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APPENDIX 5. Excerpts from the Care of Children Bill 2003

Part 2—Guardianship and care of children

Subpart 1—Guardianship: responsibility for children, and decisions about children

Guardianship

14 Guardianship defined

(1) For the purposes of this Act, guardianship of a child means having (and therefore a guardian of the child has), in relation to the child,—

(a) all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child (for example, the role of providing day-to-day care for the child):

(b) every duty, power, right, and responsibility that is vested in the guardian of a child by any enactment:

(c) every duty, power, right, and responsibility that, immediately before 1 January 1970 (the date on which the Guardianship Act 1968 commenced), was vested in a sole guardian of a child by an enactment or rule of law.

(2) However, under section 25(5), no testamentary guardian of a child has, just because of an appointment under section 25, the role of providing day-to-day care for the child.

15 Further examples of guardianship

(1) Further examples of duties, powers, rights, and responsibilities of a guardian of a child are the guardian’s—

(a) contributing with other guardians of the child to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and

(b) determining (for or with the child), or helping the child to determine, questions about matters (for example, those in subsection (2)) affecting the child (in each case with other guardians of the child).

(2) The matters referred to in subsection (1)(b) are—

(a) the child’s name (and any changes to it); and

(b) where, and with whom, the child lives; and

(c) medical treatment for the child; and

(d) where, and how, the child is to be educated; and

(e) the child’s religious denomination and practice.

16 Exercise of guardianship

(1) A guardian of a child may exercise (or continue to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to the child, whether or not the child lives with the guardian, unless a Court order provides otherwise.

(2) In this section, Court order means a Court order made under this Act or any other enactment; and includes a Court order that is made under this Act and that embodies some or all of the terms of an agreement described in section 41(1) or section 42(2).

Natural guardianship

17 Child’s father and mother usually joint guardians

(1) The father and the mother of a child are guardians jointly of the child unless the child’s mother is the sole guardian of the child because of subsection (3) or subsection (4).

(2) To avoid doubt, a reference in this section (or elsewhere in this Act) to “the father of a child” is a reference to the same-sex de facto partner of the mother of the child if, by operation of Part 2 of the Status of Children Act 1969, that de facto partner is a parent of the child (see section 14(2) of that Act).

(3) If a child is conceived on or after the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—

(a) married to the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor

(b) living with the father of the child as a de facto partner at any time during that period.

(4) If a child is conceived before the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—

(a) married to the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor

(b) living with the father of the child as a de facto partner at the time the child was born.

(5) On the death of the father or the mother, the surviving parent, if he or she was then a guardian of the child, is the sole guardian of the child, unless an additional testamentary guardian of the child was appointed by the deceased parent under section 25(2).

(6) This section is subject to sections 18 to 33.

18 Father identified on birth certificate is guardian

If a child’s father is not a guardian of the child just because of section 17(3) or (4), then he becomes a guardian of the child if his particulars are registered as part of the child’s birth information under 1 of the following sections of the Births, Deaths, and Marriages Registration Act 1995:

(a) section 15(2)(b)(i) or (3)(a)(i) (registration at the request of the child’s mother and father):

(b) section 15(2)(b)(ii) or (3)(a)(ii) (registration at the request of the child’s mother, and on production of a notice in writing signed by the father, acknowledging that he is the child’s father and consenting to the recording of information relating to him):

(c) section 15(2)(c) or (3)(b)(i) (registration at the request of the child’s father, and on the child’s mother having confirmed that he is the child’s father).

19 Father who was not mother’s spouse or de facto partner may apply to be appointed as guardian

(1) If, because of section 17(3) or (4), a child’s mother is (or was at the time of her death) the sole guardian of the child, the child’s father may apply to the Court to be appointed as a guardian of the child.

(2) The father may apply to be appointed—

(a) as a guardian of the child as well as the mother or a testamentary guardian appointed under section 25; or

(b) as a guardian of the child instead of the mother or a testamentary guardian appointed under section 25.

