Famaile Lino, who was cleared on charges of causing grievous bodily harm to his baby daughter.
Judge David McNaughton, in acquitting Lino, said it was “regrettable” the doctors had not considered all the evidence before reaching the decision to prosecute, which seemed to have been a foregone conclusion.
Since then Star-Times has spoken to a number of families who say the unit’s doctors rushed to judgements in their cases, accusing them of abuse and failing to apologise when it was later shown the injuries were accidental.
Stent says the approach of staff at the unit is causing unnecessary trauma and the current Health and Disability Commissioner, Anthony Hill, should investigate. “I believe there should be an open inquiry. If I was the commissioner I would have done it a long time ago.”
The PRIMARY CARETAKER Theory – Backsliding to the Tender Years Doctrine By Ronald K. HenryWashington, D.C.
Although the “tender years” doctrine of maternal preference has been widely repudiated by statute and case law, old prejudices die slowly. The Gender Bias Commissions of each state in which a report has been presented have acknowledged that bias continues to taint custody decisions. As overt bias becomes increasingly unacceptable, we must guard against reformulations that merely pour old beer into new bottles.
Investigation requires careful gathering of all available, possibly relevant information, with an open mind.
If systems do not exist to make information readily available, then he investigation will be time consuming and extremely expensive and ultimately probably unsuccessful at protecting children. CYFs file management computer systems appear to be awkward to use, time consuming and not fully reliable at producing all available information. CYFs files often do not make clear the quality of information, so that accusations may be confused with proven allegations. This may then corrupt court process.
One particular problem for child protection, is tracking people who move around, within NZ and internationally. many children have fallen through child protection tracks, through the high mobility of their parents.
Perjury and Non-prosecution of Perjury in Family Court
DV Act and Family Courts jurisdiction to apply sanctions without real evidence and without notice to the defendant. Most men view this as a breach of natural justice.
By cutting off access between children and their fathers, often for several months at a time, the relationship is often damaged. Yet this process has been shown to cause no reduction in women’s or children’s homicide, but does help drive a substantial increase in men’s suicides. (Consequential on the father’s suicides, it is a reasonable hypothesis that in following years there would be a small increase in children’s suicides too.)
Risk assessments are only reliable, when a very complete set of information is available. When the records have significant gaps in time, then the resulting risk assessment cannot be considered to have much reliability.
Society wide statistics are of little use in deciding an individual situation. If they have more than a slight impact on the decision-making process, then you obviously haven’t gathered the necessary information!
Standard Required of Parents
At present, their is no clear standard of what is expected of parents, in legislation or in judgements.
Thus parents are being judged against an unstated standard.
As an illustration of what is the effective standard, I am told that actions by parents after removal of their children can be used as justification for emergency removal of their children [given in a Christchurch judgement]. This standard is little more useful than the archaic dunking witches into a river and if they don’t drown, they are guilty and executed. This standard allows both false positives and false negatives, at high rates, thus is really of negligible diagnostic value.
Recognising and responding to child neglect in New Zealand by MSD. December 2010.
This paper describes observation from social workers and researchers. However this description is not sufficient to form a basis for a diagnostic procedure. It is not stated clearly enough to allow clear yes or no diagnosis. As it stands, it would allow diagnosis of children who are not seriously neglected and would also fail to pick up other children who clearly are seriously neglected. In the absence of a clearly stated standard for parenting skills and resources, then child protection will continue to be haphazard and will often fail to protect children from serious neglect and serious harm.
Diagnosis of Parenting Problems
At present, parenting problems cannot be diagnosed reliably. As a result, much time is wasted on support and training measures, that subsequently turn out to be of little or no value for the parents and children. It is also fairly common for physical health problems to not be picked up and this results in unresolved problems continuing to cause problems for the children.
When parents point out that they have followed CYFs suggestions, so now return their children, a new set of problems is brought up by CYFs. As a result, the parents may lose respect for child protective staff. It seems as though they are just mucking the parents around.
Later, the child protective staff may assess that no improvement has been forthcoming and move towards child removal for permanent placement with adoptive parents.
There are far too many incidents of serious failures.
The perverse incentives in the Social Welfare Act provide attractive incentives to very young women with poor market income earning capability to become pregnant and to sign on for DPB. There is some caution as community becomes more aware of CYFs aggressive child removal policies.
