Abstract

Many countries have grappled with the mechanisms for dealing with the care of children on family breakdown. To what extent should the state play an active part? To what extent should the system rely on the principle of self-determination? Until recently, the trend has favoured a major facilitative role for the state, with a blend of judicial and non-judicial procedures in assisting parents to resolve differences and to ensure that the welfare of the child and the child’s views are advanced. However, fiscal constraints have led to cutbacks, undergirded, it is suggested, by an ideology that runs against state involvement and is suspicious of family court and family lawyers. New Zealand has recently introduced user-pays mediation as a compulsory step before most issues can go before a Family Court Judge. Limitations on the role of lawyers and restrictions on the hitherto automatic appointment of a lawyer to represent the child make access to justice harder. Self-litigation is strangely built into the new system. Gaps in the legislation on mediation raise fundamental questions, for example, about who can attend and what place, if any, children play in mediation. Important matters such as these are left to the contract between the mediator and the parents, a form of ‘privatization’ and ‘secret justice’. It is argued that this is based on the dubious distinction between private law and public law. In this area of the law, resort to the discourse of ‘private law’ is misleading and should be discarded.

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