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The Care of Children Act 2004 came into force on 1 July 2005 and replaces the Guardianship Act 1968. It is the first major reform of private law affecting children and families in 36 years. Some of the important changes that have been made by the Act are the laws regarding the guardianship of children, arrangements for the care of children and the resolution of disputes regarding any care arrangements for children. The Act makes the welfare of the child the most important priority. Emphasise is now placed on children needing to 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 has shifted the focus away from parents’ rights, towards parents’ responsibilities towards their children. Fundamentally, the welfare and best interests of children is always the first and most important issue in any dispute regarding them. Some of the changes made to the Act are:
The aim of the Act has been to modernise the law as to guardianship and care of children so that it will more effectively promote the interests of children and satisfy the needs of all New Zealand families (General Policy Statement on Care of Children Bill – 2003 No 54-2). FREQUENTLY ASKED QUESTIONS How do the Courts decide what is in the best interest of children? The Courts look at a number of different factors when considering the best interest of children. Some factors that the Court will consider include:
Can a child have a lawyer? Yes, a lawyer for the child represents the child through the Court process and in any negotiations between the parents or other parties involved. It is the lawyer’s job to find out the child’s views and make the Judge aware of them. They need to make sure that the child’s best interests and all issues affecting their welfare are put before the Court for consideration. The lawyer must explain to the child the Court process and the Judges decision regarding the child. The Act strengthens the requirements that a child involved in Family Court Proceedings is given a reasonable opportunity to say what they think should happen and who they should live with. The Judge must take the child’s views into consideration when making a decision. Can a Child appeal a Family Court decision? Yes, the Act gives children the right to appeal most decisions that affect them, including Parenting Orders. The lawyer for the child will explain the right of appeal if the child wants, assist with lodging an appeal on their behalf. What is the definition of a Guardian? A guardian is a person who has duties, rights and responsibilities in relation to a child’s upbringing. The Mother of a child is always the natural guardian of a child. The Court has the authority to appoint additional guardians. When does Guardianship cease? The Act lowered the age from 20 years to 18 years at which the guardianship of a child ends. Guardianship will also end if a child who is 16 years or 17 years gets married, enters into a civil union, or starts a de facto relationship. The age of 18 years is consistent with New Zealand’s international obligations under the United Nations Convention on the Rights of the Child. Are Parents able to make their own Arrangements regarding the Care of their Children? The Act encourages Parents to co-operative and agree on arrangements for the care of their children. The Family Court will only intervene where parents disagree on the care of their children and cannot sort it out between themselves or with the assistance of Court appointed counselling sessions. What happens if an Agreement cannot be reached during 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. Mediation allows a Family Court Judge or sometimes a professional mediator to help assist the parents trying to reach agreement. And if Mediation fails? If neither counselling nor mediation work for the parties, the last resort is a formal Court hearing. At the end of the hearing the Court can make a Parenting Order, which will decide:
For more information on Parenting Orders, see our Parenting Order section
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