Overview and Questions & Answers

The Care of Children Bill will replace the Guardianship Act 1968. The review of the Guardianship Act originated from proposals for shared parenting and concerns about the openness of the Family Court. In 2000 the government released a discussion document and called for public submissions. Nearly 400 submissions were received from a wide range of parties, including judges, parents, academics and community organisations.

The Bill modernises the framework for resolving care arrangements for children within families. Patterns of family life and attitudes towards children have changed significantly over the last 35 years. More modern legislation is needed to ensure a stronger focus on the rights of children and that all types of family arrangements are recognised.

The Bill will help parents, families and children by:

ensuring the legislation has a stronger focus on the rights and voice of the child;
promoting co-operative parenting;
removing discriminatory provisions that present barriers to families;
recognising the diversity of family arrangements that exist for the care of children;
providing meaningful court processes for guardianship proceedings.

2. Ensuring the legislation has a stronger focus on the rights and voice of the child

Terminology and procedure in the Guardianship Act has been criticised for treating children as objects or subjects of proceedings rather than active participants. Failing to engage children in proceedings that have a profound effect on their daily life and long term relationships with parents can have lasting detrimental effects.

The Bill focuses parents' (and other decision-makers') attention on the interests and welfare of their children. Greater guidance is provided for decision-making by ensuring that the best interests and welfare of a child will be the overriding principle in any decision. This principle currently sits in section 23 (1) of the Guardianship Act. The principle has been modified to be consistent with international standards and elevated to the forefront of the Bill.

The Bill strengthens the existing requirement that a child must be given a chance to express his or her views in proceedings and any views expressed must be taken into account. The requirement to appoint a lawyer to represent a child in certain proceedings also has a more prominent place in the Bill.

Under the new Act, children affected by a decision of a Family Court or District Court will be able to appeal the decision to the High Court.

3. Encouraging co-operative parenting

New terminology signals a shift in emphasis from parental rights to parental responsibilities. Custody and access orders are replaced with parenting orders. Parents will no longer have custody of children, instead they will have the role of providing day-to-day care and the term access will be replaced with contact.

The Bill emphasises the ongoing role both parents have in a child's upbringing, making it clear that all guardians continue to have authority and responsibilities whether or not they are living with a child. Where the Court proposes to give one parent the role of providing day-to-day care for a child, the Court must consider whether and how the other parent should have contact with the child.

Some specific examples of a guardian's role, such as decisions about the child's name or education, are provided to illustrate the responsibilities and powers of guardians. The list of examples remains open-ended so that guardianship remains a flexible concept able to respond to different and varied approaches to parenting.

4. Recognising the diversity of family arrangements that exist for the care of children

The Guardianship Act is based on a traditional nuclear family model that does not reflect the diversity of family arrangements that now exist in New Zealand. Family members outside the nuclear family, such as grandparents or whanau, are for the most part excluded from the decision-making processes.

A wider group of people will be able to seek the Court's leave to apply for parenting orders (replacing custody and access orders), including members of a child's extended family, whanau or family group. People who have attended earlier Court counselling or mediation will, subject to being excluded by the Court, also be able to attend any subsequent hearing.

To respond effectively to the cultural and structural diversity of family arrangements, the Court needs improved access to information about a child's background. The Court will be able to request a report into the cultural background of the child and allow someone to speak to the Court on cultural issues.

In reconstituted or blended families, a new partner who is providing day-to-day care of a child sometimes faces difficulties because he or she is not a legal guardian. Parents will be able to jointly appoint a new partner (including de-facto and same-sex partners) as an additional guardian. The Bill includes safeguards to avoid appointing guardians that may pose a risk to the child or in family situations that are too complex.

The Court will also be able to enforce contact agreements between donors of gametes and parents of a child born using assisted human reproductive technology. The agreements will only be enforceable if they have been approved by the Court.

5. Providing meaningful court processes for guardianship proceedings

An important focus of the Bill is to support families in reaching their own agreements but at the same time providing meaningful processes to support or enforce court orders where a family has been unable to reach agreement or abide by agreed arrangements.

There will be more options available to the Court to encourage or enforce compliance with parenting orders. The Family Court will have an express duty to seek early resolution of disputes over parenting orders, with the power to refer parties to counselling. If counselling fails a range of enforcement measures will be available to encourage compliance, such as:

varying or discharging the order;
requiring someone who has breached an order to enter into a bond as an assurance against breaching the order again; or
awarding compensatory time for contravention.

The Court will also have increased powers to dismiss vexatious or repeat applications, or proceedings that are not in the best interests of the child.

6. Removing discriminatory provisions that present barriers to families

The Bill removes unfair distinctions between married and de-facto partners, for example:

biological fathers will be guardians if they are living, or have lived, in a de-facto relationship with the mother at any time between conception and birth. This will place these fathers on the same footing as a father married to the mother;
the same-sex partner of a birth mother who has conceived using assisted human reproduction technology will have the same legal parental status as an opposite sex partner has under the current legislation; and
same-sex de-facto couples will be entitled to access counselling through the Family Court.

In addition, amendments to the Status of Children Act 1969 will allow men to apply for paternity orders in the Family Court. Currently only a mother may seek such an order - men wanting to prove paternity must apply to the High Court for a declaration.

