promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and
(b)
recognise certain rights of children.
(2)
To that end, this Act—
(a)
defines and regulates—
(i)
parents’ duties, powers, rights, and responsibilities as guardians of their children:
(ii)
parents’ powers to appoint guardians:
(iii)
courts’ powers in relation to the guardianship and care of children:
(b)
acknowledges the role that other family members may have in the care of children:
(c)
respects children’s views and, in certain cases, recognises their consents (or refusals to consent) to medical procedures:
(d)
encourages agreed arrangements for, and provides for the resolution of disputes about, the care of children:
(e)
makes provision for enforcing orders internationally:
(f)
implements in New Zealand law the Hague Convention on the Civil Aspects of International Child Abduction:
(g)
reforms and replaces the Guardianship Act 1968 (including the Guardianship Amendment Act 1991).
4-
Child’s welfare and best interests to be paramount
(1)
The welfare and best interests of the child must be the first and paramount consideration—
(a)
in the administration and application of this Act, for example, in proceedings under this Act; and
(b)
in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
(2)
The welfare and best interests of the particular child in his or her particular circumstances must be considered.
(3)
A parent’s conduct may be considered only to the extent (if any) that it is relevant to the child’s welfare and best interests.
(4)
For the purposes of this section, and regardless of a child’s age, it must not be presumed that placing the child in the day-to-day care of a particular person will, because of that person’s sex, best serve the welfare and best interests of the child.
(5)
In determining what best serves the child’s welfare and best interests, a court or a person must take into account—
(a)
the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and
(b)
any of the principles specified in section 5 that are relevant to the welfare and best interests of the particular child in his or her particular circumstances.
(6)
Subsection (5) does not limit section 6 (child’s views) or prevent the court or person from taking into account other matters relevant to the child’s welfare and best interests.
(7)
This section does not limit section 83 or subpart 4 of Part 2.
Compare: 1968 No 63 s 23(1), (1A), (3); 1989 No 24 s 6
5-
Principles relevant to child’s welfare and best interests
The principles referred to in section 4(5)(b) are as follows:
(a)
the child’s parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child’s care, development, and upbringing:
(b)
there should be continuity in arrangements for the child’s care, development, and upbringing, and the child’s relationships with his or her family, family group, whānau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents):
(c)
the child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation among and between the child’s parents and guardians and all persons exercising the role of providing day-to-day care for, or entitled to have contact with, the child:
(d)
relationships between the child and members of his or her family, family group, whānau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing:
(e)
the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence (whether by members of his or her family, family group, whānau, hapu, or iwi, or by other persons):
(f)
the child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
Compare: 1989 No 24 ss 5, 13, 208; 2003 No 116 s 12
the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or
(b)
the administration of property belonging to, or held in trust for, a child; or
(c)
the application of the income of property of that kind.
(2)
In proceedings to which subsection (1) applies,—
(a)
a child must be given reasonable opportunities to express views on matters affecting the child; and
(b)
any views the child expresses (either directly or through a representative) must be taken into account.
Compare: 1968 No 63 s 23(1), (2)
7-
Lawyer to act for child
(1)
A court may appoint, or direct the Registrar of the court to appoint, a lawyer to act for a child who is the subject of, or who is a party to, proceedings (other than criminal proceedings) under this Act.
(2)
However, unless it is satisfied the appointment would serve no useful purpose, the court must make an appointment or a direction under subsection (1) if the proceedings—
(a)
involve the role of providing day-to-day care for the child, or contact with the child; and
(b)
appear likely to proceed to a hearing.
(3)
To facilitate performance of the lawyer’s duties and compliance with section 6 (child’s views), the lawyer must, unless he or she considers it inappropriate to do so because of exceptional circumstances, meet with the child.
(4)
The lawyer may call any person as a witness in the proceedings, and may cross-examine witnesses called by a party to the proceedings or by the court.
Compare: 1968 No 63 s 30(1)(b), (2), (3)
Section 7(1): amended, on 18 May 2009, by section 4(1) of the Care of Children Amendment Act 2008 (2008 No 74).
Section 7(2): amended, on 18 May 2009, by section 4(2) of the Care of Children Amendment Act 2008 (2008 No 74).
