This Student Companion by John Caldwell appeared in the March 2015 edition of the New Zealand Law Journal [2015] NZLJ 74a.

STUDENT COMPANION: FAMILY LAW

M v M [2014] NZHC 3213

Brown J was required in this case to determine the welfare and best interests of two young children, aged 6 and 4, whose mother, following the parties’ separation, had become a committed adherent to the Jehovah Witnesses’ faith. The children, exposed to the faith through the mother, had expressed their strong and genuine wish to participate in Jehovah Witness activities.

In the decision appealed against, the Family Court had placed the children primarily in the care of the father, but had also discharged the previous interim guardianship order that had placed constraints on the children’s participation in the Jehovah Witness faith while they were in the care of the mother. The removal of the restrictions meant that the children were able to attend the Kingdom hall and be involved in some witnessing. Both parties had appealed to the High Court.

From the evidence it was clear the parents’ relationship had been highly conflicted, and that tensions over religion in particular had proved psychologically destabilising for the children. The evidence revealed, for instance, that the children were confused over activities such as Cubs and Keas and birthday parties, which they seemingly enjoyed but considered contrary to Jehovah’s will, and the mother had refused to attend her children’s concerts or prize-giving that had been held at a Baptist church.

The views of the children, who had been interviewed twice by Brown J, were clear. It emerged in the Family Court that the six-year-old’s most important two wishes were that her father would become a Jehovah’s Witness, and that she could learn about Jehovah not just when she was with her mother but every day ‘without stopping’. The four-year-old also said he wanted more time to study Jehovah. In light of those views (which Brown J accepted had been ‘heavily influenced’ by the mother, but could not be dismissed), the lawyer for the children argued that ss 13 and 15 of the New Zealand Bill of Rights Act 1990 deprived the Court of jurisdiction to make any directions under s 46R of the Care of Children Act 2004 restricting the children’s involvement in the Jehovah Witness faith.

In a carefully reasoned judgment, Brown J concluded that until a child had attained Gillick competence relative to the particular right in question under the NZBORA, so that the child was able to make an autonomous decision concerning the exercise of that right, any decision by the Court under the Care of Children Act 2004 on the grounds of the welfare and best interests of the children would not be inconsistent with the children’s NZBORA rights. In terms of the Care of Children Act itself, the judge also reached the conclusion that any such child’s views on the exercise of the child’s NZBORA rights are subordinated to the child’s welfare, and that it is not a prerequisite to the Court overriding the child’s wishes that harm would likely ensue for the child.

Furthermore, Brown J held that to the extent that the Court’s application of the paramountcy principle under s 4 resulted in an inconsistency with a child’s NZBORA rights, such inconsistency would be prescribed by law, reasonable, and demonstrably justified under s 5 of the NZBORA. In any event, Brown J declared, the effect of s 4 of the NZBORA was that the Court could not decline to make an order under the Care of Children Act in relation to the guardianship and care of a child which would be in the child’s welfare and best interests by reason only that such was inconsistent with any provision of the NZBORA.

On the basis of the evidence before him, and two meetings with the children, Brown J was entirely satisfied that the children were not yet at the requisite developmental stage to be able to make an informed decision about their inclusion in religion and the merits or otherwise in relation to that inclusion. In brief, they were not Gillick competent in relation to religious expression.

Turning to consider what guardianship directions should be made to resolve the intractable impasse between the parents, Brown J agreed that the children had the right to be exposed to each of their parents’ beliefs, and that the law must remain strictly neutral on questions of religion. However, his Honour believed the real cause of concern in this case, and the generator of cognitive dissonance for the children, was the intensity of the children’s instruction in the Jehovah Witness faith. Thus, in order to dilute the intensity of exposure, Brown J made guardianship directions that were at odds with the children’s express wishes.

Accordingly, Brown J ordered that while in the care of the mother the children could engage in bible study, watch videos and read passages from the Watchtower, but that they were precluded from attending any Jehovah Witness meetings or church activities which included seminars or witnessing. If the mother herself wished to engage in those activities whilst the children were in her care, she would need to return the children to the father’s care; and the children were then to remain in his care until the next scheduled period. Additionally, the Judge, while believing it was essential the children enjoyed an appropriate amount of time with the mother, varied the parenting order so that the children would be in the mother’s care every alternate weekend rather than for two weekends out of three.

In this clash between secularist and unorthodox religious values, the Court’s welfare-based decision to preclude the children’s participation in church activities or witnessing might well be seen as entirely unexceptionable. Unfortunately, though, the decision surely seems destined to create further tension for the children within the family; and there must always be a residual degree of disquiet whenever the adamant wishes of children, no matter how young, are overridden on a matter of fundamental importance to them. However, on Brown J’s reasoning, once children can be deemed Gillick competent on the matter of religious expression, then their views are likely to become determinative. For once children have attained a sufficient intelligence and understanding of religious belief, then the twin principles of welfare and autonomy are collapsed together. At that point, but not before, it has been held, the children’s wishes will become the controlling factor.

 

The full March 2015 edition of the New Zealand Law Journal is available on the LexisNexis research database.

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