Questions and answers

(a) Who is a natural guardian?

The birth mother of a child is the child's guardian. This rule has been carried through from the Guardianship Act.

The Bill amends the rules relating to a biological father's guardianship. A father will be a guardian in the following circumstances:

automatically if he is or has been married to, or is living or has lived in a de facto relationship with, the mother of a child at any time from conception until birth of that child;
if his details are entered on the birth certificate with his consent and that of the mother; and
if he applies to a Family Court to be appointed a guardian of a child, he will be appointed as a guardian unless the Court considers it is contrary to the best interests of the child.

(b) When does guardianship end?

Guardianship will end once a child reaches 18 years of age, or if a child aged between 16 and 18 marries or enters into a de facto relationship (including a same-sex relationship) and his or her parents have consented to that relationship.

(c) Why has the age at which guardianship ends been set at 18?

The Attorney-General will present a report to Parliament stating that this aspect of the Bill is inconsistent with the New Zealand Bill of Rights Act. The New Zealand Bill of Rights Act prohibits discrimination on the basis of age above the age of 16 years.

18 years was chosen because the age is consistent with other domestic legislation and New Zealand's international obligations such as the United Nations Convention on the Rights of the Child (which requires New Zealand to have measures in place to protect children under 18 years). 18 years also broadly reflects society's expectations of parental authority and responsibilities to provide ongoing support to their children through the challenging transition from adolescence to adulthood.

The government is introducing the Bill with 18 years as the age at which guardianship ends, believing the select committee process is an appropriate arena to test public support for this age limit.

(d) What are parenting orders?

Parenting orders replace custody and access orders. The orders will determine the care arrangements for a child, for example, specifying the person or persons who have the role of providing day-to-day care for a child, or contact with a child. "Persons other than parents can also apply for parenting orders"

(e) What about shared parenting?

"Shared parenting" has many meanings. In some countries it means there is a presumption in legislation that parents will have an equal share in providing a child's day-to-day care.

The Bill acknowledges that the day-to-day care responsibilities for a child may be shared. Where a parent does not have a role of providing day-to-day care, the Court must consider whether that parent should have contact with the child. The Bill does not, however, create a presumption of shared parenting or a right to contact. Instead, the Bill focuses on encouraging co-operative parenting by focusing on the best interests and welfare of children and by emphasising the ongoing role both parents have in a child's upbringing. Any presumption on the form arrangements should take would be inconsistent with the principle of taking into account the individual circumstances of each child to ensure that care arrangements are in the best interests and welfare of that child.

(f) What happens if there is violence?

Where the Court is satisfied violence has been used against either the child or the other parent, but believes that some contact between the child and parent is in the child's best interests, the Court must order supervised contact. The Court will usually consider whether family or friends could supervise the contact before directing formal supervised contact.

The Bill gives effect to the government's decision announced last year to fund formal supervised contact sessions ordered by the Family Court. The government will fund a maximum of 14 supervised contact sessions per family, which reflects both the estimated average duration of supervised contact and the need for families to make their own long-term arrangements where appropriate.

(g) How is paternity determined?

Amendments to the Status of Children Act 1969 will allow men to apply for paternity orders in the Family Court. Currently only a mother may seek such an order - men wanting to prove paternity must apply to the High Court for a declaration. The Family Court will also be given concurrent jurisdiction with the High Court to make declarations of paternity. In addition, the amendments will allow the Courts to make an order or declaration that a man is not the father of a child.

(h) Does the Bill address concerns about the openness of Family Court proceedings?

The Bill makes a number of amendments aimed at making guardianship proceedings more transparent. The desire for increased transparency must, however, be balanced against the need for maintaining a forum where the frank discussion of personal matters can take place.

Family members or friends who have participated in any earlier Family Court counselling or mediation will be able to attend any subsequent hearings unless a party objects to their attendance and the judge decides to exclude that person. The rules on who may attend counselling and mediation have not changed but are under review in response to the Law Commission's Dispute Resolution in the Family Court report. The Bill will also permit wider publication of reports about guardianship proceedings but only if all identifying information is removed. The Bill also retains the ability for any person to make a request to a Judge to attend a hearing.

(i) How does the Bill fit in with the Law Commission's recent report Dispute Resolution in the Family Court?

The Bill is primarily concerned with the substantive law relating to guardianship and care arrangements for children within families. However, the reform process has been the first step in looking at the broader issues of how the Family Courts resolve disputes. Some provisions of the Bill dovetail with several of the Law Commission's recommendations. For example, the amendments aimed at making guardianship proceedings more transparent discussed above at (h), and by providing for better participation of children and their extended families in Family Court proceedings. The government is due to make a formal response to the Law Commission's report in October this year.

(j) What happened to the Law Commission's recommendation for one integrated Act dealing with all care of children issues?

The Law Commission, in its report Adoption and its Alternatives, recommended a Care of Children Act to incorporate adoption, guardianship, and care and protection legislation. Implementing this recommendation would mean the timing of the guardianship reforms were delayed. Instead the government decided to proceed with guardianship reforms ahead of any decision on an integrated Act.

(k) When will the Act come into force?

The Act will come into force on 1 July 2004.

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Ministry of Justice, New Zealand

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Briefing on the Care of Children Bill (June 2003)