In terms of policy, it seems we have gone around the circle of:
1. stigmatising pregnant single women and economically forcing them to give up their children for adoption, to
2. generous DPB and encouraging them to keep their child and bring it up, probably fatherless
3. still generous DPB, but with a very proactive child removal policy (rather similar to the 1. policy).
Social work training courses over the last 30 years have focussed on empowering women clients and seem to have ignored child development and child protection knowledge. As a result, many of these social workers are very unwilling to face mother abuse, which is the largest single contributor to child neglect and lower level abuse, of the larger number of children.
The MSD computer systems do not facilitate efficient recording of work and ability to present records in court as reliable evidence. Some progress has been made, but much more progress is required. Also handling of legacy data adds to these problems. In one sense, the low computer support efficiency is a barrier to being able to offer higher staff pay.
Emotional neglect of babies is known to be a large contributor to psychopathy and conduct disorders in both girls and boys. It is difficult to detect and even more difficult to prove. Treatment options are not presently particularly effective for these children. This is the group contributing the largest social damage and cost of crime, when they are grown up. For these reasons, prevention is much safer than cure, and lower cost.
Opportunity to Improve
It is desirable to communicate clearly to the parents what the problem is and what they can do to solve it.
Clear Statement of What Changes are Required
Usually, parents are not given clear demands by CYFs. Often advice is verbal and even then usually unclear. Even when parents manage to do what was asked of them, then other problems are raised. maybe some were not originally observed, but it gives many parents the feeling there is no hope, even if magically all problems were solved, CYFs would still never return their children anyway.
Freedom of Choice – Accountability – Responsibility
There seems to have been much confusion between parental freedom of lifestyle and freedom to not be accountable to the other parent, for decisions relating to the care and development of the children. Just as important are financial and employment issues too. Of course, financial decisions end up affecting the care of the children, so once a person has decided to be a parent, they have given up for a long time, the financial freedom of the childless.
In particular, married or together parents are willingly accountable to each other, for most aspects of their parenting, household and financial decisions. While uncomfortable at times, this does allow them to work together constructively, for mutual benefit and the benefit of their children.
Parents who refuse accountability to the other parent of the child, are substantially refusing an essential tool of successful parenting.
Economic Issues of Separated Parenting
If a young couple were barely satisfied with their economic position, then by separating they will presumably be needing two sets of housing, major appliances and possibly vehicles. Thus, unless they had large savings, dividing their joint assets cannot leave a situation in which either parent can be satisfied, when analysed at a logical level. Similarly income and daily expenses will be another difficult economic problem.
In addition to the financial challenges of separation, time (and money) will be [wasted] setting up travelling between houses. Given the income problems already mentioned, then the time difficulties will be more difficult to surmount.
The economic issues above lead to the conclusion that the perceived emotional advantages of separation must be quite large, to overcome the economic disadvantages.
Perceived is the keyword, as some people may be dissatisfied wherever they are, married or separated.
If a lot of resources may be sunk in changing to a separated state, then surely the parties need to be well informed about the options and be sure that it is worthwhile to make these changes.
If the perceived value of separation, is to escape from inter-parental accountability, then allowing the separation to proceed pre-emptively, is a recipe for separated parenting disaster.
For these reasons, it is desirable to make separation planned, negotiated and well managed, rather than pre-emptive strike, as so often happens now.
The present familycourt largely rewards people who secretly plan their separation and spring it by surprise. This pre-emptive approach has the highest probability of triggering overreaction from the other party. (This is even more so, if the other party had an insecure very young childhood.)
Parental Mental health
While it seems fairly obvious that poor parental mental health might entail the risk of poor parenting skills, this issue is quite a lot more sensitive than is generally recognised by the public.
From studies of neglected or abused children, it has become apparent that babies and children may be seriously disadvantaged in their development by parents whose mental health issues are much less serious than would attract formal diagnosis, to allow provision of hospital treatment for the parent.
