The Winning Pieces.

I  Introduction

The interaction between international and domestic law in Aotearoa New Zealand is an important topic of discussion, as the country is part of the international community. In this essay, I agree with the statement, but also note that international law is only a very limited part of the domestic law of Aotearoa. Part II of the essay will demonstrate the limited extent of international law’s integration in domestic law by examining its application in domestic courts. Part III will argue that this is appropriate by outlining the benefits and concerns of integrating international law. Part IV concludes briefly.

II  International Law as a Limited Part of Domestic Law

International law is demonstrably a limited part of New Zealand’s domestic law, despite its appearing implausible through how the terms are normally defined. Domestic law is the law that covers the jurisdiction of New Zealand.¹ International law is the “rules” that govern the relationship between states.² It is, therefore, seemingly natural to conclude that international law is not and cannot be a part of domestic law without becoming domestic law itself. As Morris writes: “International law is separate from domestic law.”³

Though this presumption of separation generally remains true, international law has influenced domestic courts and thus become a limited part of domestic law in some cases.⁴ This includes the development of a “presumption of consistency”, meaning that the court will generally read and apply domestic statutory provisions in a manner that is consistent with New Zealand’s international obligations.⁵ The courts have also used international law as an interpretative aid when deciding cases.⁶ A notable case demonstrating both forms of influence is Attorney-General v Refugee Council of New Zealand, where international soft law instruments (non-binding statements or declarations, such as those issued by the United Nations) were used to clarify a provision of the Immigration Act 2009.⁷ In making its decision, the court interpreted the provision (which required immigration officers to give regard to the Convention Relating to the Status of Refugees) and the document it referred to in a manner consistent with the international soft law instruments it cited.⁸ Glazebrook J also specifically noted that international law can “be seen as an interpretive aid” to the court’s decision-making, similar to court decisions from other jurisdictions.⁹ This shows that although international law was neither binding nor applied as domestic law, it still influenced the court’s decision. It is therefore evident that, despite clear separation between international and domestic law, international law can still be a limited part of domestic law.

III  Limited Integration is Appropriate

In this part, I argue that the current limited integration of international law in domestic law is appropriate. Sub-part A outlines the benefits of limited integration, and sub-part B discusses the concerns of integration and the need for balanced incorporation of international law.

A  Encourages Consistency with International Obligations

Acting consistently with international law is important for New Zealand to avoid international ostracism and potential sanctions.¹⁰ Limited integration encourages New Zealand to act in this manner. The different forms of influence international law can have in New Zealand, as outlined in Part II, encourage (but do not bind) the court to make decisions more closely aligned with the country’s international obligations. A positive example of this is the Van Gorkom v Attorney-General case,¹¹ where the Universal Declaration of Human Rights clearly influenced, but did not determine, Cooke J’s decision to invalidate a discriminatory practice regarding teachers’ pay.¹² It is reasonable to conclude that decisions like this (which are aligned with international law) tend to be viewed favourably by the international community. Therefore, it is appropriate and beneficial for New Zealand that international law is a limited part of the domestic law.

B  Respecting Existing Constitutional Arrangements

The extent of international law integration in New Zealand, being overall limited, is also appropriate as it respects New Zealand’s fundamental constitutional principles. The non-binding nature of international law in the current legal system means that it does not offend the foundational principle of parliamentary sovereignty – that Parliament is the supreme law-making body.¹³ The courts may be influenced by international law, but as discussed in Part II, it does not apply them directly in the same way as domestic law. I argue that this strikes a balance between the benefits outlined in sub-part A and concerns about a “democratic deficit”, whereby the courts can be viewed as sidelining the democratically elected Parliament through their application of international law.¹⁴ The current system of limited integration holds this balance, with Parliament still able to pass legislation that can override any decision the courts make influenced by international law (or otherwise), as Parliament’s legislation remains the highest form of law.¹⁵ This is important as Parliament ultimately answers to the people and is the foundation of New Zealand’s democracy.¹⁶ Therefore, the fact that international law is only a limited part of New Zealand’s domestic law is appropriate.

IV  Conclusion

In this essay, I have generally agreed with the statement by arguing that international law is part of the domestic law of New Zealand to a highly limited extent, and that this is appropriate. First, the limited extent is demonstrated through an analysis of how international law has been applied in New Zealand’s domestic courts. Second, I argued that this is appropriate as it strikes a balance between the benefits of applying international law and concerns of a democratic deficit.

I  Introduction

Children’s views on religion may carry no weight until they can prove they understand it. The High Court in Moore v Moore held that two children, aged six and eight, lacked the capacity under Gillick competence to choose whether to practice their religion publicly.¹ Under Gillick competence, a child is either competent or not to decide their religion.² There is no middle ground.

This essay argues that Moore’s most problematic feature is its binary conception of capacity under Gillick competence, which can exclude children’s meaningful participation. I will draw on children’s rights theory and the principle of evolving capacity to propose a graduated approach to recognising children’s voices.

II  Gillick Competence

The central issue in Moore is the application of Gillick competence. Brown J required the children to reach early adolescence (around 12) to cognitively understand and debate religious beliefs before their views carry any weight.³ A “staged” or incremental application of Gillick competence was expressly rejected.⁴ This creates a binary threshold that prohibits children under 12 from exercising their freedom and manifestation of religion.⁵

A counterargument is that Gillick competence provides clear guidance on when courts should listen to children. However, it ignores the reality that children’s development is gradual and spasmodic.⁶ Denying children meaningful agency until they reach competency risks treating them as pre-moral beings.

