Guardianship of children
When guardianship ends
When and how does guardianship end?
Care of Children Act 2004, s 28
Guardianship ends when the child:
- turns 18, or
- gets married, enters into a civil union, or lives with someone as a de facto partner (if the child is 16 or 17, they need written permission from their guardian).
Guardianship also ends if a guardian:
- is removed by the Family Court, or
- was appointed for a specific time period and the period ends, or
- was appointed for a specific purpose and the purpose is achieved.
Note: Guardianship has been described as a “dwindling right”. This means that even though guardianship may not have legally come to an end, as a child gets older and gains maturity and understanding, their views become more important and the rights of a guardian to make decisions for the child decrease.
Removal of guardians by the courts
When can someone be removed as a guardian?
Care of Children Act 2004, s 29
The Family Court can remove a parent as guardian if:
- for some very serious reason the person is unfit to be a guardian, or
- the person is unwilling to be a guardian, and
- the removal will be in best interests of the child.
In practice, this means that there will have to be a very serious reason before a parent is removed as a guardian.
The requirements for removing testamentary, court-appointed, or additional guardian are lower. In these cases, the Family Court only needs to consider whether removing the guardian is in the best interests of the child.
An application to remove a guardian can only be made by:
- a parent, guardian, grandparent, aunt, uncle, or sibling (including a half-sibling) of the child,
- a spouse or partner of a parent of the child, or
- anyone else granted leave by the court to apply.
