No good reason to exclude the Family Court from Phillips inquiry

Attorney-General Judith Collins has announced the terms of reference for a Public Inquiry into whether official agencies took all practicable steps to safeguard the safety and welfare of Tom Phillips’ children. Phillips abducted his children in 2021 and hid them in the bush for almost four years before he was killed in a shootout with police.

A public inquiry is second only to royal commissions of inquiry and reserved for matters of public importance; this is only the second time one has been ordered in New Zealand since the enactment of the Inquiries Act in 2013. For it to be effective, it must look at all elements of the system that failed the Phillips children, and that includes the Family Court.

The terms of reference for the inquiry note that the children had been the subject of care proceedings in the Family Court since 2018. In October 2021, after Phillips had already disappeared with the children for 19 days, the Family Court varied an existing parenting order to require that Phillips “reside at a specified address”: the implication being that no other restriction was placed on Phillips’ ongoing access to the children.

The purpose of the Government’s proposed public inquiry is to examine what role government agencies played and could have played to establish whether they could take steps to prevent or resolve similar situations in the future. However, though the scope of the inquiry includes the police and Oranga Tamariki it expressly excludes the Family Court, and prohibits the inquirer from “comment[ing] on or inquir[ing] into judicial decisions concerning the children”.

When asked by Newsroom to justify excluding the Family Court from the inquiry in light of its significant involvement with the case, Judith Collins claimed that excluding the courts was necessary “to respect the independence of the courts”.

Further, that: “Including the Family Court would risk breaching comity and the separation of powers between the courts, Parliament, and the executive, a fundamental principle of New Zealand’s system of government.” This sentiment is repeated in the terms of reference: “In undertaking its work, the Government expects and directs the inquiry to respect the independence of the courts and not comment on or inquire into judicial decisions concerning the children.”

As legal academics with expertise in public and constitutional law and human rights, we believe deeply in the values of judicial independence and separation of powers, which are genuinely under threat around the world. But Judith Collins’ assertions about including the Family Court within the scope of inquiry are incorrect. Shielding the court from scrutiny in this instance will not only undermine the efficacy of the inquiry, but risks damaging the court’s reputation within the community.

New Zealand’s constitution is “unwritten”, which means its constitutional arrangements aren’t found in one singular document but reside across a series of sources: key statutes, judicial decisions and conventions. Underlying those sources are a series of constitutional principles: representative democracy, the rule of law, the separation of powers and the independence of the judiciary. They are deliberately vague and broad ideas that become more concrete when applied to specific situations.

The principle of the independence of the judiciary is manifested in sections 23 and 24 of the Constitution Act 1986 – which prevents the government from firing High Court (but not Family Court) judges or reducing their pay. We also see it in the Cabinet Manual, which advises ministers to “exercise judgement before commenting on matters before the courts or judicial decisions”, something that Shane Jones failed to do when he labelled judges communists, for which he was duly and rightly admonished by Judith Collins a few months ago.

Both these applications of the principle of independence provide some clarity as to its meaning. As the District Court’s own website notes: “In order for a judge to make fair decisions, they must be independent. This is often depicted in the metaphor of ‘blind justice’. A judge’s decision must not be influenced by anything other than the law and the arguments presented in court.” Judicial independence means courts should be free from government pressure or influence.

But the principles of judicial independence and comity are not absolute. Comity – a principle that the organs of government will engage in mutual restraint and respect when engaging with each other – cannot and does not mean that there is no room for appropriate review and oversight of one branch from another. This is what “judicial review” means: the High Court has the inherent power to review the legality of government decisions. In the same vein, it is, can, and must be possible for the Government to review the systemic operations of courts when necessary.

The United Kingdom – from whom we largely inherited our constitutional structure – understands this. Recently, its Ministry of Justice established a panel of 11 experts to conduct an inquiry into “how effectively the family courts identify and respond to allegations of domestic abuse and other serious offences, in cases involving disputes between parents about the arrangements for their children”.

The panel issued a call for evidence that received more than 1200 submissions, held roundtables and focus groups with professionals, parents, and children with experience of the family courts, and conducted a literature review and a review of relevant case law. The inquiry panel released its report in June 2020, making findings “in relation to both the processes and the outcomes for parties and children involved in such proceedings”. No one suggested the inquiry violated judicial independence or the separation of powers.

The key findings of the UK inquiry included:The legal framework set out in the Children Act 1989 requires the court to give paramount consideration to the welfare of the child. Despite this, the evidence submitted to the panel demonstrates continuing concerns around how the family court system recognises and responds to allegations of, and proven harm to children and victim parents in private law children proceedings.

While the panel has identified some good practice and widespread good intentions from those working under increasing pressure within the family justice system, it has also unveiled deep-seated and systematic issues that were found to affect how risk to both children and adults is identified and managed.

These are similar concerns to those that have been raised about the New Zealand Family Court, and it is entirely appropriate for those concerns to be addressed within a public inquiry. Doing so would not breach judicial independence: there is no risk of undue influence by the government on the court.

Including the Family Court in the inquiry could lead to real improvements in the court’s operations among the wider ecosystem of child protection in this country. Failing to do so only fuels distrust in the court and its actions in this case and others.

Constitutional principles are important. But they are not absolutes, and the Attorney-General should not use them to justify her refusal to conduct an inquiry that includes the Family Court.