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Best Interests of the Child VS Parental Rights and Natural Justice

When determining matters involving children, the Family Court applies the principle that the best interests and welfare of the child take precedence over all other considerations, including natural justice and parental rights. This principle is grounded in legislation and reinforced by judicial interpretation, ensuring that children remain the central focus in legal proceedings concerning their care.

The Paramountcy Principle

The Family Court’s approach to prioritizing a child’s welfare is encapsulated in the statutory principle of “paramountcy.” Section 4 of the Care of Children Act 2004 explicitly states that the welfare and best interests of the child are the first and paramount consideration. This principle is applied strictly to guide judicial decisions.

In T v M (1988) 3 FRNZ 681; (1988) 5 NZFLR 252, Judge Inglis QC described the implications of this principle:

“The paramount consideration of the children’s welfare must, by the force of the statutory words, take precedence over parental rights. Re K [1965] AC 201 (HL) is a vivid and telling illustration of the overriding power of the paramountcy of the welfare of the child. If (as was held in Re K) the paramountcy of the welfare of the child must in an appropriate case be allowed to override the rules of natural justice as they are applied in ordinary civil and criminal litigation, then plainly s 23(1) enables the Family Court to intervene in custody proceedings to stop them in their tracks where it is plain that the welfare of the children demands that course.”

This highlights that the welfare of the child can override even fundamental legal principles, including natural justice, when necessary.

Welfare Versus Natural Justice

Natural justice includes the right to a fair hearing and the opportunity to present one’s case. However, in cases involving children, the court’s primary focus is on the child’s welfare, not on the rights of the parties. This sometimes means that procedural fairness, a cornerstone of civil and criminal litigation, may be limited if it conflicts with the child’s welfare.

For example, in Re K [1965] AC 201 (HL), the House of Lords affirmed that a child’s welfare could justify a departure from natural justice principles. This precedent has shaped how New Zealand courts approach similar cases, enabling the Family Court to focus on the child’s needs even if it affects a parent’s legal rights or procedural entitlements.

Parental Rights in the Context of Paramountcy

While parents have rights and responsibilities regarding their children, these are always subject to the overriding consideration of the child’s welfare. Parental rights are not absolute and are secondary to what the court deems best for the child.

The principle of paramountcy allows the court to:

  1. Limit Contact: If a parent’s involvement is deemed harmful to the child’s welfare, the court may restrict or supervise contact.
  2. Suspend Proceedings: The court can halt custody or access disputes if continued litigation is harmful to the child’s well-being.
  3. Impose Specific Orders: Parenting orders may include provisions to protect the child’s welfare, even if a parent disagrees.

In Auckland District Health Board v AZ and BZ (High Court, Auckland, CIV 2007-404-2260, 27 April 2007), Baragwanath J said:

[20] The authorities discussed in L v A (2003) 23 FRNZ 583 reveal a shift in policy from an emphasis on parental rights to exclusive focus on the rights of the child, the parents’ position being assessed nowadays in terms not of rights but of responsibilities. [20] The authorities discussed in L v A (2003) 23 FRNZ 583 reveal a shift in policy from an emphasis on parental rights to exclusive focus on the rights of the child, the parents’ position being assessed nowadays in terms not of rights but of responsibilities. Certainly the power of a parent as guardian includes decision making in relation to the child’s medical treatment. But the statute emphasises that the welfare and best interests of the child are the sole focus of the consideration by the Court which may override parental views. That does not however mean that the parents’ interests and wishes are of other than very great importance. There is a presumption that they will receive effect and to the extent that they do not receive complete effect they will be recognised as far as is possible compatibly with the predominant interests of the child. That is because a child is not to be considered as a microcosm insulated from her parents but as far as practicable as part of the family of which she and they are the components. 

In Auckland High Court –  G S v THE FAMILY COURT AT MANUKAU [2022] NZHC 555 [24 March 2022], Justice Walker emphasised as follows:

[192] The Family Court must adhere to the principles of natural justice. The paramountcy principle informs the application of those principles in the COCA jurisdiction in that, where there is evidence of imminent risk to the safety of a child, fair hearing rights would likely be a secondary consideration. But it does not make the principle redundant. 

Why Understanding This Approach Matters

It is important for parents involved in Family Court proceedings to understand how the court views these issues. By recognizing that the child’s welfare is paramount, parents can present their case in a way that aligns with this principle. Some key considerations include:

  • Focus on the Child: Demonstrate how proposed arrangements serve the child’s best interests rather than emphasizing parental entitlements.
  • Cooperation Over Conflict: Courts favor arrangements where parents work collaboratively to support the child’s welfare.
  • Seek Professional Advice: Understanding the court’s perspective can help parents prepare their case effectively with the guidance of legal and counseling professionals.

Conclusion

The principle of paramountcy ensures that children’s welfare remains the primary focus in Family Court proceedings. This approach may override parental rights and natural justice when necessary, reflecting the court’s statutory obligations. By understanding how the court sees these matters, parents can better position themselves to advocate for outcomes that serve their child’s best interests.

Disclaimer

This article is intended for general informational purposes and is not a substitute for legal advice. For specific concerns, please consult a qualified legal professional.

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