Care of Children
An Introduction to the Care of Children Act 2004
The Care of Children Act 2004 came into force on 1 July 2005. This act replaces the Guardianship Act 1968.
The Act makes some important changes to the laws dealing with:
- the guardianship of children
- arrangements for the care of children, and
- resolving disputes about arrangements for the care of children
The Act makes the law more consistent with the responsibilities that parents have towards their children.
The Act also recognises that these days children in New Zealand are brought up in many types of family arrangements.
A summary of the changes made by the Act
The Act:
- puts more emphasis on the rights of children
- encourages co-operative parenting
- recognises the many types of family arrangements that now exist for looking after children
- provides for more openness in the Family
- gives the Court more options when dealing with breaches of Court orders
The Care of Children Act promotes the welfare and best interests of Children.
More Emphasis on the rights of children
The Care of Children Act 2004 makes the welfare of the child the most important priority. it also emphasises that children should be consulted about decisions that affect them, and that decisions affecting a child should be made and carried out within a timeframe that fits with the child's sense of time.
The Act also shifts the focus away from parents' rights, towards parents' responsibilities.
The child comes first
The new Act emphasises that the welfare and best interests of the child is the first and most important issue in any dispute about them.
It sets out some key actors that the Court must consider when it is deciding what is best for children:
- the child's parents and guardians should take the main responsibility for looking after them and making arrangements for their care, development and upbringing
- there should be continuity in the arrangements for the child's care, development and upbringing
- links between the child and their whanau or other wider family group should be preserved and strengthened
- there should be co-operation between parents, guardians and others who are involved in looking after the child
- the child must be kept safe and protected from all forms of violence, and
- the child's identity, including their culture, language and religion, should be preserved and strengthened
Listening to the child
Decisions made by the Family Court under the Act may have significant effects on the child's daily life and their long-term relationships with their parents. The new Act strengthens the requirement that a child involved in Family Court proceedings should have a reasonable chance to say what they think should happen (about who they should live with, for example). The Judge has to take the child's views into account when making a decision.
A Lawyer for the Child
Under the new Act, the Family Court will continue to appoint an independent lawyer to Act for a child if a dispute affecting them seems likely to go to a Court hearing. the job of the lawyer is to:
- represent the child through the Court process and in any negotiations between their parents
- find out the child's views and make the Judge aware of them
- make sure the child's best interests and all issues affecting their welfare are put before the Court for it to consider, and
- explain the Court process to the child and, at the end of the process, explain the Judge's decision.
For more information, see the pamphlet Lawyer for the Child.
Children can appeal Family Court decisions affecting them
The Act gives children the right to appeal most decisions under the Act that affect them (parenting orders, for example).
The lawyer for the child will explain the right of appeal to the child. the lawyer will help the child lodge their appeal if this is what the child wants.
Children can ask the Court to review parents' and guardians' decisions
If a child who is 16 or older is unhappy about an important decision made about them by their parents or guardians, the child can ask the Family Court to decide the issue.
Guardianship ends at 18
Guardianship of a child ends at age 18 years (it used to be 20 years). Guardianship will also end if a child who is 16 or 17 gets married, enters into a civil union, or starts a de facto relationship (they need written permission from their parent or guardian to do any of these things).
The age of 18 is consistent with New Zealand's international obligations under the United Nations Convention on the Rights of the Child.
Encouraging Co-operative parenting
From "rights" to "responsibilities"
The new Act emphasises the responsibilities that both parents have towards their children, rather than the rights they may have as parents.
The words used in the new Act reflect this change. Instead of parents having custody of their children, the Act provides for parents to have day-to-day care of their children. Both parents may share day-to-day care, splitting the time in a way that works best for their children and the family's circumstances.
A parent who doesn't have day-to-day care of the children will be encouraged to have contact with them. This used to be called access.
The Act replaces custody orders and access orders with parenting orders.
Parenting - an ongoing role
The Act also emphasises that parents' responsibilities are ongoing. When parents have separated, both should continue to have a significant role in their children's upbringing, even if one of them is no longer living with the children.
Encouraging parents to make their own arrangements for the care of their children
The Act encourages parents to co-operate and agree on arrangements for the care of their children. It's usually much better for everyone involved - especially the children - if parents can reach workable arrangements themselves. Parents will need to ask the Family Court to intervene only if the parents disagree about the care of their children and cannot sort out the disagreement themselves or with the help of counselling arranged by the Court.
If they want to, parents who have made their own arrangements for the care of their children can write a parenting agreement, setting out the details of what they have agreed. They can ask the Court to make a court order based on the agreement.
For more information, see the pamphlet Parenting Agreements.
What happens when parents can't agree?
If parents can't agree on what's best for their children, they can ask the Family Court to help. The Court will usually start by arranging free counselling, where a trained, professional counsellor will help them try to sort out their differences.
For more information, see the pamphlet Counselling.