The most common mental health problem for young parents is depression. Even when this is at a fairly low level, in terms of adult functioning, it may be quite debilitating in its effects on child development. The parent’s lethargy may result in much poorer response for the baby or child. This impacts onto the child’s behaviour, in that they are effectively being taught that they have to work hard, to receive much attention at all. They tend to cry a lot and fight with siblings. This may give outside observers the impression that it is a difficult to manage child, where the root cause lies more with the adults low motivation to respond reasonably quickly and effectively to the baby’s needs.
Although maternal depression is more commonly looked for, fathers appear to suffer depression, around the time of birth almost as frequently as mothers. Perhaps fathers are under more pressure to hide their depression, if they are in full time employment. Employment is known to help reduce the effects of depression, partly by the enforced discipline to achieve work outputs, also by the adult social interactions provided by workplaces. In any case, attention should be given to whether fathers may be depressed and if so, then help should also be given.
If the father is depressed, then his responding to the child may be diminished and thus his ability to provide the child with some protection from the effects of the mother’s depression may be reduced, similar for helping the mother.
The protective effects of the father (or breadwinning parent) are enhanced if the father has spent much more time with the baby in the first few months. Thus, it is valuable for the child, for the father to take up parental birth leave.
Greater sharing of care between the parents could be a large help for the mother’s depression or other issues. However, such sharing would often result in a large drop in income for the father. If couples can accept this overall loss of income, there are significant benefits for the children and probably for the mother too. The longer term mental health benefits for the children offer large long term reductions in costs to Government, so that Government has a strong incentive to encourage greater sharing of the care of children between parents.
In some cases, it might be preferable for the father to take the larger role in day to day care of their children and for the mother to spend more time at work. If looked at only from the development of the children perspective, then this probably applies in at least 20% of married family situations.
Together or Separated Parenting Mental Health Requirements
Thus fairly low level or intermittent mental health problems for the parent, may seriously disadvantage the development of the child(ren). This is so when parents are together, but is more hazardous to the children, if they are in long time sole care of one parent.
In shared parental care type of situation, the children are fairly adept at taking the best from both of their parents, at least if they see them regularly and for a reasonable number of hours each time.
If the children are with only one parent for most of the time, for long stretches of time, then they will probably be much more vulnerable to the mental health problems of that parent.
Pernicious Effects of Emergency Child Removal by Paul Chill
This article examines the tendency of emergency child removal decisions-by social workers, police officers, and judges-to become self-reinforcing and self-perpetuating in subsequent child protective proceedings. This “snowball effect,” as one court has referred to it, is widely acknowledged by lawyers who practice in juvenile court yet is largely unknown beyond those circles. The article explores the causes and consequences of this phenomenon in the age of ASFA (the 1997 federal Adoption and Safe Families Act), which converts every day that a child spends in foster care into one more tick of the clock in a countdown toward termination of parental rights. This article provides some background on the law and practice of emergency child removal in the United States today, analyzes the factors that make initial removals outcome determinative in many child protection cases, considers the implications of this phenomenon in light of ASFA, and identifies possible solutions.
States should further specify that a child may be removed unilaterally by CPS officials or police officers only when taking the time to obtain an ex parte court order would clearly jeopardize the child’s safety. Again, this condition may or may not be constitutionally required,” but it is dictated by policy considerations. Several states, in fact, already require it.” Although there is a great deal of pressure on judges to grant ex parte removal applications, for some of the reasons discussed above,” those pressures increase dramatically once the child is already in placement. Requiring judicial preauthorization of emergency removals whenever possible is thus not a panacea but may prevent at least some unnecessary removals.
When judicial preauthorization is sought, reasonable efforts should be made to allow the parents or their counsel to provide at least some informal input to the court (through letters, sworn oral or written statements, etc.). Obviously, this might have to be arranged very quickly, depending on the circumstances, and sometimes it might be altogether impossible. But there are other times-such as when an emergency removal is sought during the pendency of a neglect case in which there was no initial removal-when the parents are already before the court and represented by counsel, and giving the latter a limited opportunity to be heard on extremely short notice may be quite workable. Indeed, in such circumstances, failing to provide that opportunity seems both fundamentally unfair and bad policy.”
