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COC05

Care of Children Act 2004

NZ $55.00
incl GST
Judge Jan Doogue Alastair Logan
Her Honour Judge Doogue
Auckland
Alastair Logan
Roxx Dowling Marquet & Griffin
Dunedin

Published: 9 May, 2005
Pages: 212

Introduction

The explanatory note to the Care for Children Bill included the following statement:

This Bill replaces the Guardianship Act 1968 (the 1968 Act). The replacement Act will modernise the law about guardianship and care of children, so that it can more effectively promote the interests of children and satisfy the needs of all New Zealand families. The Bill also amends two other Acts that deal with the following closely related matters:

  • Family Courts’ procedures (Family Proceedings Act 1980)
  • Parental status (Status of Children Act 1969)

Family and ethnic demographics in New Zealand have changed considerably since the 1968 Act was enacted. The 1968 Act is premised upon a traditional nuclear family model that does not reflect the diversity of family arrangements that now exist in New Zealand. More modern legislation must provide a framework that recognises and supports all types of family units that care for children, for example, single-parent households, extended families, reconstituted families, and de facto relationships (including those of the same sex). That challenge is magnified when the varied cultural dimensions of families are considered.

In the lead up to the enactment of the Care for Children Act, commentators observed:

The Bill is far from a radical departure from previous child law in New Zealand, but looks instead to correct deficiencies, clarify inconsistencies and rectify faults with the current legislation. (Alan Goodwin, “Care of Children Bill”, NZLS Family Law Conference 2003)

This new Care of Children Bill really takes the cake for warm fuzzy legislation. It chucks the Guardianship Act 1968, but it substitutes 38 sections with 171 difficult and confusing clauses. You cannot navigate this legislation without real difficulty. Laws should not be like that. (Michael Guest, Otago Daily Times, 18 August 2003)

After hearing many submissions and reading all 270 or so of them, it seems to me that the only group that can claim any real reason to support the Bill are the various lesbian and homosexual witnesses who came before the committee supporting it because they believed it would improve their recognition by the courts. (Dail Jones MP, The New Zealand Herald, Thursday January 29, 2004)

The section will be making submissions to the select committee but generally it does not find the bill particularly controversial. Essentially it is a long needed update of the existing legislation to reflect the changes to the “nuclear” family and changes in the attitude towards children and separation over the last 30 or so years. (Sarah Spears, NZLS Secretariat, LawTalk, 606, 30 June 2003)

The Care of Children Act 2004 (“the Act”) replaces the Guardianship Act 1968 (“the Guardianship Act”). It amends the Family Proceedings Act 1980. The Act makes consequential changes to a number of other Acts. The companion enactment, the Status of Children Amendment Act amends the Status of Children Act 1969 and replaces Status of Children Amendment Act 1987.

The change in title is the first and most obvious change. For the public, the change in title may be intended to represent an updating and simplification of expression. The title may be a symbolic response to public demand for shared parenting of children.

The lawyer will note that the term “Care of Children” used in the title encompasses “guardianship”, “care”, and “contact”. The term “care” is used in the title in a much broader sense than in the Act itself. Nothing in the Act in fact gives recognition to any presumption of shared parenting.

No doubt “care” has been regarded as a more digestible and self-explanatory concept than “guardianship”, however, the traditional term “guardianship” is still invoked to encompass the “duties, powers, rights and responsibilities” of parents.

The purpose of this Act is expressed in terms designed to enhance children’s rights. It is at least arguable no real change has been made in this respect.

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