Children’s housing rights need urgent reform

New Zealand’s laws are failing to protect children’s rights to a stable home, according to Auckland Law School academics.

Professor Mark Henaghan and researcher Christian Poland say existing laws prioritise adult interests over children’s rights.

Their chapter, Children and the Reach of Family Property: The Rhetoric and the Reality, highlights the importance of a stable and secure family home for children’s well-being, especially during their formative years. Yet, various factors - parental separation, financial instability, colonisation, and flawed housing policies - frequently disrupt this stability. 

Under the country’s main legislation that considers family property, the Property (Relationships) Act (PRA), children’s needs are rarely at the centre of decision-making, says Henaghan, who advocates for amendments to the Act to ensure children’s needs are a primary consideration.

“Despite recommendations from organisations like Barnardos, which emphasise the importance of the family home for children, the legal profession largely opposes giving more weight to children's interests,” he says.

“Concerns include increased acrimony between partners, higher costs and delays in proceedings.”

The family law expert argues New Zealand should align its domestic laws with the United Nations Convention on the Rights of the Child (UNCRC), which recognises the primacy of children’s best interests.

“We signed up to the UN Convention on the Rights of the Child, but we don’t deliver. Our family property regimes don’t reach far enough to satisfy its aspirations.”

The researchers also bring attention to the Convention’s weaknesses, including that it has no specific right for children to claim property on their own behalf based on their interests and needs.

Henaghan and Poland highlight a survey of New Zealand family lawyers revealing only 14 percent believed children’s interests were a significant factor in property disputes. Henaghan says lawyers and judges consistently prioritise the ‘clean break principle’, which seeks to separate adult financial affairs, often at the expense of children’s rights to remain in their family home.

“The primary caregiver and children are often worse off post-separation. Primary caregivers, usually mothers, can face severe economic disadvantage as the family home - the main asset - is sold to satisfy both parties’ claims. For children, this disrupts their education, support networks and sense of identity.”

Practical solutions, including reverse mortgages could be used to manage costs while ensuring children can stay in their homes. The authors also discuss mechanisms that would allow one partner to buy out the other’s share of the family home through instalments or by offsetting expenses.

“These options, however, mean that a clean break won’t be fully achieved until the child is no longer a minor or dependent.”

The researchers highlight the critical role of state support to help families maintain housing stability and reduce the economic pressures often associated with separation.

“Aotearoa New Zealand is a low-income economy, and leaving it to the private sector to ensure each child has a family home is insufficient,” says Henaghan.

“Ideally, state support for children to stay in the family home would be the best option if we truly believe the family home is of significance for children.”

Meanwhile, the situation in Aotearoa is especially tough for tamariki Māori, who are significantly overrepresented in emergency housing. Sixty percent of children in emergency housing are Māori, with many enduring unsafe living conditions and disrupted education. Henaghan and Poland say these outcomes reflect broader systemic failings rooted in colonisation and inadequate housing policies.

“As a general principle under customary law, children belong to a family group and are guaranteed support within the group,” says Henaghan.

“The sad reality is that due to the assimilation of Māori and the colonial government doing all it could to extinguish te reo Māori and acquire land, many people moved into the cities and lost their communal support systems. This is a big factor behind homelessness in Māori families and the overrepresentation of tamariki Māori in emergency housing.”

To address cultural and community needs, he advocates for investment in housing models inspired by te ao Māori, which embrace communal living and cultural identity, providing a long-term solution for whānau and children’s well-being.

“A child’s right to a stable home is not just a family matter but a societal responsibility,” says Henaghan. “Without reform, children's best interests will continue to take a backseat, perpetuating cycles of instability and disadvantage.”

The chapter is published in the Research Handbook on Family Property and the Law.