(3) An application under subsection (2)(b) must include an application under section 28 for an order depriving the mother of the guardianship of her child or (as the case requires) removing the testamentary guardian from office.

(4) In response to an application under subsection (2), the Court—

(a) must appoint the father as a guardian of the child, unless to do so would be contrary to the child’s welfare and best interests; and

(b) must determine any included application under section 28 in accordance with that section.

20 Declaration that father is guardian because of section 17

(1) A man who alleges that he is a guardian of a child because of section 17 (other than because of an order under section 19) may apply to the Court for an order declaring that the man is a guardian of the child because of section 17.

(2) The Court may make the order if satisfied that the man—

(a) is a guardian of a child because of section 17; and

(b) has not been deprived of his guardianship by an order under section 28.

(3) The Declaratory Judgments Act 1908 applies, with all necessary modifications, to applications under subsection (1).

Subpart 2—Care of children: making arrangements and resolving disputes

Resolving disputes

38 Disputes between guardians

(1) When there are 2 or more guardians of a child, and they are unable to agree on a matter concerning the exercise of their guardianship, any of them may apply to the Court for its direction, and the Court may make any order relating to the matter that it thinks proper.

(2) If 2 or more persons have the role of providing day-to-day care for a child, and they are unable to agree on any matter affecting the welfare of the child, any of them may apply to the Court for its direction, and the Court may make any order relating to the matter that it thinks proper.

(3) If, under an order of the High Court, 2 or more persons are guardians of, or have the role of providing day-to-day care for, a child, the High Court has exclusive jurisdiction to settle disputes, unless the order has been removed into a Family Court under section 119.

39 Family Proceedings Act 1980 dispute-resolution provisions

(1) The sections of the Family Proceedings Act 1980 specified in subsection (2) apply to the proceedings if a spouse or de facto partner applies for an order under this Act relating to—

(a) the role of providing day-to-day care for a child of the marriage or a child of the de facto relationship; or

(b) contact with a child of that kind.

(2) The sections of the Family Proceedings Act 1980 are—

(a) section 10(4) and (5) (which relates to reference of the matter to a counsellor, and to a Family Court hearing not generally proceeding unless either spouse or de facto partner, not less than 28 days after the date of the reference, requests that the hearing should proceed); and

(b) section 19(1) (which, among other things, requires the Court to consider the possibility of a reconciliation between the spouses or de facto partners, or of conciliation between them on any matter in issue).

40 Certain children may seek review of parent’s or guardian’s decision or refusal to give consent

(1) A child of or over the age of 16 years who is affected by a decision or by a refusal of consent by a parent or guardian in an important matter may (unless the child is under the guardianship of the Court) apply to a Family Court Judge who may, if he or she thinks it reasonable in all the circumstances to do so, review the decision or refusal and make any order in respect of it that he or she thinks fit.

(2) A consent given by a Family Court Judge under this section has the same effect as if it had been given by the parent or guardian.

(3) Nothing in this section affects the provisions of the Marriage Act 1955 with respect to consents to the marriage of minors, but a child may apply under this section for a review of a parent’s or guardian’s refusal to consent to a de facto relationship between the child and another person (see section 9(3)(b)).

41 Agreements between parents and guardians about day-to-day care for, contact with, or upbringing of, child

(1) This section applies to an agreement between parents or guardians of a child (even if any of the parents or guardians is a minor), but only to the extent that the agreement relates to any of the following matters:

(a) who has the role of providing day-to-day care for the child:

(b) contact with the child:

(c) the upbringing of the child.

(2) A party to the agreement may request counselling in respect of a dispute relating to the agreement, under section 59(1).

(3) The agreement cannot be enforced under this Act.

(4) However, some or all of the terms of the agreement may be embodied in an order of the Court if, under 1 or more provisions of this Act other than this section (for example, under section 44),—

(a) some or all of the parties to the agreement may apply for the order; and

(b) the order may be made by the Court.

(5) The order may be enforced under this Act in the same way as an order that does not embody terms of an agreement.

