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• Parenthood
• Guardianship
• Custody
• Fathers As Guardians

2. Parenthood, guardianship and paternity

Parenthood

Natural or genetic parenthood

2.1 There is no clear definition of “parent” in New Zealand law. It is assumed, rather than stated, that the woman who gives birth to the child is the child’s mother[12] and that the man whose sperm brings about the child’s conception is the child’s father.[13] In this paper we term natural parenthood “genetic parenthood”.

2.2 Parenthood in New Zealand law denotes genetic or gestational parenthood, except in two situations – adoption and donor-gamete conception – where the law gives this status to people who have no genetic or gestational relationship with the child.[14]

2.3 The legal rights and responsibilities of parenthood do not flow from genetic parenthood. They flow from guardianship, which is accorded to most genetic parents automatically by law upon birth of a child.[15] The one exception is the Child Support Act 1991, where liability for financial support of a child flows from the fact of genetic parenthood itself.

Statutory presumption of paternity

2.4 Under section 5 Status of Children Act 1969 a child born to a married woman is presumed to be the child of her husband (or former husband) if born during the marriage, or within 10 months of the marriage being dissolved.[16]

2.5 The purpose of section 5 was to avoid arguments over the paternity of children born during marriage. It had the advantage of establishing parenthood at a time when children born outside marriage suffered social and legal disadvantage. It ensured most children had the care and protection of their mother’s husband and that they had succession and maintenance rights.

2.6 Prior to the development of modern DNA parentage testing, the presumption was a useful mechanism for designating paternity. It could be displaced by evidence that another man was the child’s genetic father. Today, the presumption continues to provide a simple process for identifying fatherhood in the majority of cases where a child is born within marriage. The child is simply presumed by operation of law to be a child of the mother’s husband.[17]

2.7 Without the presumption, the child’s mother and father would have to register the child’s birth together, with each of them signing a statement that he is the father. This is what parents who are unmarried must do to register the father on the birth certificate. Where there is no cooperation between them, a declaration of paternity can be sought from the Court. The Court would consider DNA evidence of parentage.

2.8 However, the presumption is less relevant and necessary today than it was in previous decades. The law no longer discriminates against children whose parents are unmarried, and a significant and increasing number of children are born into one-parent families or families led by de facto or same-sex parents.

2.9 The presumption of paternity can have anomalous or undesirable consequences. A husband may be wrongly presumed to be the child’s genetic father and be entered as such on the child’s birth certificate. For example, if a child is conceived after parental separation, but born within ten months of the marriage being dissolved, the mother’s former husband is presumed to be the child’s father.

2.10 Opinion is divided over whether the presumption of paternity in the Status of Children Act 1969 extends to de facto relationships as well as marriages.[18] While some commentators see the Status of Children Amendment Act 1987 (which applies to de facto partners as well as married couples) as widening the ambit of the 1969 Act,[19] others do not.[20] The prescribed form on which a parent or guardian is required to register the particulars of a child’s birth suggests that the Registrar of Births does not acknowledge the presumption of paternity as arising out of de facto relationships. The notes on the official form indicate the father’s particulars will be automatically included in the birth register only when he is married to the mother.[21]

2.11 If there is to be a presumption of paternity should it apply only to children born within marriage? The Human Rights Act 1993 makes it unlawful to discriminate against a person on the grounds of that person’s marital status. International human rights instruments, which New Zealand has ratified, including the United Nations Convention on the Rights of the Child (UNCROC) and the International Covenant on Civil and Political Rights, affirm the child’s right to a family.

2.12 If the presumption of paternity does apply to de facto partners of a child’s mother, there are practical problems in determining the date on which the relationship commenced and ended.[22] Unlike marriage, where there is a public record of the ceremony and of an order for dissolution of the marriage, there is no equivalent public record of the starting and finishing date of a de facto relationship. It would have to be determined as a matter of law and fact when the relationship was “dissolved” for the presumption to apply.

2.13 In several Australian States and Territories there is a presumption of paternity where a man and woman have cohabited at any time between 44 and 20 weeks before the woman gave birth.[23] There is no equivalent provision in New Zealand.

Questions

Q1 Should the presumption of paternity be retained as part of New Zealand law?

Q2 If retained, should the presumption of paternity be extended to a de facto partner of the child’s mother?

Q3 If the presumption of paternity was extended to men in de facto relationships should it be based on cohabitation at any time between 44 and 20 weeks before the birth of the child (as in some Australian States) or on some other basis?

