Seizures under Care of Children Act unlawful – professor

The seizures of children authorised by the Care of Children Act to enforce private custody orders are unlawful and unjustifiable arrests, writes Professor Carrie Leonetti in an article published this month.

In New Zealand, guardianship, care, and contact disputes between parents are governed by the 2004 Act and Professor Leonetti argues that the seizures authorized by sections 68, 72, and 73 of the Act negatively impact many young people.

She says a parent who wants to force their child to have court-ordered visitation can click a link on the Ministry of Justice website and tick the box labelled ‘issue a warrant’ in a pre-filled form.

The parent must offer evidence in support of the application for the warrant, but Leonetti says the Care of Children Act does not require the parent to show that the child is in danger or that the arrest is otherwise in the child’s welfare and best interests.

“The dog catcher does not ask a dog why it has run away or whether it wants to be returned to its owner; the Family Court does not ask a child who is refusing contact with a parent why they are resisting the court-ordered visits or whether they want to be forcibly delivered by police.”

Her article argues that it’s the regular practice of the Family Court to issue these warrants when children are neither in danger nor posing a threat to anyone else, often in situations in which they’re actually resisting forced visits with an abusive parent.

Leonetti says these warrants have increasingly played a central role in the broader problem of the use of Family Court processes by family violence perpetrators to extend coercive control over victims and argues that they have become a tool of social entrapment for such victims of family violence.

“This system sees children treated like chattel and has become an instrument by which abusive parents dominate and control children who are exercising self-help to secure their safety. These seizures are an unconscionable breach of these kids’ human rights,” she says.

“Although the Family Court fails to recognize it, these seizures are ‘arrests’ as that term has developed and been understood over centuries of common law and international human rights law,” says Leonetti. “Furthermore, they are arrests that lack sufficient legal justification—in other words, they are arbitrary and unlawful detentions.”

In her article published in the International and Comparative Law Review, Leonetti canvasses the history of these seizure provisions arguing that several sections within the Care of Children Act are relics of an era when children were deemed property.

She also contends that issuing such custody orders violates children’s rights under the New Zealand Bill of Rights Act 1990 and international human rights law.

“The way that the courts discuss these warrants demonstrates that the primary focus of the practice is on the rights of the parent who is being denied their court-ordered visits and the Family Court’s need to ensure its authority rather than on the rights or welfare of the children being arrested.”