Custody, guardianship and wardship
Updated: 10 July 2014
What's Important To Us
There are different court orders that have the effect of placing a child or young person in the care of the chief executive. It is important for the child or young person's social worker to understand the rights, powers and responsibilities that are applicable to each order and what is required of them as the delegated representative of the chief executive.
The following provides information about custody, guardianship and wardship and provides guidance around how to meet responsibilities when these orders are granted.
A child or young person can be placed in the custody of the chief executive under the provisions of the Oranga Tamariki Act 1989 by:
- agreement (sections 139, 140)
- emergency action (sections 39, 40, 42,48)
- Court order (sections 78, 101,102,110(2)(a),238(1)(d), 345, 311)
Under the Care of Children Act 2004 section 77(3)(a), a warrant can be executed to prevent the removal of a child or young person from New Zealand.
When a child or young person is in the custody of the chief executive, the chief executive is responsible for providing for the child or young person's day to day care. Day to day care includes:
- physical care and protection: food, clothing, shelter, oversight and supervision, and day-to-day health including dental care
- emotional and psychological care: promoting a sense of well-being, identity and esteem and providing opportunities for links to be maintained with the family group
- social and educational care: ensuring attendance at school, completion of homework, providing opportunities for interactions with peers and attendance at age-related social activities, and providing age appropriate guidance, boundaries, and expectations to contribute to the development of healthy values for child or young person
- spiritual and cultural development: providing opportunities for participation in cultural or spiritual groups and activities provided they are in keeping with the child or guardian's expectations
- contact: making all decisions regarding contact and abiding by any Court order in respect of contact.
The role of a guardian is set down clearly in sections 15 and 16 of the Care of Children Act 2004. A guardian is given all the rights, powers and responsibilities to make the major decisions about the upbringing of a child or young person regarding matters such as:
- education: where the child or young person will attend school, changing schools, after school education
- housing or place of residence: where the child or young person will live
- travel: overseas travel and passport applications
- religion (if any): choice of religion, religious education or religious ceremonies
- health care: consent to major medical, psychological, psychiatric or dental treatment, including blood transfusions, vaccinations, sterilisation
- choice of name: this applies to first, name and last name or family name
- marriage: consent to marriage of a young person between the ages of 16-19 years (inclusive).
While a child's mother is automatically a natural guardian, the child's father is a guardian only if:
- he was married to, or in a civil union, with the child's mother at any time from when the child was conceived until it was born
- the child was conceived before 1 July 2005 and he was living with the child's mother when the child was born
- the child was conceived on or after 1 July 2005 and he was living with the child's mother at any time between conception and the birth
- he was recorded as the father of the child on the birth certificate on or after 1 July 2005.
A father can apply to be appointed a guardian by the Family Court. The Court will do this unless doing so is against the child or young person's best interests. Other people can also be guardians of the child or young person. A child or young person can have more than one guardian, and they may include parents and any number of others.
A parent who is a guardian of a child or young person can appoint someone (called a testamentary guardian) to become a guardian of their child if that parent dies, or becomes incapable. The parent can do this either in their will or in a deed. If another guardian is still alive, the testamentary guardian becomes a joint guardian. Appointment as a testamentary guardian does not give an automatic right to custody of the child or young person.
The Court, under the Oranga Tamariki Act 1989 or the Care of Children Act, can appoint a guardian. This may include the chief executive of Oranga Tamariki.
The chief executive may be appointed as:
- a sole guardian
- an additional guardian
- a guardian for a specific purpose, for example, medical treatment.
A sole guardian exercises the rights, powers and duties of a guardian on their own. When a guardian is additional to another, decisions are made either collectively or consultatively with the other guardian/s. Where the guardians are not able to agree on decisions, the matter will need to be decided upon by the Family Court.
What is my role as the child or young person's social worker?
If the chief executive is appointed as an additional guardian this means you have the ability to be involved in guardianship decisions (as outlined above). It's important to remember that parents and significant others who remain guardians retain the right to be included in decision making.
Guardianship decisions can be incorporated in to case planning, for example if you know a child is enrolling at school then plan to have the discussion with the natural guardians about which school some time before the child turns five. Review meetings are an ideal place to discuss any guardianship matters and to incorporate them in to the plan.
Ideally all guardians will agree. However there will inevitably be times of disagreement. It is important then to understand the differing opinions and identify the impact on the child or young person. If the decision is not in their best interests then seek legal advice on ways to resolve any dispute among guardians.
If an urgent decision is required then all attempts are made to contact the guardian and seek their agreement. If the guardian is unable to be contacted and cannot be located, record why it has not been possible. Also record the reasons why the decision was made, in the best interests of the child or young person.
The Family Court or High Court can be appointed as a guardian of a child or young person. These are commonly known as Court wardships. The Court usually appoints the chief executive of Oranga Tamariki to act as its agent.
Generally, the agent is responsible for overseeing the safe care and wellbeing of the child or young person, and carrying out specific roles as directed by the Court. The Court relies upon the agent to monitor and inform it of the circumstances of the child or young person.
Decision making remains the prerogative of the Court.
On occasion, the Court will delegate some decision-making powers to the chief executive as an agent, for example to determine contact arrangements. When no directions or guidance have been given by the Court the agent is responsible for actively monitoring and reviewing arrangements. Any change to placement, contact or other arrangements for the child or young person must be decided upon by the court.
There is a need to ensure continuity in the performance of the role of agent. While inevitably changes of staff will occur, it is important that every effort is made to ensure there is consistency in the person or persons undertaking agent responsibilities.
Minors taking part in Family Court proceedings
Unless the Court orders otherwise a parent under the age of 18 years can only take part in Family Court proceedings with a litigation guardian.
A litigation guardian is an adult authorised to direct the proceedings on the minor's behalf. The person appointed consents to the appointment, performs the functions of a litigation guardian and is unlikely to have any conflicts of interest with the minor.
The Family Courts Rules 2002 have been amended so that:
- A minor is now a person under 18 years
- A minor can apply to take part in the proceedings without a litigation guardian if they are not prohibited by any enactment and are capable of making the decisions required or likely to be required and no reason exists that would make it in the interests of the minor to be represented.
If a litigation guardian is to be appointed this can occur by the Court of its own motion or upon interlocutory application (with or without notice).
In any case involving parents under the age of 18 years consult with legal services at an early stage.