Reallocation of parenthood by statutory deeming provisions: gamete donor conception

2.14 For donor-conceived children, special statutory deeming provisions apply. These can be summarised as follows:

• if a woman who conceives with donated sperm has a husband or male de facto partner who has consented to the procedure, her spouse or male partner is deemed to be the child’s father for all purposes and the sperm donor is not the father;[24]

• if a woman who conceives with donated sperm does not have a husband or male partner, or if her husband or partner has not consented to the procedure, the sperm donor is the child’s father in law but does not have the rights and liabilities of a father;[25]

• if a woman conceives with a donated egg or embryo she is for all purposes the mother of the child and the egg donor is not the mother.[26]

2.15 Reallocation of parenthood in these situations is effected not by court order (as in adoption) but by statutory deeming provision. These provisions do not apply in the case of children conceived through sexual intercourse, even if the sole purpose of the sexual relationship is to enable the woman to conceive. The High Court has decided that the deeming provisions apply where a child is conceived by self-insemination of donor sperm, without the involvement of a health professional or fertility clinic.[27] These reallocations are open to the criticism that they create a “legal fiction” about the child’s genetic parenthood.

2.16 The Care of Children Bill 2003 proposes to amend the laws governing parenthood by granting parental status to the same-sex partner of the mother of a child born by means of donor gamete conception. The mother’s partner will be deemed to be the child’s parent if they live together as a couple and the partner has consented to the procedure.[28] The sperm donor is deemed not to be the child’s father.[29]

Reallocation of parenthood by court order: adoption

2.17 In adoption, the adoptive parents are deemed to be parents of a child, and the parenthood status of the birth parents is extinguished.[30] The consent of the birth parents must usually be obtained to the proposed adoption.[31] This reallocation of genetic parenthood in adoption, as well as the reallocation of the rights and responsibilities of parenthood, has been criticised for creating a legal fiction. The Law Commission issued a report entitled Adoption and Its Alternatives in 2002. Its findings are referred to in this paper where they interconnect with issues considered in this discussion paper.

Mäori customary practices: whängai

2.18 Mäori whängai placements are not recognised under the Adoption Act 1955.[32] Indeed, the characteristics of such placements are radically different from closed stranger adoption.[33] The interaction between mainstream law and whängai placements is not reviewed in this paper. However, an overview of whängai practices is set out below as a component of the background material to inform the consideration of issues and options for law reform.

2.19 For centuries, Mäori have had a recognised practice known as whängai or atawhai, whereby a child is given to family members to raise.[34] This tradition remains in operation today, particularly in some communities. Whilst the law regarding legal recognition of whängai has changed throughout history, the custom has been maintained regardless of the legal regime in operation at the time.

2.20 The giving of a child to others to raise can be permanent or temporary. Children are not the “property” of their parents, but rather belong to the whänau, hapü and iwi. Parents are said largely to hold their children “in trust” for their immediate relatives and the tribe generally.[35]

In Maori thinking, children are not the exclusive possession of their parents. Indeed the ideas of possession and exclusion, separately or in association, outrage Maori sensibilities. Children belong not only to their parents but also to the whanau, and beyond that to the hapu and iwi. They are a ‘a tatou tamariki’ (the children of us many) as well as ‘a taua tamariki’ (the children of us two) ... They belong to a descent group but at any given time are held by individuals on its behalf, in trust for future generations.[36]

2.21 While there are countless examples in Mäori custom of children being raised by a number of adults in their whänau, sometimes including birth parents but not always, in diverse situations for diverse reasons, the principles that underlie all such arrangements are the same.[37] They are:

• openness;

• placement within the family;

• whakapapa[38] and whanaungatanga.³⁹

2.22 Children are aware of their birth parents and other family members and usually maintain contact with them. Children are encouraged to know their whakapapa and how they are connected to others in their hapü and iwi. Placement is not necessarily for all of childhood – it can be for an indefinite period. Ultimately, it depends upon the circumstances. An “atawhai” has been described by one Mäori woman as “born of her heart though not her womb”.

2.23 There are many situations that could give rise to children being cared for by others, along with or instead of their parents. A common reason is the ability of the proposed caregiver to provide a more stable environment and better quality of life than that proposed by the birth parents. This can be seen where grandparents are responsible for the care of their grandchildren while the birth parents are engaged in employment activities. In whängai arrangements, grandchildren are able to live with the grandparents and be cared for by them. The grandparents are recognised as being able to spend quality time and energy in nurturing the child, whilst the birth parents are able to focus their attention on providing material needs.

2.24 Infertility is another reason for whängai arrangements.[40] Loneliness in old age or special skills in nursing a sick baby are others.[41] Instilling cultural knowledge in a child marked for leadership is another reason why older persons take over the care of a young child. Indeed, it is and was a common practice for children to be raised by their grandparents for educational purposes. This is a vital way in which mätauranga and Mäoritanga (Mäori knowledge and culture) is transferred from one generation to the next.

2.25 Grandparents may take grandchildren to assist their own children with the burden of childrearing when they have many children.[42] Whängai placements are also used as a means of strengthening relations within a hapü or iwi.

