Rhetoric and welfare : studies in the language of New Zealand child custody judgments

Abstract

This paper examines judicial rhetoric in New Zealand child custody judgments. It discusses the recent revival of interest in rhetoric and then analyses child custody judgments according to techniques and perspectives developed by scholars working within the "Law and Rhetoric" movement. The paper examines the ways in which New Zealand judges have justified the outcomes of child custody cases which date from the turn of the nineteenth century until late 1990. Child custody jurisprudence is a particularly suitable subject for rhetorical analysis. Legislative changes and judicial activism have left judges with a largely unfettered discretion to determine which of the available custodial alternatives will promote the welfare of the child. Few legal principles apply to the exercise of the judicial discretion except the "welfare principle." The welfare principle is widely recognised as an inherently indeterminate standard which provides judges with little concrete guidance in difficult cases. It follows that the main subjects discussed by judges in child custody judgments are not legal in character. Instead, judges tell stories about children, their welfare needs and the suitability of potential custodians; these stories attempt to demonstrate why the outcomes of the cases further the welfare of the children at the centre of the disputes. Judicial storytelling in the texts of child custody judgments are examined in this paper according to rhetorical perspectives and analytical techniques. This paper also suggests ways that judicial rhetoric in child custody judgments can be improved.