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Legal Articles


Whose Kids Are They? The Care of Children Act 2004


Goodbye custody, farewell access - hello parenting orders. On the first of July 2005 the new Care of Children Act 2004 came into force. Some familiar old concepts were instantly sent to the rubbish bin of legal history as new ones took their place. Will this fresh approach change the way we parent our children in New Zealand, or are the changes just cosmetic tinkering that give us new names for old concepts? The jury is still out on that question.


However, parents will no longer be fighting over who has custody and who has only access. Those old orders often seemed to regard children as possessions rather than little living human beings with their own particular needs. There was a public perception that the difference between a custody order and an access order was that of winning and losing and this belief sometimes deflected parents from concentrating solely on achieving the best outcome for their children. The new parenting order is intended to outline how both parents will parent their children, even if at different times. It is envisaged that, wherever possible, both parents will play an active role in the day to day care of their children and that the role of grandparents, step-parents and other closely involved adults will also be taken into account when orders are made.


If the Family Court is asked to make a parenting order that does not seem to include a parent in the day to day care of a child the Court must consider making a contact order ensuring that the parent is involved in the child’s life. However, an abusive or violent parent cannot be part of an order that involves the day to day care of a child unless, after making an enquiry into the situation, the Court is satisfied that the child will be safe. Special conditions could be imposed or an order made for supervised access only.


The 2001 census recorded that over 4000 New Zealand grandparents had taken over the role of parents to their grandchildren. The Care of Children Act recognises the role that other family members may have in the care of children and one of the recorded principles of the Act is to preserve and strengthen relationships between children and other family members, who are “encouraged to participate in the child’s care, development and upbringing.” The category of persons who are automatically eligible to apply for a parenting order has been extended. Although grandparents will still generally have to obtain special leave of the Court to apply for a parenting order, in some circumstances, such as where a parent has died, been refused contact by the Court, or is simply making no attempt to have contact with his or her children, the grandparents automatically become eligible to apply.


In keeping with the social changes that have been reflected in other recent legislation the rights of de facto partners, civil union partners and partners of a parent have also been extended and specifically set out in the Care of Children Act. The extension of legal rights to de facto partners and civil union partners, where they are also a parent of a child of the relationship, probably will not provoke much comment. This change overcomes some shortcomings in the old Guardianship Act 1968 which did not deal with de facto relationships particularly well. However, the giving of defined rights to a parent’s partner to apply for guardianship and parenting orders may, having regard to some of the highly publicised step-parent abuse cases in recent years, be more controversial. Although there are restrictions on step-parents with certain criminal convictions, or a history of abuse applying for orders, the new provisions may cause concern to natural parents who hold genuine fears about the other parent’s current partner or know little about the partner’s background. There are of course many very responsible step-parents helping to bring up a partner’s children and recognition of their role is probably overdue but only time will tell whether the Care of Children Act approach has struck the right balance.


The Care of Children Act continues to make the welfare and best interests of children paramount in any dispute affecting them. The rights of children to be consulted, to have their views taken into account and to be legally represented are extended and clearly spelt out. Parents are expected to try and negotiate care arrangements for their children that involve both parents and other important family members. Parents will be expected to set aside their personal animosities and do what is best for their children. If the Act reverses the trend of recent years that has seen too many Kiwi fathers left uninvolved in the day to day care of their children it will be an improvement over the old law.



Disclaimer: The information contained in this article is of a general and summarised nature only. It should not be used as a substitute for obtaining personal legal advice.

© Terry Carson 2008

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