What happens if parents can't agree at counselling?
If counselling does not work, then one or both of the parents can apply to the Family Court for a parenting order. Usually the Court will arrange a mediation conference first. Here, a Family Court Judge will help the parents try to reach an agreement.
For more information, see the pamphlet The Mediation Conference.
Court hearings - a last resort
If neither counselling nor mediation works, the last resort is a formal Court hearing. At the end of the hearing, the Court can make a parenting order. The order can deal with:
- who will have the day-to-day care of the children and when, and
- if only one parent is to have day-to-day care, when and how the other parent will have contact with the children
How does the Court decide?
The welfare and best interests of the child is the first and most important thing the Court has to consider when it is deciding whether to make a parenting order and what should be in it.
The Court can ask a specialist to prepare a report to help it decide the case (for example, a report by a psychologist or a report on a child's cultural background). The Court can also ask a social worker from Child, Youth and Family to prepare a report.
A parent can ask the Court to listen to someone tell it about the child's cultural background and how this may be relevant to the decisions the Court is being asked to make.
For more information, see the pamphlet Parenting Orders.
Making parenting orders work
If one of the parents isn't doing what the parenting order says, the first thing the Court will usually do is refer the parents to counselling to try to get them to work out the problem themselves.
If that does not work, and as a last resort, the Court can make various orders to deal with the situation. It can reduce the amount of time the parent has with the children, for example, or require the parent to pay money to the Court as a bond, which they may lose if they continue to disobey the order. For more information, see the pamphlet Breaches of Parenting Orders.
Recognising Different Arrangements for Caring for Children
These days, children in New Zealand are brought up in many types of family arrangements. For example, children may be cared for by both their parents, by members of their whānau or wider family group, or by same-sex partners.
The role of whānau and wider family groups
The Act makes it clear that it is important for children to keep and strengthen their links with their wider family, including whānau, hapu, iwi and other family groups.
It also encourages members of whānau and other wider family groups to participate in the care and upbringing of children.
With the Family Court's permission, members of whānau and other wider family groups can apply to the Court for a parenting order.
Parents can appoint one new partner as guardian
If a parent has a new partner who has been helping to look after the children for at least a year, the parent may be able to appoint their partner as a legal guardian of their children. Usually they will have to get the other parent's agreement.
A Family Court registrar must first check that the appointment form is in order. They must be satisfied that the proper information has been provided, that the paperwork has been done correctly, and that none of the restrictions that may prevent an appointment apply.
Only one new partner can ever be appointed a guardian in this way. However, an application to the Family Court can be made to appoint additional persons as guardians.
For more information, see the pamphlet Parents Appointing New Partners as Guardians.
Greater Openness in the Family Court
Introduction
The Act allows the public to know more about what goes on in the Family Court. At the same time, it makes sure that the Court continues to be a place where parents and guardians feel safe to discuss sensitive personal matters in a frank and open way.
Bringing support people into Court
If the parents went to counselling or mediation and took someone with them for support (a new partner, a friend or a family member, for example), the Act allows that person to be at the Court hearing.
The Judge can also allow other people to be at the Court hearing as support people for the parents. For more information, see the pamphlet Appearing in the Family Court.
News reporters can attend Court hearings
The Act gives news reporters the right to attend Family Court hearings held under the Act.
However, there are strict limits on what they can report. They cannot publish any names or any information that would be likely to identify the children, the parents or others involved in the case (support people and witnesses, for example).
The Judge can ask people to leave the Courtroom
Also, the Judge has the power to order everyone except the parties and their lawyers to leave the Courtroom at any time during the hearing.
Publication of decisions
Some Family Court judgments are also published on the Court's website (www.justice.govt.nz/courts/family-court), but the names are removed so that the people involved can't be identified. A judgment is a Judge's written decision in a particular case. It includes the Judge's reasons and sometimes a discussion of the law that applies to the case.
Interpreters
The Family Court can arrange for an interpreter to be present at counselling, mediation and Court hearings. For more information about this, talk to the Family Court Co-ordinator or another staff member at the local Family Court office.
Legal Aid
Anyone who needs a lawyer but can't afford one may be able to get legal aid. This is where the government pays some or all of the lawyer's bills (sometimes you may have to pay some or all of it back).
You can get information on legal aid by –
- contacting your local Legal Aid Services office, based at your local District Court (see the blue Government pages at the front of the phonebook)
- visiting the Legal Aid Services pages on the Ministry of Justice website at www.justice.govt.nz/services/getting-legal-aid, or
- seeing a lawyer and discussing legal aid with them.
Need more information or advice?
For more information or advice about the Care of Children Act 2004, look on the Family Court website (www.justice.govt.nz/courts/family-court), contact a family lawyer (www.familylaw.org.nz), a community law centre, or the nearest Family Court office.
www.justice.govt.nz/courts/family-court
Courts 002
Nov 06