Once a child is removed, it is imperative that a meaningful temporary custody hearing be promptly convened. Such a hearing should begin no later than 1 week following the removal-just enough time for counsel for parents and children (who should be appointed immediately when the case is filed in court) to prepare for trial.’ At this hearing, judges must be given enough information to make an informed and independent assessment of the threat to the child’s safety and the need for his or her immediate removal. This means providing sufficient staffing and courtroom space for trials to exceed 1 hour and to continue on successive days, if necessary.” It also means providing counsel for parents who cannot afford it at the earliest possible time and paying those counsel reasonable fees, so that lawyers will have both the time and incentive to advocate vigorously for their clients. To sustain an emergency removal following a hearing, proof by no less than clear and convincing evidence should be required that the child would be in imminent danger of serious bodily harm or death if returned home.”
Whenever judges rule on emergency removals, they should be required to expressly weigh the risks of nonremoval against those of removal.92 Statutes might even specify the particular risks to be considered, including but not limited to the emotional trauma likely to result from separation, the risk that the child will experience multiple placements, and the heightened risk that the child will be abused or neglected in foster care. Decision makers ought to be required to make specific written findings as to why the risk of allowing the child to remain at home substantially outweighs the risks of removing him or her.’
All of these reforms, although helpful, would not address more fundamental, structural problems that cause tens of thousands of unnecessary removals every year. Although a full discussion of these is beyond the scope of this article, several worth mentioning include the rise of defensive social work,’ the perverse incentive structure of federal financial assistance,’ the failure of the federal executive branch to enforce the requirement that states make
Chill / BURDEN OF PROOF BEGONE 465
“reasonable efforts” to obviate the need for removal in most cases,’ and the dual-role structure of modem CPS agencies.’
In addition, the proposed reforms do not address the prevailing attitude-among the general public as well as by many CPS insiders-that emergency removal is a magic bullet in the battle against child abuse and neglect, a conservative, risk-free way of “erring on the side of safety.” As I have argued above, seizing a child catapults him or her into a legal world where checks and balances operate poorly and where it is at least as likely to perpetuate an initial mistake as to correct it. Especially today, since the advent of ASFA, this may have devastating and permanent effects. Ultimately, public education must counter the distorted image of the child protection system, fostered by the media’s statutorily enabled obsession with fatality cases, and put an end to the dangerous misconception that emergency removal is a quick fix to the problem of child maltreatment.
Ambulance at the Bottom of Cliff or Proactive Approach
The judgements around Prince v Attorney General show that there are socially large consequences for poor quality management of child protection work and associated court hearings.
To date, judges have been extremely cautious about liability resulting from substandard child protection work and court judgements.
This reluctance to accept any form of accountability for work of judges, or onto Government generally suggests that there is a feeling that this is responsibility that cannot be carried.
This may be due to poor training of social workers and their managers and of judges too.
Alternatively, it may be that this work, even with the very best skills, could never be managed to operate successfully, due to the many variables involved and the complexity resulting.
Either way, the present process of allowing parents to develop severe problems and rescuing children after it is already too late, seems to be totally doomed as a child protection approach.
CYFs has been moving to “A Placement for Life”, where children with problems are adopted out, without the consent of their parents. When said as simply as this, it seems like a quick, simple, low cost solution that allows the Government to escape from practically all liability and ongoing costs.
In practice though, problems arise in that many of these children have had severely deprived babyhood and childhoods. Even when adopted out as young babies, it is probably that many of them have already suffered severe emotional disturbances, that will become manifest as they develop further. The incomplete information supplied to adoptive parents is likely to result in many high value claims by adoptive parents and also likely claims of the nature of Prince too.
Prince v Attorney General 1997 16FRNZ290
Attorney General v Prince 1998 CA 192/96
Research has shown that even newborn babies are very vulnerable to neglect and emotional abuse, from unskilled or unmotivated parents. Accordingly, it is necessary to be more proactive in removing children from the care of such parents, if they are unable to arrange better supports for themselves.
As criminal damage costs and prison costs show, there is much to be saved, if we can provide effective protection for all children.
If we can deter incapable parents from having children at all, then generally their lives will be better too. Certainly this may be breaching instinctual desires, but possibly these can be satisfied in other ways, that are less risk to children.
Perverse Incentives in Social Welfare Benefits
Married or long term stable parents are taxed higher and receive lower supports from Government. Although most of these people are honest, they put up with this “white man’s burden”, but resent the wasted tax money limiting what they can provide for their own children. They are being penalised for their own family stability and efficiency.
