SA v AA [2017] NZFC 9686

Published 27 August 2018

Special guardianship — whether jurisdiction exists — whether the court can make a special guardianship order — definition of guardianship — Oranga Tamariki Act 1989, ss 110, 113A & 125 — Care of Children Act 2004, s 15 — CN v Ministry for Vulnerable Children Oranga Tamariki [2017] NZFC 6962 — Sheehan v Watson [2010] 2 NZLR 419 (HC) — CE v KW [2017] NZFC 4721. The applicants sought to be appointed as additional guardians and special guardians of a child. The primary question for the court was whether it had the jurisdiction to make a special guardianship order. The court noted that there was a difficulty in appointing a guardian following a declaration as there was no reference in the legislation to the specific ability to appoint a “special” guardian, and that “guardian” and ”special guardian” had very different meanings. The court found that the only way that the applicant caregivers could succeed was if the court were able to imply that an order appointing a guardian could be interpreted as also covering the ability to appoint a “special guardian”. The court found that the concept of special guardianship with its wider powers to exclude the rights of other guardians was not envisaged at the time the legislation was drafted and the court accordingly found that the application must fail as there was no jurisdiction to make the special guardianship order. Further, the court noted that if it did have the jurisdiction to make a special guardianship order, the threshold must be higher than that required to appoint a guardian, and that that threshold had not been met in this case. The application for the appointment of special guardians was accordingly declined. Judgment Date: 30 November 2017. * * * Note: Names have been changed to comply with legal requirements * * *