Care of Children Act 2004

by Gubb and Partners – 2005

An outline of the Care of Children Act

Schools are regularly enquiring about the major changes to 'guardianship' in New Zealand, and the effect of the Care of Children Act 2004. Few people are aware that the Guardianship Act 1968, which has been at the heart of family law in New Zealand for the last 36 years, has been replaced by the new Act.

The Care of Children Act 2004 became law on 1 July 2005, repealing the Guardianship Act 1968, and is the first major reform of private law affecting children and families in 36 years. The aim of the Act is to modernise the law regarding guardianship and care of children so that it effectively promotes the interest of children and satisfies the needs of all New Zealand families (see General Policies Statement on Care of Children Bill 2003 No. 54-2).

The writers are drawing heavily on the helpful commentary in the family law section of Brookers Family Law. It has an excellent section on the new Act.

The Explanatory Note to the Care of Children Bill (Care of Children Bill) contains background information about the Bill. It states:

Family and ethnic demographics in New Zealand have changed considerably since the 1968 Act was enacted. The 1968 Act is premised upon a traditional nuclear family model that does not reflect the diversity of family arrangements that now exist in New Zealand. More modern legislation must provide a framework that recognises and supports all types of family units that care for children, for example single-parent households, extended families, reconstituted families, and de facto relationships (including those of the same sex). That challenge is magnified when the varied cultural dimensions of families are considered.

The Act was amended by the Care of Children Amendment Act 2005, which came into force on the same date as the principal Act came into force.

The Care of Children Amendment Act 2005 added a new definition of "spouse or partner of a parent” to section 8, and repealed sections 9 and 10, which had defined “de facto partner” and “de facto relationship” respectively. An amendment to section 29 and a new section 29A of that Act inserted new definitions for “de facto partner” and “de facto relationship”. The definition of “de facto relationship” as set out in 29A is significantly changed from the repealed definition in section 10 Care of Children Act 2004. A new definition of “spouse or partner of a parent” is inserted. The new definition is:

“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.”

The Care of Children Bill was introduced into Parliament on 10 June 2003. It was referred to the Justice and Electoral Committee of Parliament and was reported back with significant amendments on 28 June 2004. It passed its third reading on 9 November 2004, and received the Royal Assent on 21 November 2004.

The most important amendments made in the Select Committee were:

  1. Enactment of a set of guiding principles. The reason given for the inclusion of a set of principles was that it would increase transparency of decision making and give families clearer indications as to what matters will be considered relevant in making orders or mediating an agreement. The principles link with principles established in other family law statutes affecting children (for example, Children, Young Persons, and Their Families Act 1989 and Domestic Violence Act 1995).
  2. Greater openness of care of children proceedings. The Bill provided for greater openness of proceedings relating to the care of children in that it allowed a wider range of persons to attend court hearings and it relaxed restrictions on reporting proceedings in respect of the care of, and contact with, children.
  3. Counselling available to guardians where they are unable to agree on a matter concerning the effect of their guardianship. Where the guardians of a child are unable to agree on important matters concerning their guardianship, a guardian can request that the matter be referred to a counsellor with a view to resolving the matter by agreement: section 44(1)(a).
  4. An applicant for a parenting order must file a statement as to the extent to which the order should provide for any other person’s involvement in the day-to-day care of, or contact with, the child.
  5. Power to impose a condition on a parenting order requiring a party to enter into a bond to be forfeited on breach of an order.
  6. Powers of guardians to determine important matters affecting the child. The child’s “culture and language” are added to the list of important matters that guardians have a right and responsibility to decide (or help the child to decide). “Routine medical treatment” is removed from the list of important matters: section 16(2).
  7. Additional conditions limiting the appointment of additional guardians. Provided certain conditions are fulfilled, the partner of a parent can be appointed administratively as an additional guardian of a child without any need for a court order. The Select Committee recommended a further condition that the proposed additional guardian must have shared responsibility for the child’s “day-to-day care” for at least one year: section 23(2)(a). It also proposed a condition that the person to be appointed an additional guardian be a New Zealand citizen, or ordinarily resident in New Zealand: section 22(3).
  8. The consent of the proposed testamentary guardian to be obtained prior to appointment (this requirement was later deleted).
  9. Obligation on the lawyer acting for a child to meet with the child. This requirement was added in response to submissions that some lawyers acting for children do not always see the need to meet with the child: section 7(3). The Select Committee also proposed an amendment to require the court to consider, as soon as practicable, whether to appoint a lawyer to act for the child in proceedings relating to parenting orders in which allegations of violence have been made: section 60(1)(a).

Care of Children Act and other family legislation

Family legislation in New Zealand is now spread between a variety of statutes. The main family law statutes and the areas they cover are:

  • Adoption Act 1955: Adoption of children
  • Adult Adoption Information Act 1985: Access by adult adoptees to information about birth parents and access by birth parents to information about children placed in adoption
  • Adoption (Intercountry) Act 1997: Inter-country adoptions
  • Age of Majority Act 1970: Sets the age of majority (the age at which children become adults) at 20 years
  • Births, Deaths, and Marriages Registration Act 1995: Recording of information regarding births, deaths, and marriages, and access to that information. The Act also sets requirements and procedures for change of name
  • Child Support Act 1991: Financial support for children
  • Civil Union Act 2004: Creates a new status of civil union available to same-sex and different-sex couples aged 16 years or older, and sets out the procedures for entering into a civil union
  • Domestic Violence Act 1995: Enables the Family Court to make protection orders to give children and partners protection from spouses or partners or persons with whom they are or have been in a domestic relationship (including a same-sex relationship)
  • Family Courts Act 1980: Establishes the Family Court and sets criteria for the selection of Family Court judges. This Act incorporated recommendations of the Royal Commission on the Courts 1978
  • Family Proceedings Act 1980: Provides for counselling, conciliation, and mediation, and establishes procedures for proving paternity of children. It sets out the grounds and procedures for dissolution
  • Human Assisted Reproductive Technology Act 2004: Regulates use of human assisted reproduction, bans commercial surrogacy, and provides access by donor offspring to information about their biological parents
  • Marriage Act 1955: Sets out what consents are necessary for marriage and establishes formal requirements for marriage
  • Property (Relationships) Act 1976: Sets out the rules that apply to the division of property on separation or death of partners to a marriage, civil union, or de facto relationship (including a same-sex relationship)
  • Social Security Act 1964: Financial support for single parents and for persons who are not being supported by their spouse or partner
  • Status of Children Act 1969: Establishes a presumption that the husband of a woman who gives birth to a child during her marriage, or within 10 months of dissolution, is the father of the child. It gives the High Court power to make a declaration of paternity. It also sets rules determining the parental status of gamete donors and recipients, and their spouses or partners, in respect of children born as a result of assisted human reproduction (donation of sperm, eggs, or embryo).

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