Creative use of s46G counselling orders – with one psychologist per party, using peace-making therapeutic skills in a collaborative approach

New Zealand First’s election platform included a policy of making Family Court counselling more effective. We hope that the new government will encourage more creative use of the existing system, before making changes that may prove unnecessarily disruptive. The collaborative approach outlined below is one such creative innovation, achieved within the existing system.

Court-directed counselling can be used within Care of Children Act proceedings to provide one parent with input by a psychologist – for instance, if a s133 specialist report identifies a need for this.  It can also be used to provide both parents with individual input by separate psychologists (one for each parent).

Such input is not therapy.  That would be taking the scope of ‘counselling’ too far.

However, the psychologists can use therapeutic techniques to help each party understand their own personality and the other parent’s personality, improve their communication, express feelings, needs and interests, understand child development and children’s psychological needs, address historical issues that impede current parenting, and liaise with specialists if intensive therapy is required.

The psychologists can also work together collaboratively, facilitating joint meetings if appropriate, to help the parties improve their relationship as co-parents and/or to improve the effectiveness of a parenting order.

If authorised by the parties and the court, the psychologists can also liaise with a court-appointed specialist report writer (under s133 of the Care of Children Act 2004, or s 178 of the Oranga Tamariki Act 1989).

This is different from the traditional approach under s46G which sees the court appoint one counsellor who works with both parties, usually in joint sessions, with no liaison with any other specialist.

Moreover, this alternative approach is possible under the existing wording of section 46G of the Care of Children Act 2004. Although section 46G refers to ‘parties’ (plural) and ‘counselling service’ or ‘counsellor’ (singular), section 33 of the Interpretation Act 1999 allows the singular to be read as plural, and vice versa (see also section 4).

‘Counselling’ has an extended definition  (tracked through regulations and departmental guidelines) – linked to the qualifications accepted by the Ministry of Justice, which include clinical psychology.

And, although there is a statutory block on disclosing anything said by the partiesto the ‘counsellor’ (s 46L of the Care of Children Act), there is no such statutory block on disclosing something the ‘counsellor’ has said or perceived. The only restriction would be the usual obligation of confidentiality. Therefore, if a party consents, ‘their’ psychologist may disclose limited information to a specialist report writer.

In theory it would be possible for such a ‘counsellor’ also to give evidence in court, not of what a party had said (barred by s46L as above), but of what the counsellor had said, and of the counsellor’s assessment of the party, and of the work done by the party with the psychologist.  In practice, even if a party consented, this would breach ethical rules which separate a psychologist’s therapeutic role from a forensic role.  The psychologist would have a reason to refuse. However, in truly exceptional circumstances, a court might require such a psychologist to give limited evidence even if the client party did not consent, if this was deemed in the interests of the child.

Kiwilaw was recently involved in setting a High Court precedent for such a collaborative-style approach to Family Court counselling. We are happy to provide more information on request, and to receive comments from professionals and parents with insight in these matters.

Cheryl Simes

1 November 2017