The high rate of social welfare benefit abatement, typically 80%, gives a high degree of incentive to use fraud to better their position. Fathers with 3 or more children face total (income plus child support) tax rates of nearly or equal to 80%. This provides a strong disincentive to work and/or a strong incentive to tax evasion.
Mothers with children to several different fathers typically receive much higher cash payments through Child and Spousal Support Act 1995, than mothers with several children to the one father.
Their CS income isn’t subject to abatement at all.
Thus, MSD are paying the least skilled women to create the very type of family with:
1. the range of temperaments in the children will be greatest, resulting in the most
2. difficulty to discipline the family of children and
3. with more men entering the household, the children are at greatest risk of injury
4. such mothers often lack the stability to make effective mothers
The net value of DPB to a potential mother, is their opportunity work income, less the benefit rate, less local living expenses
The asset limits for beneficiaries are set quite low and with high rates of abatement, so that this becomes a major barrier to getting out of being a beneficiary. This results in so called “beneficiary thinking”.
Judges pressure Government to appoint more judges, by accepting applications lacking a base in evidence and/or legislation, running cases slowly and inefficiently, putting too much time into irrelevancies.. then publicly complain that the Government must allocate more funding… This is “beneficiary thinking”. Although they don’t benefit personally, each featherbedding action benefits the others who come on after them. In the end, they are all benefiting by featherbedding, which is the very essence of manipulation of conflict-of-interest. Again, this is “beneficiary thinking”.
Funnily enough, if the litigants aren’t well enough resourced for legal-worker’s-aid, and too rich to be able to pay their legal-worker privately, then these abuses just don’t seem to happen. What incentive drives this respect for Government funds? There is skilled value judgement in the Family Court environment, it is just a matter of incentivising it to work each day, to protect the proper interests of taxpayers!
Lawyers too can drag cases out, for increasing payment by customers. This then benefits the judge and other lawyers too…. Usually there are 3 to 5 legal-workers benefiting, from a single legal-worker’s-aid lawyer committing fraud and risking censure. Again, this is “beneficiary thinking”.
During negotiations, if the parties don’t see each other’s offers, the lawyers can easily wind up and lengthen the dispute, by withholding some documents. One example, is to fail to pass on to the customer offers to settle from the other party. Again, this is “beneficiary thinking”.
Family Court Management
Marketplace Dynamics in Parenting Decisions Market
In a services market, where most parents will require Family Court services only a small numbers of times in their lifetime, then for customers to be served, rather than plundered, there needs to be a well informed, accurately and honestly informed marketplace for services.
In the present Family Court system, the marketplace is not accurately and honestly informed about what occurs in the Family Court. Although the Government holds a strong hand as a monopoly funder, the players abuse this situation by pressuring the Government to not use it’s potential marketplace dominance, for their personal benefit, rather than consumer’s benefit.
Although legal-workers have marketed themselves as “officers of the court”, above and beyond their duty to paying customers ie nugating accountability to the purchasers of their “services”, they have used this to stand together and force higher than economic pricing for their services and nugating their accountability for the timeliness, quality and outcomes from their services. In a marketplace where the potential dominance or monopoly power of Government has been withheld, they have not just failed to honour their side of the bargain, but have mercilessly asset stripped even the poorest of families and ripped off the Government funder as well. This is in a wider marketplace of falling wages and legal-worker over supply, where rapidly dropping legal costs would be expected in a competitive marketplace. I accept that the Government should not overplay its potential dominant player position in this market, but it shouldn’t fail to constructively play its position, as at present.
NZ is not alone, in facing legal-workers with a very high opinion of themselves and their worth. USA, Australia and UK also face the same social problems with legal-workers. Rather than the common link being english language, it is more the adversarial style of hearings that has thus far allowed them to get away with their greed. Although the solutions have been slow to develop, when the need has become dire the market responses have sprung into action. Legal workers are being knocked back into place.
Profit and the practice of law: What’s Happened to the Legal Profession / Michael H. Trotter.
ISBN 0 – 8203 -1875 – 2
1. Practice of law – Economic aspects – United States – History.
Best regards, MurrayBacon – axe murderer, but not relationship vandal.