Compare: 1968 No 63 s 18

42 Agreements between parents and donors about donors’ contact with, or role in upbringing of, child conceived as result of assisted human reproduction procedure

(1) In this section,—

“AHR procedure” has the same meaning as in section 14(1) { sic ? } of the Status of Children Act 1969

“child” means a child conceived, or proposed to be conceived, as a result of an AHR procedure

“donor”,—

(a) in relation to a child conceived as a result of an AHR procedure, means a donor of semen, or of an ovum, or of an ovum from which was derived an embryo, that was used in the procedure; and

(b) in relation to a child proposed to be conceived as a result of an AHR procedure,—

(i) means a donor of semen, or of an ovum, or of an ovum from which was derived an embryo, that is to be used in the procedure; and

(ii) includes a person who intends to be a donor of that kind; but

(c) in no case includes a person who intends to adopt the child

“parents”,—

(a) in relation to a child conceived as a result of an AHR procedure, means every person who is a parent of the child when the child is conceived as a result of the procedure; and

(b) in relation to a child proposed to be conceived as a result of an AHR procedure, means every person who will be a parent of the child if and when the child is conceived as a result of the procedure; but

(c) in no case includes a person who has adopted, or intends to adopt, the child.

(2) This section applies to an agreement between the parents of a child and a donor or donors (even if any of the parents or donors is a minor), but only to the extent that the agreement relates to any of the following:

(a) contact between the donor or donors and the child:

(b) the role of the donor or donors in the upbringing of the child.

(3) The agreement cannot be enforced under this Act.

(4) However, on an application for the purpose by a party to the agreement, the Court may, with the consent of all parties to the agreement, make an order of the Court that embodies some or all of the terms of the agreement.

(5) An order under subsection (4) may, to the extent that it relates to contact with the child, be enforced under this Act as if it were a parenting order relating to contact.

(6) Where parties to the agreement are unable to agree on a matter concerning the role of the donor or donors in the upbringing of the child (being a matter that is the subject of terms of the agreement that have been embodied in an order under subsection (4)), any of those parties may apply to the Court for its direction, and the Court may make any order relating to the matter that it thinks proper.

Compare: 1968 No 63 s 18; 1980 No 94 s 15

“Part 1

“Status of children generally

“Children of equal status whether or not parents are or have been married to each other

“2A Purpose of sections 3 and 4—

“The purpose of sections 3 and 4 is to remove the legal disabilities of children born out of wedlock.”

158 New heading inserted

The principal Act is amended by inserting, immediately before section 4, the following heading:

“Prior instruments and intestacies”.

159 New heading inserted

The principal Act is amended by inserting, immediately before section 5, the following heading:

“Presumptions as to parenthood”.

160 New heading inserted

The principal Act is amended by inserting, immediately before section 5A, the following heading:

“Grant of letters of administration and distribution of estates and property held upon trust”.

161 Warning notices

(1) Section 6C(1) of the principal Act is amended by repealing paragraph (a), and substituting the following paragraph:

“(a) advising the person served of his or her right to seek to establish the relationship in question by applying to a Family Court or to the High Court under section 10 for a declaration of paternity; and”.

(2) Section 6C(1)(b) of the principal Act is amended by omitting the words “the Court”, and substituting the words “a Family Court or to the High Court”.

162 New heading inserted

The principal Act is amended by inserting, immediately before section 7, the heading:

“Paternity”.

163 Recognition of paternity

Section 7(3)(b) of the principal Act is amended by repealing subparagraph (ii), and substituting the following subparagraph:

“(ii) after the expiration of any notice under section 6C(1) and without notice of any declaration of paternity made by a Family Court or by the High Court under section 10.”

164 Instruments of acknowledgment may be filed with Registrar-General

Section 9 of the principal Act is amended by repealing subsection (3), and substituting the following subsection:

“(3) If a Family Court or the High Court makes a declaration under section 10(1) or (1A), or a Family Court makes a paternity order under the Family Proceedings Act 1980,—

“(a) the Registrar of the Court must forward a copy of the declaration or order, as the case may require, to the Registrar-General for filing in his or her office under this section; and

“(b) on receipt of any such copy, the Registrar-General must file it accordingly as if it were an instrument of the kind described in section 8(2).”

