COOK ISLANDS FAMILY LAW BILL
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The document discusses protecting vulnerable family members in the Cook Islands while maintaining positive traditions and customs. It notes the country's growing dependence on tourism, depopulation issues, and a welfare system for the elderly. Barriers to women's access to justice are discussed, including affordability and domestic violence issues. Provisions in new legislation regarding spousal support, de facto relationships, and child protection are outlined. Challenges in implementation include changing norms, capacity issues, and political delays. UNDP is providing technical assistance to help draft related laws and regulations.
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COOK ISLANDS FAMILY LAW BILL
- 1. PROTECTING VULNERABLE FAMILY MEMBERS – MAINTAINING POSITIVE COOK ISLANDS TRADITIONS AND CUSTOMS UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
- 2. Growing dependence on tourism 8821 visitors in March 2014, 9003 visitors in April 2014, accounts for 70% of GDP Depopulation Permanent departures have increased from 120 in 2007 to 376 in 2011 Welfare system for elderly and infirm 2014 10% increase in ongoing welfare payments and elderly pensions increased by 25% over 70yrs $625 pm, under 70yrs $500 pm Rising personal debt increasing mortgagee sales Increasing NCD issues are the main causes of mortality Growth in small businesses Development of Seabed Minerals Industry SBM Office and legislation Fisheries Management fisheries licenses 2m sq km EEZ UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
- 3. Land system Traditional “ownership” Court sanctioned “ownership” Equal division of matrimonial property Increased numbers of women in Senior Government positions Women in Politics Women in the Law Women feature higher than men in the sales, clerical, social, professional and hospitality industries Traditional leadership roles UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
- 4. UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
- 5. Affordability of access to justice restricted to criminal matters Breaking down barriers to effective access to justice for victims of domestic violence Provision of support to single, separated or divorced mothers Barriers to protecting girls from sexual assault UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
- 6. Spousal and Child Support includes property, land or other assets including seafood, meat, fruit and vegetables (cl 4) Recognition of: ◦ de facto relationships (cl 5) ◦ equitable contributions (cl 13(b)) ◦ other forms of support if there is no interest in land (cl14(5)) Child protection provisions giving greater powers to protect child victims (Part 6) Protection from stalking, emotional, physical, and economic abuse (Part 7) Police Safety orders removes the perpetrator immediately and protects the victim (Subpart 3) Prevention of removal of children from Cook Islands UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
- 7. Changing negative traditional and customary norms education about UNCROC and CEDAW rights and appropriate ways to encourage recognition and responses to implementation of those rights Maintaining positive traditional and customary norms validation of consensus decision making techniques, community values and sharing of resources Lack of technical drafting capacity reliance on international assistance Internal country delays political will, lack of capacity Effect of dissolution of Parliament unstable political system Preparation for implementation capacity issues UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
- 8. UNDP funded technical assistance ◦ Drafting of the Family Law Bill, the Regulations and the Explanatory Notes ◦ Costing Assessment ◦ Recognition of in-country issues which affect progress of changes to the law ◦ Implementation assistance UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
- 9. Access to free legal advice for those who cannot afford the cost of a lawyer Lack of statistics about children being raised by one parent Lack of research about matrimonial property outcomes UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
- 10. Practical assistance for women’s access to free, sound and safe legal advice – funding assistance for a community law office Research project on mother’s raising children without fathers – technical assistance Research outcomes for separated or divorced women seeking property division – technical assistance UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
- 11. UNDP/APRC Women's Access to Justice: land and property rights 9-10 June 2014, Bangkok, Thailand
Editor's Notes
- The Cook Islands Family Law Bill has been a work in progress since 2010. Stakeholders were consulted in 2010 with assistance from UNDP. The Bill has been drafted and redrafted to comply with the Solicitor-General’s drafting instructions and to ensure that the positive traditions and customs that have survived “development” and the increasing bombardment of outside influences remain essential facets of our way of life. The regulations which give the Bill the necessary administrative and procedural structure have been drafted contemporaneously. The Bill is comprehensive, it addresses for Separation and Divorce, Child and Spousal Support, Parenting and Contact Plans and Orders, Child Protection and Domestic Violence. It is intended to be tabled in Parliament at its next sitting after the general elections on 9 July 2014. A big Meitaki Ma’ata to UNDP for the provision of technical assistance to enable the Cook Islands to achieve its goal of improving the circumstances for women and children.