In whanau which are functioning as they ought, parents are expected and expect to share the care and control of their children with other whanau members. Sometimes, especially with firstborn, this means relinquishing their daily care and/or legal control over them to grandparents or other senior relatives, either temporarily or permanently ... When children have only one parent for any reason, the lack is supplied by other whanau members; as long as the whanau is functioning effectively, they have no lack of role models.[43]

2.26 Placement of children outside a whänau, hapü or iwi was uncommon. A child who was adopted by a stranger was considered to be vulnerable and to have little protection.[44]

Guardianship

2.27 New Zealand law draws a distinction between parenthood, which is based upon the genetic/gestational link between parent and child,[45] and guardianship, which confers on the guardian responsibilities and rights necessary for the care and upbringing of the child.

2.28 Under section 3 of the Guardianship Act 1968 every guardian is entitled to:

• The right to possession and care of the child (unless there is a court order giving custody to someone else).

• The right of control over the upbringing of the child. This includes the right to make (jointly with any other guardian of the child)[46] important decisions about the child’s life.

2.29 While the legal definition of guardianship makes no reference to responsibilities, it is clear from section 10(2) of the Guardianship Act 1968 that a guardian has responsibilities towards the child as well as rights. In the recent past, courts have stressed that parenthood is about responsibilities towards the child rather than rights to control the child.[47] It has been said that guardianship gives the guardian rights against others, not rights against the child[48] and that the rights conferred on parents must be exercised for the benefit and welfare of their child.[49]

Natural guardians

2.30 The Guardianship Act 1968 vests in all gestational mothers and most genetic fathers the rights and responsibilities of guardianship. A man is a guardian in law if he is married to the child’s mother or is in a de facto relationship with her when the child is born.[50]

2.31 Guardianship flows automatically from their status as the child’s legal parents and does not require approval from the Court or any government agency. The law assumes that, by virtue of their parenthood, the child’s parents have the necessary commitment and qualities to provide adequately for the child’s needs – or to at least make satisfactory arrangements for others to meet those needs. A parental guardian can have his or her guardianship rights removed for serious failure to meet parental responsibilities.[51]

Guardianship resulting from deemed parenthood

2.32 Adoptive parents are deemed to be the child’s legal parents and, on the making of an adoption order, acquire guardianship rights and responsibilities in relation to their adopted child.[52]

2.33 The husband or de facto male partner of a woman who conceives using donated sperm is deemed to be the father of the resulting child provided he consented to the procedure.[53] As a parent of the child he acquires automatic guardianship rights and responsibilities if he is married to the mother or was living with her at the time of birth. The sperm donor is deemed not to be a parent of the child.

Children with only one guardian

2.34 While most children have at least two guardians, it is not unusual for a child to have only one guardian. If the father is not married to the child’s mother, and was not living with her in a de facto relationship at the time of the child’s birth, he is not a guardian unless he obtains a guardianship order through the Family Court.[54] A child adopted by a sole applicant will only have one guardian.[55]

Additional guardians

2.35 It is possible for a child to have more than two guardians. A person other than a natural, adoptive or deemed parent can acquire guardianship rights and responsibilities in relation to a child by way of a Family Court guardianship order.[56] Court-appointed guardians are often described as additional guardians to distinguish them from parental guardians who are known as natural guardians. There are no restrictions on who can apply for a guardianship order but the applicant must satisfy the Court that the child’s welfare will be promoted by making the appointment.[57]

2.36 Where there are two or more guardians of a child, each guardian has an equal right to be involved in important decisions in relation to the child’s upbringing. The courts have shown some reluctance to appoint multiple guardians out of concern that the more guardians there are, the greater the risk there is of disagreement over the child’s upbringing.

2.37 Unlike parental guardians, a court-appointed guardian can be removed if the Court is satisfied the appointment no longer serves the child’s welfare.[58]

When guardians cannot agree

2.38 Each guardian of a child is entitled to be involved in decisions about the child’s upbringing.[59] The fact that one guardian has custody of the child does not give that guardian exclusive rights to make decisions about the child’s names, religion, education, health care and other important matters. Each guardian has a responsibility to consult with other guardians on such matters. If, after consultation and discussion, the child’s guardians cannot agree on an issue, they may apply to the Family Court to determine the matter in accordance with the best interests of the child.[60] In making such an order the Court must treat the welfare of the child as the first and paramount consideration.[61]

Changes to guardianship in the Care of Children Bill 2003

2.39 The Care of Children Bill currently before Parliament contains more detail about guardianship responsibilities. Every guardian will have the right and responsibility to contribute to the child’s intellectual, emotional, physical, cultural and other personal development.[62] The Bill gives examples of decisions that fall within the ambit of guardianship responsibilities and rights:

• the child’s name and any changes to that name;

• where and with whom the child shall live;

• medical treatment for the child;

• where and how the child is to be educated;

• the child’s religious denomination and practice.[63]

2.40 The Care of Children Bill 2003 recognises that guardians’ powers to control the upbringing of children diminish as children grow older and develop the capacity to make decisions for themselves. Clause 15(1)(b) suggests that guardians of younger children should make decisions with the child, and that the role of guardians of older children is to help the child to make a decision.

