Questions on the best interests of the child - Children’s Convention from the United Nations
Please provide information about the measures taken to:
Questions 10(a) and 10(b)
- Amend legislation to include an explicit requirement to comply with the best interests of the child;
- Ensure that the best interests of the child is consistently interpreted and applied in all legislative, administrative and judicial proceedings and decisions, in particular with regard to family law, social security, children in care, in particular Maori children, the sentencing of parents and the refugee status determination process;
Replies to 10(a) and 10(b)
The Education and Training Act 2020 has explicit requirements for the best interests or needs of children to be taken into account at the individual level (for example when considering exemptions from enrolment) and at a system level (for example when considering approvals for early childhood licensing applications).
Principles relating to the welfare and best interests of the child are explicitly set out in section 5 of the Care of Children Act, and in sections 4A, 5 and 13 of the OTA, including matters such as safety and identity. The Court has applied the paramountcy principle under other pieces of legislation (for example the Adoption Act 1955) by imposing the Convention principles to domestic legislation (despite the fact the principle is not reflected in the primary legislation). Previous case law is also used to inform decision-making, resulting in reasonably consistent use.
Section 4A of the OTA sets out the wellbeing and best interests of a child or young person as the first and paramount consideration in the application of most of the Act. The best interests of the child are considered primary (but not paramount) in youth justice matters, along with other primary considerations including public safety, the interests of victims, and accountability for behaviour. This change recognises the vulnerability of young people within the youth justice system, with its principles supporting decision making.
The Family Court Act 1980 explicitly requires a Lawyer for Child to act for that child/young person in proceedings in a way that promotes their welfare and best interests. [1] A lawyer for the child must adhere to a set of requirements, which include that they should have a minimum of five years specialist experience and sound knowledge of core family law statutes. They must also undertake professional development in the family law space. There is no specific guidance on how they should determine and weight the child’s best interests – this is decided by the Court.
Read about Lawyer for the child
The New Zealand Courts do not provide specified guidance on how to interpret the law. Judges make informed decisions using legislation and previous case law as guidance.
Footnotes
- Section 9B, Family Court Act 1980. Return to text