165 Declaration as to paternity

(1) The principal Act is amended by repealing section 10(1), and substituting the following subsections:

“(1AA) In subsection (1)(a), ‘eligible person’ means—

“(a) a woman who alleges that a named person is the father of her child; or

“(b) a person who alleges that the relationship of father and child exists between the person and another named person; or

“(c) a person who wishes to have it determined whether the relationship of father and child exists between 2 named persons, if the person has a proper interest in the result.

“(1) A Family Court or the High Court may make a declaration of paternity (whether the alleged father or the alleged child or both of them are living or dead) if—

“(a) an eligible person applies to the Court for the declaration; and

“(b) it is proved to the Court’s satisfaction that the relationship exists.

“(1A) A Court considering an application under subsection (1) may, either on its own initiative or on an application for the purpose by a party to the proceedings, make a declaration of non-paternity (whether the alleged father or the alleged child or both of them are living or dead) if it is proved to the Court’s satisfaction that the relationship does not exist.”

(2) Section 10 of the principal Act is amended by repealing subsection (3), and substituting the following subsection:

“(3) If an application under subsection (1) is made—

“(a) to a Family Court, the provisions of the Family Proceedings Act 1980 (except sections 47 to 50) apply to the application as if it were an application for a paternity order under section 47 of that Act:

“(b) to the High Court, the provisions of the Declaratory Judgments Act 1908 apply to the application.”

(3) Section 10(4) of the principal Act is amended by omitting the words “or subsection (2) of this section shall”, and substituting the words “or subsection (1A) or subsection (2) must”.

166 New heading inserted

The principal Act is amended by inserting, immediately before section 11, the heading:

“Miscellaneous provisions”.

167 New Part 2 inserted

The principal Act is amended by inserting, after section 12, the following Part:

“Part 2

“Status of children conceived as result of AHR procedures

“Preliminary provisions

“13 Purpose of this Part—

“The purpose of this Part is—

“(a) to remove uncertainty about the status of children conceived as a result of AHR procedures:

“(b) to replace the Status of Children Amendment Act 1987 with provisions that continue the effects of that Act (except for the status of father without the rights and liabilities of a father), but also extend the status of parent to a woman living as a de facto partner of a birth mother.

“14 Interpretation—

“(1) In this Part, unless the context otherwise requires,—

“‘AHR procedure’ means one of the following artificial human reproduction procedures (whether or not the procedure is carried out in a clinical setting, or with the assistance of an independent registered health professional):

“(a) artificial insemination (that is, artificial insemination of a woman where the semen used for the artificial insemination—

“(i) is produced by a man who is not her partner; or

“(ii) is a mixture of semen part of which is produced by a man who is not her partner and part of which is produced by her partner):

“(b) a donor semen implantation procedure (that is, the procedure of implanting in the womb of a woman an embryo derived from an ovum produced by her and fertilised outside her body by the use of semen produced by a man who is not her partner):

“(c) a donor ovum or donor embryo implantation procedure (that is, the procedure of implanting in the womb of a woman (‘woman A’) an embryo derived from an ovum produced by another woman (‘woman B’) (whether or not woman B is woman A’s partner), being an ovum that has been fertilised by the use of semen produced—

“(i) by woman A’s partner; or

“(ii) by a man who is not woman A’s partner):

“(d) a donor semen intra-fallopian transfer procedure (that is, the procedure of transferring into the fallopian tubes of a woman an ovum produced by her together with semen produced by a man who is not her partner):

“(e) a donor ovum intra-fallopian transfer procedure (that is, the procedure of transferring into the fallopian tubes of a woman (‘woman A’) an ovum produced by another woman (‘woman B’) (whether or not woman B is woman A’s partner) together with semen produced—

“(i) by woman A’s partner; or

“(ii) by a man who is not woman A’s partner):

