Children can be both a joy and a great responsibility. Whether your child has behaviour issues, disciplinary or other problems at school, or is facing day-to-day care decisions if you and your partner are considering separation, Rennie Cox can assist you in ensuring that your children's needs are well looked after, and their rights protected.
For millennia, laws have existed in relation to adoption. From the Code of Hammurabi (Babylon, 18th Century BC), the Laws of Solon (Athens, 6th Century BC), Justinian's Institutiones (Rome, 6th Century AD), to the New Zealand Adoption Act 1955, societies have wrestled with the social effects of adoption.
In New Zealand, adoptions within Aotearoa have dropped dramatically. If you are thinking of adopting a child, it is increasingly likely that you will need to look at inter-country adoption.
Whether you are a parent-in-waiting, or an adoptee looking for your birth parent, talk to us about how we can help you through the process.
There are two statutory schemes under which a child who has been abducted by a parent either from or to New Zealand may be returned, both contained in the Care of Children Act 2004. Where neither of these schemes applies, other mechanisms may be available in the particular case. These different schemes and mechanisms are summarised as follows:
- Reciprocal enforcement of parenting orders under the Care of Children Act 2004. The Act provides for reciprocal arrangements between New Zealand and certain other countries (currently only Australia and its states and territories) for the enforcement of orders concerning contact with, or the role of providing day-to-day care for, a child.
- The Hague Convention. The Care of Children Act 2004, which implements the Hague Convention on the Civil Aspects of International Child Abduction into New Zealand law, provides for the immediate return of abducted children where the two countries involved are both parties to the Convention.
- Other methods. When the Hague Convention doesn't apply, and there is no reciprocal arrangement for enforcement of parenting orders, the New Zealand Court will exercise jurisdiction in a case where a child has been abducted to New Zealand and is therefore within the jurisdiction. In these cases, the Courts will apply the statutory principle in the Care of Children Act 2004 that the welfare of the child is paramount and will consider the merits of the care and contact dispute. They will, however, take into account the fact that the child has been abducted, and also any overseas parenting order. If a child has been abducted from New Zealand in a case where neither the Hague Convention nor reciprocal enforcement of orders apply, a person whose rights concerning contact with, or the role of providing day-to-day care for, a child have been breached may be able to apply to the New Zealand Courts for remedies if the abductor is present in New Zealand, such as a habeus corpus writ. If the abductor is not present, there is the option of applying to the Courts in the country to which the child has been removed.
A High Court, District Court, or Family Court Judge may issue a warrant for a member of the police or a social worker to take possession of a child, using reasonable force if necessary, if the Judge has reason to believe that a person is about to take the child from New Zealand with the intention of:
- defeating the claim of a person who has applied for, or is about to apply for, the role of providing day-to-day care for, or an order for contact with, the child; or
- preventing compliance with any Court order (including an overseas custody order that has been registered in New Zealand) about the role of providing day-to-day care for, or contact with, the child.
The member of the police or social worker must place the child in the care of a suitable person pending the order or further order of the Court having jurisdiction in the case. The Judge may also order that tickets or travel documents, including the child's passport, be surrendered to the Court for a period and subject to conditions as the Court thinks fit. If no Judge is available a Judge's powers under these provisions may also be exercised by a Registrar of the High Court or of a District Court who is not a member of the police. Applications for a warrant to be issued are often made urgently and may be made ex parte or on limited notice.
Under the provisions in the Care of Children Act 2004 applying the Hague Convention, a High Court, District Court, or Family Court Judge may exercise the above powers when issuing a warrant where a person is about to take a child out of New Zealand with intent to, or in circumstances where the taking of the child out of New Zealand would be likely to:
- defeat the claim of a person who has made, or is about to make, certain applications and orders concerning a child abducted to New Zealand; or
- prevent an order for the return of a child from being complied with.
It is an offence if a person takes or attempts to take any child out of New Zealand without the leave of the Court, knowing that proceedings concerning the guardianship, day-to-day care, or contact with the child are pending or are about to be commenced, or knowing that a Court order (including an overseas order registered in New Zealand) conferring the role of providing day-to-day care for, or contact rights with, the child on any other person is in force, or with the intent of preventing such an order from being complied with. A parent wishing to take a child out of New Zealand for a proper purpose should apply to the Court for leave.
The practice has developed in the Family Court of granting the role of providing day-to-day care for a child on the condition that the child not be taken from New Zealand without the written consent of the other parent or the Court. The order is sufficient basis for a parent to apply to the New Zealand Police for the child to have a "CAPPS" listing, whereby the child's name is placed on a computer system run by Interpol to check all those leaving the country. The child is therefore unable to leave the country, and thus the effect is similar to obtaining a warrant to prevent removal.
When a child is about to be removed from New Zealand, the Court may invoke its jurisdiction to place the child under the guardianship of the Court.
Abduction issues are complex, and often urgent. If you need advice in this area, please contact Rennie Cox immediately.
What's in a number?
While a 15-year-old may drive a motor vehicle, a person may not obtain a licence for a firearm until he or she is 16 years old. A person may not buy an alcoholic drink in a hotel, however, until he or she is 18 years of age. Further, it is arguable that a young couple have the right to leave home and live together without parental consent before the age of 20 if they are sufficiently mature to make their own decisions. However, they may not marry without parental consent until they are 20, unless they obtain consent from the Family Court.
There is inconsistency as to the definitions with respect to age given by different enactments to "child" and related terms. In the Children, Young Persons and their Families Act 1989, "child"" refers to any person under the age of 14, while a "young person" means any person who has attained the age of 14 but who has not yet turned 17. In the Care of Children Act 2004, however, the term "child" refers to anyone under the age of 18. As to the age at which a person ceases to be a minor, full age is reached for all the purposes of the law of New Zealand at 20 years. Within the meaning of the Electoral Act 1993, however, a person becomes an "adult", and therefore eligible to vote, at the age of 18. Confused? You should be ...
The Care of Children Act 2004
The Care of Children Act 2004 introduced changes to terms used around the custody and access of children. 'Custody' is now called 'day-to-day care', while 'access' is now called 'contact'. The Act is the principal Act dealing with the care of children following the end of a relationship. The welfare of the child is the paramount consideration. If you are considering a relationship break-up, talk to Rennie Cox about the ways to minimise any negative effects on your children.
Child, Youth and Family (CYF) is the government agency that has legal powers to intervene to protect and help children who are being abused or neglected or who have problem behaviour.
CYF works with the Police and the Courts in dealing with young offenders under the youth justice system. It provides residential and care services for children in need of care and protection and for young offenders.
CYF assesses people who wish to adopt children and it reports to the Family Court on adoption applications.
CYF facilitates the exchange of identifying information for parties to past adoptions. The agency also funds community organisations working with children, young people and their families to support the community's role in protecting and helping children.
- your child is stood-down, suspended or expelled from school?
- your child objects to wearing a school uniform?
- your child is excluded from school for health reasons?
- you wish to force the school to reconsider what you believe is an unreasonable decision?
- your child is subject to search and seizure?
- your child is discriminated against?, or
- your child objects to some aspect of religion (or its absence) in the school?
Obviously, each circumstance must be considered on a case-by-case basis. Collate all of the relevant information and then call Rennie Cox to discuss the options available to you as a parent, and to your child.