- www.mfem.gov.ck Cook Islands National Health Strategy 2012 - 2016 Resident Population Statistics – 2001 14,990; 2006 15,324; 2011 14,974 Total of
- Women’s access to land in the Cook Islands has been recorded in a study by the late Professor Ron Crocombe, Land Tenure in the Cook Islands available on the Victoria University of Wellington Library website. According to the early Land Court cases the rights of women (and through women) to land was based on four premises: (1) Prior to the coming of the mission in 1823 women had no land rights and could not hold tribal titles. Yet there is adequate evidence to indicate that in the pre contact era a woman could reside, plant, harvest, and exercise other rights to the lands of the lineage into which she was born for such time as she remained there and any children she bore there acquired their rights automatically. If she married and went to live in her husband’s lineage, she lost primary rights to land in her natal lineage (2) That custom changed shortly after first contact with European culture. Women were accepted as tribal chiefs and owners of land. (3) The Court’s interpretation of the extract from the declaration made by the Federal Parliament of the Cook Islands in 1894: “The Land is owned by the tribe but its use is with the family who occupy that land. The family consists of all the children who have a common ancestor, together with the adopted children, and all the descendants who have not entered other tribes.” The declaration was an affirmation of pre-contact custom. It was prepared by a Parliament consisting of entirely indigenous members and the original was presumably drafted in the Maori language. The declaration appears to be perfectly consistent with pre contact custom (4) Practically every list of owners determined by the early Land Court contained the names of females. Therefore the Court was simply giving effect to the of the legislation if it granted freehold ownership rights to women and awarded succession to all the issue of any right-holder, female as well as male (irrespective of whether the person through whom the rights were claimed was at that time a primary member of the lineage in which the rights were claimed). The Matrimonial Property Act 1993 was adopted from New Zealand as a response to lobbying by a woman whose marriage had ended and who sought to have equal division of the matrimonial property. The Act does not recognise defacto relationships and has not kept pace with other amendments to the New Zealand legislation. Women’s status in the Cook Islands in non traditional spheres of life has changed significantly in recent times. There is now increased numbers of women Senior government positions - 19% of Heads of Ministries are women – Ed, FSDA, MFAI, Health, Intaff, Speaker, OPM, CINSF (acting), CLO No women in the current Government – Two Women in Opposition. Six women are standing for election 2014 (24 seats) No resident Judges in the Cook Islands, four sitting Justices of the Peace are women, 38% of lawyers admitted and practicing are women. The House of Ariki is a constitutionally mandated arm of Parliament, and is subject to the House of Arikis Act 1966, in 2014 there are 8 women Ariki and 9 male ariki and 6 vacant seats. The House of Ariki advise Parliament on matters of legislative change which impact on traditional customs and lore, they have no power. In 2008 several Ariki renounced their allegiance to the Queen and were expelled from the House of Ariki as a consequence. All but one have apologised to the Queens Representative and have since been readmitted to the House of Ariki.
- (1) The Legal Aid Act 2004 was passed to provide legal aid support to criminal defendants. $40,000 is appropriated per annum for this responsibility. The Legal Aid committee responds to applications and directs a lawyer to represent the applicant. It does not work well and still many defendants appear in the criminal court unrepresented men, women and youth included. If a member of the defendants family has income, the applicant will not be successful. The Cook Islands Law Society is working on a proposal to ensure proper representation for criminal defendants is available. (2) The Cook Islands is a party of the Pacific Programme for Domestic Violence Prevention (PPDVP), the Cook Islansd Police has a Domestic Violence section. In February 2014 the Pacific Judicial Development Programme ran a four day workshop in Rarotonga co-ordinated by Judge Peter Boshier who is the Chief Family Court Judge in New Zealand together with the Cook Islands Chief Justice Tom Weston. There is ongoing education of the Justices of the Peace about domestic violence causes, challenging the adult community to understand that domestic violence is not a cultural or traditional norm even though the Cook Islands Family Health and Safety Study 2013 found that domestic violence in endemic in Cook Islands society. Physical violence against women affects over 25% of women, emotional violence is the most prevalent, victims lack support and features underpinning violence against women include alcohol, jealousy and child experiences of violence against women. The Family Law Bill has provisions to address family violence which discuss later. (3) Punanga Tauturu and Cook Islands Family Welfare Association are non-government organisations which provide counselling and practical support to women and families. There is no income support from government to single parents, the unemployed or the short term sick. There is a $1000 baby bonus payment to mothers on the birth of a child and a $30.00 per month child benefit for children under 12 years of age. Children up to 16 years of age receive free health care. The current maintenance laws provide for spousal and child support but are unable to be enforced if the paying parent leaves the country. Access to justice of resolving custody, access and relationship property disputes are limited by the cost of legal services. Some of these issues are addressed in the Family Law Bill. (4) Cook Islands Crimes Act 1969 is under review with the assistance of the Australian Attorney-General’s office Pacific desk. The antiquated sexual assault laws are to be brought up to date and penalties appropriate to the nature of the offending and the expectations of society will be addressed. The policy underpinning the changes in the legislation are almost concluded and drafting has begun. Issues that remain may be addressed by education, lack of trust in adults or authorities to maintain confidentiality, isolation especially in the outer islands, un-protective adults.
- (1) The Family Law Bill recognises that although the Cook Islands has seen increased development and a growing money economy there remains the positive traditions of growing on the land for extended family consumption, vegetables, fruit and pork. Despite the effects of ciguatera and the small sized deep sea fish and depleted fishing resources Cook Islanders continue to be self sufficient. This is a feature of the child and spousal support provisions. (2) There is recognition of defacto relationships in clause 5. There is recognition of the equity of contributions as between the separating couple in clause 13 and there is recognition of other forms of support if there is not interest in land in clause 14. (3) Part 6 of the Bill provides for the protection of neglected and abused children including the removal of children from their dangerous environments in emergency and impossible situations. This is envisaged to place the most burden of all the provisions on government resources. (4) The domestic violence provisions are set out in Part 7 and are intended to protect women from all forms of violence including stalking, emotional, physical, sexual and economic abuse. No court fees are payable under this Part. (5) It provides for Police Safety orders so that the victim is not required to leave the family home, the perpetrator must leave the home for up to five days. (6) The Cook Islands is not a party to the Hague Convention on Child Abduction and so has addressed the issue of children being removed from the country without the consent of the other parent in the Family Law Bill. It also provides for the registration of orders in the Courts of other jurisdictions. There is provision for a lawyer to be appointed for the child (cl 147)