Custody

2.41 Custody is defined as “the right to possession and care of a child”.[64] In practical terms, a custody order determines with whom the child will live and who will be responsible for the child’s day-to-day care. A custody order confers narrower rights and responsibilities than guardianship.[65] If parents separate and there is a disagreement over where and with whom the children will live the Family Court may be asked to make a custody order.

2.42 Obviously, a child cannot live in two places at once. The Court will often make a sole custody order in favour of one or other parent. The courts have been more inclined recently to make a divided custody order (sometimes known as shared custody or joint custody).[66] Divided custody orders stipulate that one parent shall have custody of a child for certain days of the week and the other parent for the remaining days. The courts have tended to move away from the traditional custody/access dichotomy. In the words of Baragwanath J:

To assume that the paradigm of a unified marriage in a single home means that the child of separated parents must live primarily with one parent or another unless the relationship is harmonious overlooks the possibility that in some cases it may be in the child’s best interests to have two homes – not one.[67]

2.43 Changes foreshadowed in the Care or Children Bill 2003 will replace the term custody order with parenting order. A parenting order will provide for a child’s day-to-day care.[68] It may also determine what contact a parent will have with his or her child.[69] A parenting order providing for contact with the child is the equivalent to an access order under the Guardianship Act 1968.

fathers as guardians

2.44 A genetic father who is not married to his child’s mother or living with her in a de facto relationship at the time of the child’s birth is not an automatic guardian under current law.[70] He may be recognised as a legal father, but will have no legal right to make or be consulted about major decisions affecting the child, such as residence, education and religion. If the child’s mother decides to place the child for adoption his consent will only be required if the Family Court considers it expedient.[71]

2.45 Some fathers who are not guardians reach an agreement with their child’s mother as to contact and the role they will play in their child’s life. However, if they are unable to agree, or if the father wants to acquire guardianship rights and responsibilities in law, he needs to apply either for adoption or for an order appointing him an additional guardian. There is no guarantee that a guardianship order will be made, especially if the child’s mother opposes the application or the Court finds it would not be in accordance with the child’s best interests.[72] Even if a father is not a guardian, however, he can still apply for custody[73] or access[74] as the child’s legal parent.

2.46 It has been argued that the current laws governing guardianship are inherently unfair. Some fathers want rights and responsibilities in respect of their children and are critical of laws that withhold guardianship rights that are accorded automatically to mothers and to married and cohabiting fathers. Part of their dissatisfaction stems from the fact that they are liable for child support[75] although they are not guardians and may have limited or no contact with their children. Issues concerning guardianship and fathers are not within the Terms of Reference. They are addressed in the Care of Children Bill 2003.

Changes foreshadowed in the Care of Children Bill 2003

2.47 The Care of Children Bill, if passed in its present form, will make a notable change in the law by making more fathers guardians of their children. Two additional groups of fathers will become entitled to automatic guardianship of any child conceived on or after the commencement of the Act:

• fathers who have lived with the mother at any time between the child’s conception and birth;[76]

• fathers whose name and particulars are registered on the child’s birth certificate with the mother’s consent.[77]

2.48 The first of these provisions is not retrospective.[78] The second provision may be retrospective and confer guardianship on fathers whose name was on the birth certificate prior to the Care of Children Bill coming into force, but statutory provisions are usually interpreted in a way that avoids restrospectivity. It might be argued that mothers who agreed to the father’s name being included on the birth certificate at a time when this did not confer guardianship should not suddenly be thrust into the position of having the father as co-guardian.

2.49 The Bill further strengthens the position of non-cohabiting fathers in that clause 19(4)(a) states that the Court must appoint a father as a guardian of the child on application unless to do so would be contrary to the child’s best interests and welfare. This is a significant change in existing guardianship laws. It introduces what amounts to be a rebuttable presumption that it will be in a child’s interests to have a father with guardianship responsibilities and rights. The Bill falls short of providing automatic guardianship to all genetic fathers.

The place of fathers in adoption

2.50 The Ministry of Justice has advised that, as part of its current review of adoption legislation, it is recommending that social workers be required to make reasonable efforts to identify and locate the father of a child intended for adoption in order to seek his consent. This accords with the Law Commission’s recommendations in Report 65 Adoption and Its Alternatives and stems from a recognition that a father has a right to be consulted before steps are taken to obtain an adoption order that will extinguish his fatherhood. The principles of natural justice support such a right.[79] Support can also be found in the child’s right to know about his or her birth origins.[80]