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When the Court Becomes Guardian

31 March 2015

A recent High Court decision - Auckland District Health Board v Dee [2015] NZHC 304 - has highlighted the power of the Court to intervene and make orders to ensure a child’s best interests are being met.

Here, the Court was appointed as John Dee’s guardian. The child is referred to as John Dee, a fictional name used to protect his identity. The personal details of his family members are also subject to permanent suppression orders. His father is referred to as James Dee.

The appointment of the Court as guardian was made as the result of John’s father’s refusal to allow John to be treated with antiretroviral medication, which was necessary because John has HIV. By refusing to allow his son to receive the necessary medication, James was in effect refusing to perform the duties and responsibilities of a guardian.

The Court accepted that the Act gave it the power to take over John’s guardianship but said that “it must first be convinced that this is the only way to serve John’s welfare and best interests”. A court will always be reluctant to remove a guardian and takes the matter very seriously.

The Care of Children Act 2004 (the Act) sets out the rules and responsibilities of a child’s guardian. A guardian has responsibility for:

• providing day to day care of the child; and

• contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and

• deciding questions about important matters affecting the child.

Ordinarily, a child’s guardian will be his or her mother, and in most circumstances and unless an exception applies, also the child’s father. A different or additional guardian can be appointed in certain circumstances e.g. when there is an eligible spouse or partner who wishes to be appointed or where a guardian is appointed under a deceased parent’s will.

The guardians are responsible for making the important decisions in a child’s life. The decisions which a guardian makes for a child include decisions about education, health care, names, place of residence and protection. It is the duty of protection that leads to it being an offence to leave a child under 14 without reasonable supervision for any length of time, or to cause the child suffering or injury. It is the guardians also who decide on a child’s culture, language and religious denomination and practice.

If there are two or more guardians the decisions above must be made by all guardians jointly. If the guardians can’t agree, then the Family Court can be asked to make the decision for the child.
The Court also has the power to remove a guardian, but will not do this unless:

- the parent is unwilling to perform or exercise the duties, powers, rights and responsibilities of a guardian, or
- the parent is for some grave reason unfit to be a guardian of the child; and
- the order will serve the welfare and best interests of the child.

The Court itself may also be appointed as the guardian of a child, which is what happened in the case of Auckland District Health Board v Dee.

The Court concluded that the only way to safeguard John’s welfare and best interests, given his father’s fixed opposition to John’s diagnosis and treatment, was for the Court to become John’s guardian until he is 16. Consequently the Court was appointed John’s guardian and in turn appointed John’s doctors as the Court’s agents to manage John’s on-going medical care. John’s father was also appointed as an agent of the Court to be responsible for John’s day to day care, subject to the provision that he must ensure that John is available for treatment as directed by his doctors. The Court’s guardianship will probably last until John turns 16 and can make his own medical decisions.

Jo Naidoo

 

Jo Naidoo is an Associate in the Family Disputes team at Norris Ward McKinnon. Jo can be contacted at jo.naidoo@nwm.co.nz