Guardianship

What are my legal rights and responsibilities as a caregiver?

The legal status of your full-time care of your grandchildren or whānau might not be clear cut in the beginning.  Court orders may have been made or an agreement reached within the family or nothing has happened yet to define the care arrangements.

It is important to know your legal status in relation to the children.  This guide and the links contained in it is designed to help you understand the legal landscape in New Zealand, but it is no substitute for getting your own legal advice from a lawyer.  For help in obtaining legal advice please click here.

The Care of Children Act 2004 and the Oranga Tamariki Act 1989 are the two key laws that affect the care of children in New Zealand.

If Oranga Tamariki have not applied to the court for any orders in respect of the children, or they have not been involved it is likely that the Care of Children Act 2004 will apply to your situation.  

Care of Children Act 2004

There are three main concepts to understand in the Care of Children Act in relation to the care of a child and your legal rights and responsibilities. These are "guardianship", "care" and "contact".

Guardianship

A guardian is someone who by law has all duties, rights, responsibilities and powers that a parent has in bringing up a child. The definition of guardianship under the Care of Children Act emphasises parental responsibilities rather than rights – being the responsibility to provide day-to day care, and contribute to the healthy development of the child.

The ‘rights’ you do have as a guardian include decisions about the child’s name, education, religion, medical treatment and where the child should live. ‘Powers’ include power to make applications to the court in regard to matters concerning the child and the power to enforce your day to day care rights.

Except in rare cases where the Court has removed the right of guardianship, a mother is always a guardian and for a child conceived after July 1st 2005, a biological father will be a guardian if he was married, in a civil union or in a de-facto relationship anytime between conception and birth of the child, or his name appears on the birth certificate as the father of the child.

A grandparent or whānau caregiver does not have the legal status as a guardian of the child unless it is granted by the Court.

Please note: that if you have the children in your care through an informal care arrangement and you have not been appointed by the Court as an additional guardian you cannot legally make guardianship decisions for the child. 

For example you cannot legally consent to medical treatment, take the children overseas or make any other guardian decision without the consent of the children's legal guardians. In most cases this will be the parents but in some cases guardianship can rest with the Chief Executive of Oranga Tamariki. 

See more information on that case below.  If the children are to be in your care long term you need to apply to the Family Court for parenting orders and additional guardianship of the children.

Guardianship can be achieved under the Care of Children Act 2004 or under the Oranga Tamariki Act 1989 and it is usual for a grandparent or whānau caregiver to make an application for additional guardianship at the same time as applying for Parenting Orders for the day-to-day care of the child.

Parenting Orders

Parenting Orders are also referred to as Care and Contact Orders.  Parenting orders are made by a Family/District Court Judge following the determination of an application made for parenting orders.  The process to obtaining an order can follow various paths. 

Some orders are made on an "interim" basis which usually means there is an expectation that a final hearing will take place to determine the care and contact arrangements for the child in the longer term.  The "interim" order is made to provide stability and certainty as to who has the legal rights and responsibilities for the child in the meantime.

Care

"Care" refers to who has the day to day care of a child (custody) an usually defines who the child lives with and who looks after the child for most of the time.

Contact

"Contact" (access) defines the who, when and how a child spends time with their parent(s) or other guardian(s) when they are not part of their day to day life.

For further information on the types of parenting orders that can be made please refer to the Family Justice website.

Supervised Contact (Access)

Often in the case of grandparent and whānau care there have been allegations of violence or abuse and the Court has made the decision that the parent(s) can only have contact with the children in a supervised setting.  For more detailed information on this type of contact please read this helpful brochure available from the Family Justice website.

The Aotearoa New Zealand Association of Supervised Contact Services (ANZASCS) provides helpful information about supervised contact with children in New Zealand.

If your grandchild/mokopuna or whānau child is required to have supervised access with his/her parent we recommend grandparent and whānau caregivers do not facilitate the supervised access within their own homes.  We recommend you use an accredited supervised access centre for your own safety and that of the child.

