The Family Court’s shocking practice of arresting children
23 February 2022
Opinion: Carrie Leonetti looks at the use of arrest warrants which, she argues, are not about the welfare of the child, but about the power of the court. Part 1 of 2
The Family Court has long engaged in a shocking practice: authorising the forceable custodial arrests of children who have committed no crime, are in no danger, and pose no danger to anyone else.
They do this without hearing from the child or giving them a chance to argue against their arrest. Often the “lawyer for the child” will advocate in favour of the court arresting their client. This practice is authorised by sections 72 and 73 of the Care of Children Act 2004, but these sections have a historical pedigree dating back well before 2004.
The nature of arrests
To understand why these arrest warrants are so objectionable, it is necessary to understand what an arrest is. An arrest is an act of state-sanctioned violence. The conduct that underlies an arrest - entering a private home without consent, laying hands on a person, detaining them, and taking them away against their will - are actions that, but for legal authority, would be serious crimes: trespassing, burglary, assault, kidnapping.
What differentiates an arrest from an assault or a kidnapping is legal authorisation - either by a statute that authorises police to arrest people in certain circumstances or a court-issued arrest warrant. The Crimes Act 1961 creates specific defences for individuals who execute and use force during arrests.
When it comes to arrests, terminology is immaterial. An arrest has occurred whenever a person, acting with legal authority, seizes another person under circumstances that indicate they are not free to leave or refuse to go where directed. This is true regardless of whether we label it an “arrest”, “detention”, “safety escort”, or “police conga line”. It is the forcible touching of a person and the restriction of their movement that creates the status of “arrested”.
In the Family Court, judges and lawyers call arrests of children “uplifts”, as if this happy euphemism, which conjures images of woodland creatures flying children to some magical far-off land, changes the quintessentially traumatising, terrifying violence of being arrested.
Justifications to arrest
Because arrests entail severe restrictions on freedom of movement and bodily integrity, societies who prioritise human rights only authorise them under limited circumstances. There are two typical rationales: either the person being arrested poses a danger to others (the public safety rationale) or they are in danger (the parens patriae or paternalism rationale). In these circumstances, the harm done to the person and their rights by the arrest is outweighed by the harm that would occur if they were not detained and restrained.
When someone commits a serious crime, police are authorised to arrest that person because community safety would be unjustifiably burdened if they were not. When someone with serious mental illness is so unwell they cannot care for their basic needs or pose a danger of self-harm, police are authorised to take them against their will to hospital for evaluation and often treatment because failing to do so would violate their countervailing human rights to health and humane treatment.
Increasingly, society also demands an additional limitation on the legal authority to arrest: necessity, which occurs when arrest is the least intrusive means to achieve the result, justifying it. If a person poses a danger to society, their arrest may be justified, but, if there is a way to nudge them to safety without arrest, it is still unnecessary.
Family Court warrants
Police are authorised to arrest people in a variety of family law situations: individuals who pose a danger to themselves (paternalism) or others (public safety) because of a “mental disorder” under the Mental Health Act 1992; children who are at risk of neglect, abuse, or other harm (paternalism) under the Oranga Tamariki Act 1989; and youth offenders who may commit further offences (public safety) under the Oranga Tamariki Act.
Society has a special parens patriae obligation when it comes to children because of their vulnerable status and diminished capacity for self-care. This is why the Oranga Tamariki Act simultaneously allows them to be arrested to get them out of unsafe situations and prevents them from being arrested unless it is necessary.
Imagine two parents, PA and PB, have a 12-year-old child, C. PA and PB separate, and cannot agree on care and contact arrangements for C, so the Family Court decides that C should live in the day-to-day care of PA and spend alternating weekends with PB from 4pm on Friday until 8am on Monday. One Friday, instead of going to PB’s house, C goes home to PA’s house, slams the bedroom door, and collapses on the bed in tears. PA tries to get C to talk about what is going on, but C insists it is nothing and does not want to talk about it.
PA rings PB to let PB know that C is okay but has come to PA’s house and PA does not know why. C is not missing, in danger, or posing a danger to anyone. C is simply not at PB’s house at the appointed time.
PB is angry and demands that PA “deliver” C immediately. PA responds that they are not able or willing physically to force C to PB’s house, particularly when they do not know what is going on.
PB can now apply for an arrest warrant for C. The warrant will authorise police to go to PA’s house, forcibly remove C, and deliver C to PB’s house. Police can use whatever physical force is necessary to get C to PB’s. Obtaining one of these arrest warrants for children is so easy there is a “form generator” on the District Court website that parents who want their children arrested and delivered to them can use. All PB must do is select “order that the person hasn’t followed”, “enforcement for a breach”, and “issue a warrant”. The violent custodial arrest of C is authorised. The form does not ask, and the court does not require, that PB show C is at any risk of harm. PB does not even have to show that C’s failure to show up is a wilful violation of a court order.
The District Court website claims that “if the other person is preventing you from having day-to-day care or contact with the children as agreed in the parenting order, the court can order the police or a social worker to pick up the children and deliver them to you”, but there is no requirement that PB show that PA is doing anything specific to prevent contact with C. If C is at PA’s house at 4.01pm on PB’s Friday, PB can have C arrested. In the best-case scenario, before the police arrest C, the court will give PA a chance to deliver C personally, but, if PA refuses to use violent force against C to enforce PB’s “right” to contact, the police will do it, using necessary force. Sometimes, this means physical restraints. In a handful of extreme cases, it has meant chemical restraint - a euphemism for drugging children into submission.