III  Theoretical Background

I will draw on children’s rights theory and the principle of evolving capacity to critique the application of Gillick competence in Moore.

a.  Children’s Rights Theory

Children’s rights theory recognises children as rights-holders entitled to dignity and respect, instead of passive recipients of adult decisions.⁷ It affirms their right to possess rights, even before full decision-making capacity is reached.

The principle of evolving capacity underpins children’s rights theory. Children’s autonomy develops gradually as they mature, necessitating meaningful participation to varying degrees across different ages and developmental stages.⁸

b.  The Legal Framework

Articles 12 and 14 of the United Nations Convention on the Rights of the Child recognise the child’s right to be heard and their freedom of religion, subject to their evolving capacities.⁹ This creates a sliding scale of participation rather than requiring full Gillick competence. Section 6 COCA extends children’s rights theory by imposing no age or maturity requirement for views to be taken into account.¹⁰ This reflects a legislative intention to respect children’s participation. Accordingly, any religious decision must give weight to a child’s views.

IV  The Welfare-Centred Decision in Moore

A  The Dispute

In Moore, following separation, the mother involved the young children (then aged four and six) in Jehovah’s Witness practices without the father’s consent.¹¹ The Family Court granted the father primary care but declined to make guardianship directions about the children’s religion.

The High Court addressed three questions: (a) whether it had jurisdiction, in light of ss 13 and 15 of NZBORA to make religious guardianship directions for the children’s participation in the Jehovah’s Witness faith; (b) if so, whether such directions should be made; and (c) whether to vary the parenting order.¹²

B  The Jurisdictional Question

The High Court held that a COCA decision based on a child’s welfare and best interests does not conflict with their rights until they attain Gillick competence.¹³ This binary standard conflicts with children’s rights theory. A six-year-old may lack the capacity to debate an entire religion but surely can express whether they enjoy attending meetings or feel a sense of belonging. Children want to provide a view, benefit from it, and be treated as an expression of their evolving capacities.¹⁴

While the Court heard the children’s views pursuant to s 6(2), this amounted to mere consideration without influencing the decision. By delaying the children’s views, the Court’s binary approach treats children as becomings rather than beings.¹⁵

C  Variation of the Parenting Order and Guardianship Directions

1  The Variations

The High Court varied the parenting order to grant the father primary care. This was because the exposure to conflicting belief systems was causing the children psychological strain through “cognitive dissonance”.¹⁶ It also imposed guardianship directions limiting the children’s participation in Jehovah’s Witness practices to the mother’s home.

One may argue that the decision demonstrated adherence to the welfare principle. Children exposed to entrenched parental disputes about values may suffer emotional harm.¹⁷ Therefore, the intervention provided a pragmatic compromise, diluting the intensity of religious exposure without eliminating it.¹⁸

2  Clash with Children’s Rights Theory

However, from a children’s rights perspective, the decision was asymmetrical. The cognitive dissonance arose from the conflicting values, so the logical solution was to balance both parents’ influences to minimise any further dissonance. Instead, the children could fully participate in the father’s secular lifestyle. Meanwhile, religious instruction with the mother was restricted to the home, stripping its public and communal dimension. This privileged the father’s beliefs over the mother’s, deepening the dissonance.

Evidence showed that the children held strong religious views that aligned with their mother. The son said he would be “angry” if prohibited from worshipping. The daughter likened it to “being put in a jail.”¹⁹ Brown J acknowledged these views as genuine but declined to give them weight in the decision, in accordance with Gillick competence.²⁰ Thus, the Court did not protect the children’s welfare. They shaped their religious development.

IV  Do Children Have a Right to Choose Their Religion?

Children do have a right to freedom of religion. However, Gillick competence delays meaningful participation, contrary to the principle of evolving capacity. Children are consistently ignored, so the law must intervene.²¹

A  Adopting a Graduated Model

A graduated model gives children’s views increasing weight as their understanding develops. Section 6(2) COCA does not require the courts to necessarily follow a child’s views.²² The provision should be reframed to require courts to follow and assess the weight given to a child’s views based on evolving capacities including their age, maturity, and the context of the decision. This ensures their view is respected.

This can be operationalised through a duty-of-care framework.²³ A decision-maker must actively facilitate participation by providing children with meaningful opportunities to articulate their views, while also preserving the child’s right not to participate. Where a child elects to participate, a two-tier duty arises. First, the decision-maker must give those views proportionate weight. Second, if departing from them, they must provide reasoned justification. This enhances transparency and builds useful precedent for future decision-makers.

B  Counterargument

A counterargument is that a graduated model may overstate children’s autonomy, particularly younger children’s views that parrot parental influence.²⁴

However, no child or adult reaches a strict point that they are free from religious influence. The duty-of-care model requires children to be informed of the dispute in age-appropriate terms. This would be in the safe support of an adult such as the lawyer for the child or a counsellor, enabling a genuine expression of their views.²⁵ Additionally, a graduated approach requires the courts to assess the quality and independence of the child’s views, giving proportional weight to any decision. Therefore, balancing all interests.

V  Conclusion

Moore demonstrates that not all children are capable of shaping their own religious lives. Its binary Gillick threshold silences children who are genuine rights-holders with present religious identities. A graduated model grounded in evolving capacities would give their voices meaningful weight and eliminate the question, “what about me?”²⁶