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November 2005

Grandparents' Rights

On 1 July 2005 the Care of Children Act 2004 (COCA) came into force replacing its predecessor, the Guardianship Act. COCA introduced a number of significant changes, some of which have been the subject of a previous article by Janine Williams in our Winter 2005 newsletter. The purpose of this article is to consider whether COCA met the expectations of wider whanau and family members (particularly grandparents) to provide for greater ability to those whanau and family members to make applications in respect of children.

Day-to-day care (previously called “custody”)

Under its predecessor, the Guardianship Act 1968, fathers, mothers, stepparents or guardians of children had automatic right to apply for custody. Any other person could apply for custody but only with the permission of the Court. The purpose of the barrier to any other persons, was to prevent the making of “frivolous, inappropriate or vexatious applications”.


Under COCA, little has changed. Parents, guardians or the partner of a parent may apply for a parenting order. A parenting order incorporates both day-to-day care and/or contact. The Act now recognises that “any other person who is a member of the child’s family, whanau, or other culturally recognised family group” may apply, but as with the predecessor statute, the permission of the Court is required. Therefore, as with the Guardianship Act, only parents, guardians and stepparents have the right to apply for a parenting order, all others (including grandparents) must ask the permission of the Court first. 

Contact
(previously called “access”)

Under the Guardianship Act, grandparents, aunts and uncles or siblings could apply for access with a child only if the parent had:-

(a) died; or

(b) been refused access by the Court; or 

(c) had not been attempting to exercise access. 

Only once one of those conditions was met could these other family members apply for access. Furthermore, it was limited to the class of people mentioned above. Permission of the Court did not have to be sought but neither did the Court have to order access, as there was a discretion left to the Family Court Judge.


Under COCA, although the group of people who can apply for contact has been broadened to include “any other person who is a member of the child’s family, whanau, or other culturally recognised family group” together with “any other person”, both of these groups require leave. However if, as with its predecessor statute, the parent of the child has died or has been refused contact or if the parent is not exercising contact, then the grandparents, siblings, and aunts and uncles have a right to apply for contact.


Guardianship matters

Guardianship is the right to have a say in the important decisions in a child’s life. There is no automatic right for grandparents to apply for guardianship either. As with applications for parenting orders, grandparents and other family members must seek permission of the Family Court to apply.

Conclusions

  • Apart from the liberalisation of the rules in that it is no longer necessary for the parent to have died, been refused access or not to be exercising access before a wider family group member can apply for contact, COCA has not enhanced the position of grandparents. 
  • • Under COCA, the Family Court’s discretion remains guided by the overall principle that all parenting orders must be made in the best interests of the child, and must promote the child’s welfare.