An arrest performed without sufficient justification violates the arrested person’s rights to liberty, freedom of movement, freedom of association, and not to be subjected to cruel or degrading treatment. An arrest performed on the ex parte say-so of one party to a civil proceeding is a denial of the arrested individual’s rights to due process and natural justice. These rights are protected in domestic law under the Bill of Rights Act 1990.
We have special obligations to children under the UN Convention on the Rights of the Child, which New Zealand ratified in 1993. Article 2 prohibits children from being punished because of the activities of their parents. Article 3 requires courts to act in the best interest of children. Article 12 requires courts to provide children with the opportunity to be heard and have their views given due weight in all matters that affect them. Article 16 protects children from arbitrary or unlawful interference with their privacy, family, or home. Article 19 requires that children be protected from all forms of physical or mental violence, injury, abuse, or maltreatment. Article 37 prohibits depriving children of their liberty unlawfully or arbitrarily. It specifically requires that arresting children “shall be used only as a measure of last resort” and that any children deprived of liberty have the right to challenge the legality of the deprivation.
Sections 72 and 73 of the Care of Children Act violate all these international human rights obligations, particularly as they are used in the Family Court. These warrants turn our special obligations to children on their head. Unlike the Oranga Tamariki Act, the Care of Children Act creates a special procedure for inflicting harm on children with none of the traditional limitations on arrest. Children do not need to be in danger or pose a danger to be arrested under the Act. They simply need to be in the wrong place at the wrong time (and have a parent unwilling to duct-tape them and stuff them into the trunk of a minivan if they refuse to go willingly to their court-assigned location).
Sections 72 and 73 are not new - they are vestiges of a time when we viewed children as property. In 2004, when Parliament repealed the Guardianship Act and replaced it with the new Care of Children Act, they modernised much of the law involving the care of children. One significant set of changes involved terminology. Where the old Guardianship Act regulated “custody” of and “access” to children, the new act regulated “care” of and “contact” with children.
These changes were meant to signify a deeper philosophical shift, through which children were recognised as human beings rather than property, and parents were recognised as having obligations to children rather than rights of ownership. Unfortunately, whoever cut and paste the old provisions of the Guardianship Act into the new sections 72 and 73 of the Care of Children Act missed the forest for the trees. The old act authorised the violent arrest of children to enforce custody and access orders; the new act authorises the violent arrest of children to enforce care and contact orders. Changing the terminology has not changed the nature of these arrests or their gross impropriety.
An honest accounting
This longstanding and deeply concerning practice has been subject to little scrutiny and even less outrage. In the face of public criticism for their overly enthusiastic embrace of their power to arrest children who are in danger of harm, Oranga Tamariki recently agreed to rein in their powers to arrest and use them only in situations in which they have no other options. The Family Court has shown no such restraint with Care of Children Act arrests.
Every now and then, a judge or lawyer from the Family Court will be challenged to defend these arrest warrants for children under the Care of Children Act. They generally offer one of two justifications: that the court would have no other way to enforce parenting orders without subjecting children to violent arrests, or that they only use the warrants in emergencies, as a last resort. The former justification is ridiculous, and the latter dishonest.
New Zealand has dozens of courts. In addition to the general civil and criminal jurisdictions of the District and High Courts, there are specialist tribunals such as the Environment Court, Employment Court, and Tenancy Tribunal. None of these courts order children’s violent arrests to enforce their orders. Yet, miraculously, New Zealanders manage to abide by their decisions. The ugly truth is that the Family Court likes these arrest warrants because of the effect they have on the parent who is “harbouring” their child fugitive. Nothing will motivate Parent A to force their child over to Parent B’s house as the knowledge that failure to do so will cause the child to experience violence. This is not about the welfare of the child, it is about the power of the court.
The court does not use these arrest warrants as a last resort. They use them frequently and habitually. A Newsroom investigation in 2017 showed the court was issuing arrest warrants under sections 72 and 73 more than 600 times a year. These warrants, usually issued ex parte (without notice to the other parent, let alone the child), are the court’s standard way of dealing with children they find are defiant and need to be forced to come to heel. Not only do they issue these warrants all the time, but the way the personnel of the Family Court (judges and lawyers, including lawyers for the child) discuss them shows the lack of extraordinariness they attach to their issuance.
Court judgments issuing these warrants use mundane, banal, and bureaucratic terms. Judges preemptively threaten parties with these warrants, warning if a parent fails not only to abide by their decisions, but also to agree that their decision is wise and infallible, then they will have “no choice” but to issue a warrant seizing their child.
This is not the behaviour of a judge in a desperate emergency with no other options. This is the behaviour of a tyrant using the threat to harm someone’s child to bully them into submission. It is the children who suffer trauma and develop fear and distrust of the civic institutions they are supposed to trust to protect them.
Associate Professor Carrie Leonetti is from the Faculty of Law.
This article reflects the opinion of the author and not necessarily the views of the University of Auckland.
Used with permission from Newsroom The Family Court’s shocking practice of arresting children 23 February 2022
Alison Sims | Media adviser
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