The Child’s Right To Participation. Strengthening New Zealand’s Commitment To Article 12 Of The United Nations Convention Of The Rights Of The Child Within An Adoption Framework

Abstract

Article 12 of the United Nations Convention on the Rights of the Child provides children with the right to express their views in any judicial and administrative proceedings that concern them. Despite the ratification of the Convention in 1993, New Zealand’s legislature has consistently refrained from amending the Adoption Act 1955 to fulfil this international obligation. In its current state, the statutory regime provides minimal legislative mechanisms to empower children to participate in their adoption proceedings. This essay addresses the importance of placing the child’s voice and agency at the forefront of New Zealand’s adoption framework. With reference to overseas jurisdictions and other fields of medicine and research, the essay assesses the viability of implementing consent-based models of participation founded upon statutory age limits and general competency tests. It also examines the plausibility of creating statutory provisions akin to those under s 11(b) of the Oranga Tamariki Act 1989, thereby shifting the onus onto adult facilitators themselves. Overall it is argued that a two-tiered-duties-of-care model ought to be imposed onto decision-makers and officers of the Family Court. This strikes a finer balance between respecting the child’s participatory integrity, and acknowledging the articulation of Article 12 as a right of the child as opposed to a duty.