A Call for Reform of Special Guardianship Legislation in New Zealand

Abstract

This paper contends that special guardianship legislation in New Zealand is in need of reform. Special guardianship orders (SGOs) provide permanency akin to adoption, though unlike adoption, SGOs preserve the connection between a child and their birth family. However, the law surrounding SGOs is currently incoherent and restrictive. Three reasons are identified. First, the current scheme enacts a dual pathway; an applicant who has existing guardianship orders under the Care of Children Act 2004 (COCA) must meet a higher threshold test compared to an applicant without such orders. As a result, SGOs are only available where the stability of a placement is being threatened by another guardian's interference. Second, an applicant must navigate a complex route through the Oranga Tamariki Act 1989 (OTA) when applying under the lower threshold route. Third, the empowering legislation is positioned under the OTA which imports a restrictive contextual requirement of child abuse and neglect, barring access of carers to SGOs even with the consent of birth parents. This paper proposes three options for reform. The first streamlines the legislation under the lower threshold route. The second extinguishes the dual pathway. The third, and preferred option, encompasses the changes in option two whilst placing the enabling legislation in the COCA to remove the contextual requirements of the OTA.