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 towards their children.

The children come first

The new Act emphasises that the welfare and best interests of children is always the first and most important issue in any dispute about them.

It sets out some key factors 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 whānau 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 children

Decisions made by the Family Court under the Act may have significant effects on the children's daily lives 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 about what 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.

Lawyer for the child

Under the new Act, the Family Court will continue to appoint an independent lawyer (lawyer for the child) 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 the parents or other parties to the case

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 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 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

The Act lowers from 20 to 18 the age at which the guardianship of a child ends. 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 custody of their children, the Act provides for parents or other caregivers to have day-to-day care of the children. Parents or caregivers may share day-to-day care, splitting the time in a way that works best for the 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 new Act encourages parents and other caregivers to co-operate and agree on arrangements for the care of the children. It's usually much better for everyone involved - especially the children - if the adults can reach workable arrangements themselves. They will need to ask the Family Court to intervene only if they disagree about the care of the children and cannot sort out the disagreement themselves or with the help of counselling arranged by the Court.

If they want to, people 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.

What happens when parents can't agree?

If parents or caregivers 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 Counselling.

What happens if parents can't agree at counselling?

If counselling does not work, then one or both of the adults can apply to the Family Court for a parenting order. Usually the Court will arrange a mediation conference. Here, a Family Court Judge, or sometimes a professional mediator, will help them try to reach an agreement.

For more information, see The Mediation Conference.

For more information see Parenting Orders

Parenting orders - 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

when and how a parent or other person who doesn't have day-to-day care 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 an expert to prepare a specialist 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 Child, Youth and Family Services to prepare a report.

A parent or other party to the dispute 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 Parenting Orders.

Making parenting orders work

If one of the parents or other parties to a parenting order isn't doing what the order says, the first thing the Court will usually do is refer both of them 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 one of the parties has with the children, for example, or require them to pay money to the Court as a bond, which they could lose if they continue to disobey the order. For more information, see 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 paper-work 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, the Family Court can be asked to appoint a person as a guardian.

For more information, see 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 parties 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.

For more information, see Appearing in the Family Court (Care of Children Act 2004).

The Judge can also allow other people to be at the Court hearing as support people for the parents.

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 other parties, or others involved in the case - support people and witnesses, for example.

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.

Need more information or advice?

For more information or advice, click on the links below to other pages or pamphlets on this site, or contact a family lawyer (www.familylaw.org.nz), a community law centre, or the nearest Family Court office.

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 Coordinator 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 the local Legal Services Agency office (see the blue Government pages at the front of the phonebook)

visiting the Legal Services Agency website at www.lsa.govt.nz, or

seeing a lawyer and discussing legal aid with them.

Legal aid is available for all Family Court cases, except dissolution of marriage (divorce).

Further information

Pamphlet: An Introduction to the Care of Children Act 2004 (PDF 462Kb)

Arabic	PDF 223Kb
Chinese (Simple)	PDF 180Kb
Chinese (Traditional)	PDF 176Kb
Cook Islands Maori	PDF 258Kb
Fijian	PDF 159Kb
Hindi	PDF 202Kb
Korean	PDF 259Kb
Maori	PDF 323Kb
Niuean	PDF 195Kb
Samoan	PDF 298Kb
Somali	PDF 254Kb
Tokelauan	PDF 276Kb
Tongan	PDF 321Kb

Order copies of Family Court pamphlets.