Ministry for Vulnerable Children v KW [2017] NZFC 4721

Published 08 September 2017

Reserved judgment — guardianship orders — application to discharge custody orders — application to discharge guardianship orders — application for parenting orders — application for additional guardianship orders — special guardianship — application to appoint special guardian — Care of Children Act 2004 — Children Young Persons and their Families Act 1989. The second applicant was the current caregiver of the subject child and was that child's whanau. There was a dispute over how the carer should be legally recognised. The Ministry supported the application for the discharge of custody and guardianship orders in favour of the Ministry, but opposed a guardianship order for specific purposes. The caregiver applied to be made a special guardian of the subject child. The court noted that there were three routes under which the caregiver could be made a special guardian, and that the process for making a special guardianship order was not set out in the Children, Young Persons and their Families Act. The court acknowledged that each of the proposed routes contained difficulties for the caregiver. The court further noted that the Family Court Rules could not be used to fill gaps in the legislation where the matter was not one of procedure, and that the Family Court's "inherent powers" were limited to those arising from it's statutory jurisdiction. The court set out the issues that it faced in relation to the different avenues for making the caregiver a special guardian, including the requirements under a s 135 review process, and the definition of "guardianship". The court set out the legislative history of the legislation and related legislation, the purposes of the CYPF Act, and case law. The court was wary of shifting from "legislative interpreter" to "legislative drafter" in the way that it interpreted the reference in s 83 to "guardian". The court found that there was no pathway by which a special guardianship order could be made in favour of the caregiver with regard to procedural issues and in that the parents of the subject child had not consistently impeded the caregiver's exercise of her guardianship responsibilities and day-to-day care in a way that threatened the welfare of the child. The application to make the caregiver a special guardian was declined. The caregiver was appointed as an additional guardian for the subject child; and the custody and guardianship orders made in favour of the Ministry were discharged. Judgment Date: 4 September 2017. * * * Note: Names have been changed to comply with legal requirements * * *