“(f) a donor embryo intra-fallopian transfer procedure (that is, the procedure of transferring into the fallopian tubes of a woman (‘woman A’) an embryo derived from an ovum produced by another woman (‘woman B’) (whether or not woman B is woman A’s partner), being an ovum that has been fertilised by the use of semen produced by a man who is not woman A’s partner):

“(g) an embryo (donor semen) intra-fallopian transfer procedure (that is, the procedure of transferring into the fallopian tubes of a woman (‘woman A’) an embryo derived from an ovum produced by woman A, being an ovum that has been fertilised by the use of semen produced by a man who is not woman A’s partner):

“(h) an embryo (donor ovum) intra-fallopian transfer procedure (that is, the procedure of transferring into the fallopian tubes of a woman (‘woman A’) an embryo derived from an ovum produced by another woman, being an ovum that has been fertilised by the use of semen produced by woman A’s partner)

“‘de facto partner’ has the meaning given to it by section 8 of the Care of Children Act 2003

“‘partner’,—

“(a) in relation to a woman who is married and to whom paragraph (b) does not apply, means the woman’s husband; and

“(b) in relation to a woman (woman A) who is married but is living with a man, or with another woman, as a de facto partner, means the man or other woman who is living with woman A as a de facto partner (and so does not mean woman A’s husband); and

“(c) in relation to a woman (woman A) who is not married but is living with a man, or with another woman, as a de facto partner, means the man or other woman who is living with woman A as a de facto partner

“‘partnered woman’ means a woman who—

“(a) is married; or

“(b) is married, but is living with a man, or with another woman, as a de facto partner; or

“(c) is not married but is living with a man, or with another woman, as a de facto partner

“‘woman acting alone’ means a woman—

“(a) who is not a partnered woman; or

“(b) who is a partnered woman, but has undergone an AHR procedure without her partner’s consent.

“(2) A woman who is not the birth mother of a child but who, by operation of this Part, is a parent of the child must, for the purposes of an enactment or rule of law (other than this Part) that refers to, or contemplates, a mother and a father of, or 2 parents of, a child, be treated so far as practicable in the same manner as the father of, or as the other parent of, the child.

“15 Application of Part—

“(1) This Part applies in respect of a pregnancy referred to in any of sections 16 to 21,—

“(a) whether the pregnancy occurred before or after the commencement of this Part:

“(b) whether or not the pregnancy resulted from a procedure carried out in New Zealand.

“(2) This Part applies in respect of a child born of a pregnancy referred to in any of sections 16 to 21,—

“(a) whether the child was born before or after the commencement of this Part:

“(b) whether or not the child was born in New Zealand.

“(3) Nothing in this Part affects the vesting in possession or in interest of any property that occurred before the commencement of this Part.

“Rule about maternity

“16 Woman who becomes pregnant is mother even though ovum is donated by another woman—

“(1) This section applies to the following situation:

“(a) a woman (‘woman A’) becomes pregnant as a result of an AHR procedure:

“(b) the ovum or embryo used for the procedure was produced by or derived from an ovum produced by another woman (‘woman B’).

“(2) In that situation, woman A is, for all purposes, the mother of any child of the pregnancy (whether born or unborn).

“Rule about when non-donor partner is parent

“17 When woman’s non-donor partner is parent, and non-partner semen donor or ovum donor is not parent—

“(1) This section applies to the following situation:

“(a) a partnered woman (‘woman A’) becomes pregnant as a result of an AHR procedure:

“(b) the semen (or part of the semen) used for the procedure was produced by a man who is not woman A’s partner or, as the case requires, the ovum or embryo used for the procedure was produced by, or derived from an ovum produced by, a woman who is not woman A’s partner:

“(c) woman A has undergone the procedure with her partner’s consent.

“(2) In that situation, woman A’s partner is, for all purposes, a parent of any child of the pregnancy (whether born or unborn).