In this Act, unless the context otherwise requires,—
certified copy, in relation to an order of a court, means a copy certified by the proper officer of the court to be a true copy of the order
chief executive means the chief executive of the department
child means a person under the age of 18 years
contact, in relation to a child, includes all forms of direct and indirect interaction with the child
country includes any State, territory, province, or other part of a country
court means a court having jurisdiction in the proceedings, under section 125
day-to-day care includes care that is provided only for 1 or more specified days or parts of days
department means the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989
faxed copy, in relation to a warrant issued under this Act, means a copy of the warrant that is produced by a fax machine, computer, or other electronic device when the warrant is sent by facsimile transmission
guardian and guardianship have the meanings given to them by section 15
High Court includes a Judge of that court
lawyer has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006
litigation guardian—
(a)
has the same meaning as the expression guardian ad litem; and
(b)
in section 31(2)(e), includes a next friend
overseas parenting order—
(a)
means an order made by a court in a prescribed overseas country, being—
(i)
an order relating to the role of providing day-to-day care for, or contact with, a child; or
(ii)
an order that varies or discharges or is made in substitution for an order in subparagraph (i); but
(b)
does not include—
(i)
an interim order or an order made without notice; or
(ii)
an order made by a court in a prescribed overseas country and that varies or discharges or is made in substitution for an order, made in New Zealand, that is registered or is otherwise enforceable in the prescribed overseas country
parenting order means an order under section 48(1)
prescribed means prescribed by rules of court, regulations, or Order in Council
prescribed overseas country means—
(a)
Australia; or
(b)
any State or Territory of Australia; or
(c)
any other country outside New Zealand that is declared by Order in Council to be a prescribed overseas country for the purposes of this Act; and, for the purposes of this paragraph, the Cook Islands, Niue, and Tokelau must each be treated as a country outside New Zealand
Registrar-General has the meaning given to it by section 2 of the Births, Deaths, Marriages, and Relationships Registration Act 1995
role of providing day-to-day care for a child—
(a)
means the role, under this Act, an order under this Act, or an order made by a court in a prescribed overseas country, of providing day-to-day care for the child; and
(b)
includes, while exercising that role, exclusive responsibility for the child’s day-to-day living arrangements
Secretary means the Secretary for Justice
social worker means a person employed under Part 5 of the State Sector Act 1988 in the department as a social worker
spouse or partner of a parent means, in relation to a child, a person who is not the child’s parent but—
(a)
who is or has been married to, or in a civil union or de facto relationship with, a parent of the child; and
(b)
who shares responsibility for the child’s day-to-day care with the parent.
Compare: 1968 No 63 s 2
Section 8 de facto partner: repealed (without coming into force), on 1 July 2005, by section 3 of the Care of Children Amendment Act 2005 (2005 No 5).
Section 8 de facto relationship: repealed (without coming into force), on 1 July 2005, by section 3 of the Care of Children Amendment Act 2005 (2005 No 5).
Section 8 lawyer: substituted, on 1 August 2008, by section 348 of the Lawyers and Conveyancers Act 2006 (2006 No 1).
Section 8 partner of a parent: repealed (without coming into force), on 1 July 2005, by section 3 of the Care of Children Amendment Act 2005 (2005 No 5).
Section 8 Registrar-General: amended, on 24 January 2009, by section 47 of the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 (2008 No 48).
Section 8 spouse or partner of a parent: added, on 1 July 2005, by section 3 of the Care of Children Amendment Act 2005 (2005 No 5).
9-
De facto partner defined
[Repealed]
Section 9: repealed (without coming into force), on 1 July 2005, by section 3 of the Care of Children Amendment Act 2005 (2005 No 5).
10-
De facto relationship defined
[Repealed]
Section 10: repealed (without coming into force), on 1 July 2005, by section 3 of the Care of Children Amendment Act 2005 (2005 No 5).
11-
Application
This Act applies to—
(a)
children living at the commencement of this Act (see section 2); and
Except as otherwise expressly provided in this Act, this Act has effect in place of the rules of the common law and of equity as to the guardianship and custody of children.
(2)
In matters not provided for by this Act, the High Court continues to have all the powers in respect of the persons of children that the High Court had immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968.
Compare: 1968 No 63 s 33(1), (3)
14-
Administration of children’s property
(1)
The welfare and best interests of the child must be the first and paramount consideration in proceedings relating to the administration of, or to the allocation of income from, property belonging to, or held in trust for, a child.
(2)
No person may be appointed as, or have any powers as, guardian of the property of a child, except under an order of the kind referred to in section 33(1) appointing as the agent of the court a named person or a person whom the court thinks fit.
(3)
However, nothing in this Act limits any powers of the High Court in relation to, or in relation to the administration of, any property held on trust (for example, the powers of the High Court under sections 64 and 64A of the Trustee Act 1956).
(4)
Nothing in this section limits section 6 (child’s views).
Guardianship: Responsibility for children, and decisions about children
Guardianship
15-
Guardianship defined
For the purposes of this Act, guardianship of a child means having (and therefore a guardian of the child has), in relation to the child,—
(a)
all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child:
(b)
every duty, power, right, and responsibility that is vested in the guardian of a child by any enactment:
(c)
every duty, power, right, and responsibility that, immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968, was vested in a sole guardian of a child by an enactment or rule of law.
Compare: 1968 No 63 s 3; Family Law Act 1975 s 61B (Aust)
