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Guardianship of children

Other people as guardians

In some circumstances, people other than a child’s parents can become guardians of a child. These circumstances are set out below.

Testamentary guardians

What is a testamentary guardian?

Care of Children Act 2004, s 26

Testamentary guardians are appointed by a will or deed of a parent of the child. The person appointed becomes a testamentary guardian automatically when the parent dies.

A testamentary guardian becomes a joint guardian with any other guardians. However, the surviving parent or guardian may challenge his or her appointment.

Note: Testamentary guardians have the guardianship responsibilities of contributing to the child’s development and helping to make the important decisions in a child’s life. However, they do not have the automatic right to provide day-to-day care for the child. They must apply to the court if they want to be involved in the child’s day-to-day care.

Court-appointed guardians

When can the Family Court appoint a guardian?

Care of Children Act 2004, s 27

The Family Court may appoint someone who is not already a natural guardian of a child to be that child’s guardian. The court can do this when someone applies to be a guardian, or on its own initiative when making an order to remove a guardian.

A court-appointed guardian can be appointed as a joint guardian along with any other guardian, or a sole guardian.

Children, Young Persons, and Their Families Act 1989, s 110

Note: The Family Court can also appoint a new guardian when it has made an order that a child needs care or protection (a care and protection declaration). The new guardian can be Oranga Tamariki / Ministry for Children, or it could be, for example, a child and family support service like Barnados or an iwi social service. It can also be an individual person (see the chapter “Dealing with Oranga Tamariki / Ministry for Children”).

How long will the guardian be appointed for, and for what purpose?

Care of Children Act 2004, ss 4, 27(2)

The court can appoint the guardian for all purposes and for an indefinite period – for example, if neither parent is able to look after the child.

However, in some cases the court may decide to appoint the guardian for a particular purpose only – for example, to consent to medical treatment that the child’s parents won’t consent to, like a blood transfusion. Or it may appoint the guardian for a specific period of time – for example, while a parent is overseas, ill or in prison.

The child’s welfare and best interests are the most important factors for the court to consider when deciding whether to appoint an additional guardian.

Appointing a new spouse or partner as a guardian

When can a new spouse or partner be appointed as an additional guardian?

Care of Children Act 2004, ss 23, 24, 25

In some situations, a new spouse or partner of a parent can be appointed as an additional guardian by the Family Court registrar, without the need to go through a court hearing.

The new spouse or partner can only be appointed if:

  • they have shared responsibility for the day-to-day care of the child for at least one year, and
  • they have never been involved in any care of children proceedings (such as described in this chapter) or care and protection proceedings in the Family Court (see the chapter “Dealing with Oranga Tamariki / Ministry for Children”), and
  • they have never had an application made against them for a protection order under the Family Violence Act (see the chapter “Family violence and elder abuse”), and
  • they have never been convicted of an offence involving harm to children.

Other restrictions on appointing an additional guardian

Care of Children Act 2004, s 22

There are restrictions stopping the appointment of an additional guardian if the child:

There are also restrictions stopping the appointment of an additional guardian if the appointing parent:

  • is or has been involved in care and protection proceedings (see the chapter “Dealing with Oranga Tamariki / Ministry for Children”), or
  • has at any time had an application made against them for a protection order under the Family Violence Act, including as an “associated respondent” (see the chapter “Family violence and elder abuse” – this also explains what an “associated respondent” is), or
  • has already appointed an additional guardian for the child, or
  • has been deprived of his or her guardianship.

Who has a say in whether an additional guardian is appointed?

Care of Children Act 2004, ss 21, 23

If both parents are alive, whether or not they are both guardians of the child, they must both agree to the appointment. If the child has any additional guardians, they must also consent to the appointment. The child must also be consulted about the new partner being appointed a guardian.

What is the process for appointing a new partner as guardian?

There is a special form for making the appointment, and usually both parents and the new partner must sign the form. The form must be accompanied by:

  • statutory declarations from the parent or parents making the appointment and the new partner, and
  • a copy of the new partner’s criminal record (this can be obtained from the Ministry of Justice).

The court as guardian

High Court or Family Court can appoint itself as a guardian

Care of Children Act 2004, ss 30–35

In some situations, the High Court or Family Court will appoint itself to be a child’s guardian. In these cases, the court will probably appoint Oranga Tamariki / Ministry for Children to act as its agent.

The people who can apply for a child to be placed under the court’s guardianship are:

  • a parent or guardian of the child
  • a grandparent, aunt or uncle of the child
  • a sibling (including a half-sibling) of the child
  • a spouse or partner of a parent of the child
  • the child themselves
  • Oranga Tamariki / Ministry for Children
  • any other person granted leave to apply by the court.

When the court becomes the guardian of a child, the court takes priority over the rights of existing guardians. The guardianship rights of any other people become subject to the approval of the court.

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