“Rules about donors of genetic material

“18 Partnered woman: ovum donor not parent unless mother’s partner at time of conception—

“(1) This section applies to the following situation:

“(a) a partnered woman (‘woman A’) becomes pregnant as a result of an AHR procedure:

“(b) the ovum or embryo used for the procedure was produced by, or derived from an ovum produced by, another woman (‘woman B’).

“(2) In that situation, woman B is not, for any purpose, a parent of any child of the pregnancy (whether born or unborn) unless woman B is, at the time of conception, woman A’s partner.

“19 Woman acting alone: non-partner ovum donor not parent unless later becomes mother’s partner—

“(1) This section applies to the following situation:

“(a) a woman acting alone (‘woman A’) becomes pregnant as a result of an AHR procedure:

“(b) the ovum or embryo used for the procedure was produced by or derived from an ovum produced by another woman (‘woman B’) who is not woman A’s partner.

“(2) In that situation, woman B is not, for any purpose, a parent of any child of the pregnancy (whether born or unborn) unless woman B becomes, after the time of conception, woman A’s partner (in which case the rights and liabilities of woman B, and of any child of the pregnancy, are determined in accordance with section 22).

“20 Partnered woman: non-partner semen donor not parent—

“(1) This section applies to the following situation:

“(a) a partnered woman becomes pregnant as a result of an AHR procedure:

“(b) the semen (or part of the semen) used for the procedure was produced by a man (‘man A’) who is not her partner.

“(2) In that situation, man A is not, for any purpose, a parent of any child of the pregnancy (whether born or unborn).

“21 Woman acting alone: non-partner semen donor not parent unless later becomes mother’s partner—

“(1) This section applies to the following situation:

“(a) a woman acting alone becomes pregnant as a result of an AHR procedure:

“(b) the semen used for the procedure was produced by a man (‘man A’) who is not her partner.

“(2) In that situation, man A is not, for any purpose, a parent of any child of the pregnancy (whether born or unborn) unless man A becomes, after the time of conception, the woman’s partner (in which case the rights and liabilities of man A, and of any child of the pregnancy, are determined in accordance with section 23).

“Rights and liabilities if non-partner ovum donor or semen donor later becomes mother’s partner

“22 Non-partner ovum donor later becomes mother’s partner—

“If, in the situation to which section 19 applies, woman B becomes, after the time of conception, woman A’s partner—

“(a) woman B has, in relation to any child of the pregnancy, the rights and liabilities of a parent of the child, but, in the absence of agreement to the contrary, those liabilities do not include liabilities incurred before woman B becomes woman A’s partner:

“(b) any child of the pregnancy has, in relation to woman B, the rights and liabilities of a child of woman B, but, in the absence of agreement to the contrary, those liabilities do not include liabilities incurred before woman B becomes woman A’s partner.

“23 Non-partner semen donor later becomes mother’s partner—

“If, in the situation to which section 21 applies, man A becomes, after the time of conception, the woman’s partner—

“(a) man A has, in relation to any child of the pregnancy, the rights and liabilities of a parent of the child, but, in the absence of agreement to the contrary, those liabilities do not include liabilities incurred before man A becomes the woman’s partner:

“(b) any child of the pregnancy has, in relation to man A, the rights and liabilities of a child of man A, but, in the absence of agreement to the contrary, those liabilities do not include liabilities incurred before man A becomes the woman’s partner.

Compare: 1987 No 185 s 18

“24 Only first non-partner donor to later become mother’s partner becomes parent—

“Despite sections 19(2) and 21(2), a person cannot become a parent of a child under one of those provisions if another person has already done so through the application of the other of those provisions.

Amendments to other Acts

168 Births, Deaths, and Marriages Registration Act 1995 amended

(1) Section 15(3)(b)(iv) of the Births, Deaths, and Marriages Registration Act 1995 is amended by inserting, before the words “the High Court”, the words “a Family Court or”.

(2) Section 15(6) of the Births, Deaths, and Marriages Registration Act 1995 is amended by inserting, after the words “declaration made by”, the words “a Family Court or by”.