Children can often be unsettled after a supervised access visit with a parent.  This is a normal reaction and the unsettled period can last for days and can also begin before the access visits too.

To alleviate the child’s anxiety and stress we suggest you make sure to do something fun with the child immediately after the visit.  Such as playing in a playground or letting them run around and kick a ball around.  Whatever will help them to let of steam and any pent-up anxiety or frustration is helpful for them to get settled.

For further information on your rights and responsibilities under the Care of Children Act 2004, please refer to our GRG Handbook. 

If you need advice or assistance please contact your lawyer or for more general advice we can refer you to one of our advocates or your local GRG Support Coordinator for support.  Call 0800 GRANDS (0800 472637).

Resolving Parenting, Care and Contact Cases in the Family Court

See our section on the Family Court for further information on the new Family Court process for cases involving parenting disputes about children that have been initiated in the Family Court after 1 April 2014.  There are limits on when lawyers can be involved, with the emphasis being on dispute resolution between the parties through mediation.

However if the case is urgent or there is violence involved requiring an urgent application to the Court please contact a family lawyer without delay.  In these circumstances it may be necessary to apply to the court without notice.

Please note that the new Family Justice dispute resolution procedures that apply in the early stages do not apply to cases that have been before the Court before 1 April 2014. 

Oranga Tamariki Act 1989

It is the law in New Zealand that when a child can’t be raised by their parents and Oranga Tamariki (as agent for the State) becomes involved in decisions, they must first look to the family, whānau , hapu, iwi and family group for someone to take care of them before resorting to foster care, however in all decisions about the care of the child, their well-being and best interests are the first and paramount consideration, having regard to the principles set out in sections 5 and 13 of the Oranga Tamariki Act 1989.

• Central to this is the recognition that the primary role in caring for and protecting a child or young person lies with the child's or young person's family, whānau, hapu, iwi and family group wherever possible and that:
• the relationship between a child or young person and his or her family, whānau, hapu, iwi, and family group should be maintained and strengthened; and
• the family should be supported, assisted and protected as much as possible; and the child’s family should participate in the making of decisions affecting that child.

Assessment of Risk

When a child comes to the attention of Oranga Tamariki there must be an assessment or investigation to identify whether the child is at risk and in need of care and protection.

Following this assessment or investigation need to record whether or not harm was found to have happened.

There are a number of risk factors identified in section 14 of the Oranga Tamariki Act 1989 which determine if a child is in need of care and protection, in which case Oranga Tamariki is duty bound to intervene.

Principally these risk factors relate to harm or abuse whether actual or likely in relation to their physical, mental, emotional or sexual development and/or well-being.

• Oranga Tamariki uses the Safety and Risk screen which is a tool that social workers use to consider what the information they have gathered tells them about the risks, strengths and potential protective factors affecting the child at the time. This helps social workers decide whether:
• The child is safe without needing to take any other action
• The child is safe but more support might be needed
• The child may not be safe but can be supported to be safe with the right support in the home
• The child is not safe and urgent action is required to protect them.

In some cases this will lead to an urgent decision to seek a custody order or agreement to bring a child into care. 

No Further Action

This is when Oranga Tamariki’s assessment is that:

there is no substance to the report of concern, or

the information discloses no risk that the child or young person is in need of care or protection, or

the family/whānau are actively pursuing the safety and well-being of the child or young person and has willingness and capacity to respond, or

matters have already been reported and have been or are being dealt with by the police, family/whānau or other agency.

Oranga Tamariki

When Oranga Tamariki is involved, resolving care issues can take a number of different paths:

These paths may include the Hui-ā-Whānau process, a Family Group Conference or in cases that require urgency or there are significant care and protection concerns, Oranga Tamariki may seek custody and guardianship orders from the Court.  When the Chief Executive of Oranga Tamariki is named as the guardian of the child, it means that the child is in state care.

For further information, or if you need help or advice on these issues, please contact us on 0800 472 637 for a referral to one of our advocates.