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Guardianship Act 1968

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

GUARDIANSHIP ACT 1968

1968/63 (NZ) – 1 January 1970

1 Short title

2 Interpretation

3 Definition of custody and guardianship

Jurisdiction

4 [Repealed]

5 Personal jurisdiction

Natural Guardianship

6 Guardianship of children

6A Declaration as to guardianship of father

Appointment and Removal of Guardians

7 Testamentary guardians

8 Court-appointed guardians

9 Wards of Court

10 Removal of guardian

11 Custody orders

12 Orders in other proceedings

Disputes

13 Disputes between guardians

14 Review of guardian’s decision or refusal to give consent

Access

15 Access rights

16 Access of other relatives on death of parent

Variation and Enforcement of Orders

17 Variation or discharge of orders

18 Effect of custody agreements

19 Enforcement of custody and access rights

20 Preventing removal of child from Niue

Marriage of Child

21 Termination of guardianship

22 Domicile of married minor

Miscellaneous Provisions

23 Welfare of child paramount

24 Custody of children over 16

25 Consents to operations

26 [Repealed]

27 Procedure and costs

28 Evidence

29 [Repealed]

30 Solicitor or counsel may be appointed

31 Appeals

32 Regulations

33 Act to be code

34 [Repealed]

35-38 [Spent]

SCHEDULE

____________________________

To define and regulate the authority of parents as guardians of their children, their power to appoint guardians, and the powers of the courts in relation to the custody and guardianship of children

1 Short title

This is the Guardianship Act 1968.

2 Interpretation

In this Act –

"child" means a person under the age of 20 years;

"near relative" means a step-parent, grandparent, aunt, uncle, brother, or sister; and includes a brother or sister of the half-blood as well as of the full-blood;

"upbringing" includes education and religion.

3 Definition of custody and guardianship

For the purposes of this Act –

"custody" means the right to possession and care of a child;

"guardianship" means the custody of a child (except in the case of a testamentary guardian and subject to any custody order made by the Court) and the right of control over the upbringing of a child, and includes all rights, powers, and duties in respect of the person and upbringing of a child that were at the commencement of this Act vested by any enactment or rule of law in the sole guardian of a child. Jurisdiction

4 [Repealed by 2004/270]

5 Personal jurisdiction

(1) The Court shall have jurisdiction under this Act –

(a) Where any question of custody, guardianship, or access arises as an ancillary matter in any proceedings in which the Court has jurisdiction; or

(b) Where the child who is the subject of the application or order is present in Niue when the application is made; or

(c) Where the child, or any person against whom an order is sought, or the applicant, is domiciled or resident in Niue when the application is made.

(2) Notwithstanding subsection (1) the Court may decline to make an order under this Act if neither the person against whom it is sought nor the child is resident in Niue and the Court is of the opinion that no useful purpose would be served by making an order or that in the circumstances the making of an order would be undesirable.

Natural Guardianship

6 Guardianship of children

(1) Subject to this Act, the father and the mother of a child shall each be a guardian of the child.

(2) Subject to this Act, the mother of a child shall be the sole guardian of the child if –

(a) She is not married to the father of the child, and either –

(i) has never been married to the father; or

(ii) her marriage to the father of the child was dissolved before the child was conceived; and

(b) She and the father of the child were not living together as husband and wife at the time the child was born.

(3) Where the mother of a child is, or was at the time of her death, its sole guardian by virtue of subsection (2) the father of the child may apply to the Court to be appointed as guardian of the child, either in addition to or instead of the mother or any guardian appointed by her, and the Court may make such order on the application as it thinks proper.

(4) On the death of the father or the mother the surviving parent, if he or she was then a guardian of the child, shall, subject to this Act, be the sole guardian of the child.

6A Declaration as to guardianship of father

Any man who alleges that he is a guardian of a child by virtue of section 6 (other than by a virtue of an order under subsection (3)) may apply to the Court for an order declaring that he is a guardian of the child, and, if it is proved to the satisfaction of the Court that the allegation is true, and that the man has not been deprived of his guardianship the Court may make the order.

Appointment and Removal of Guardians

7 Testamentary guardians

(1) The father or the mother of a child (including an unborn child) may by deed or will appoint any person to be a guardian of the child after his or her death, and that person is in this Act referred to as a testamentary guardian.

(2) If the person appointing a guardian under subsection (1) is himself a guardian of the child at his death, the testamentary guardian shall thereupon if he is of full age and capacity be either sole guardian or a guardian in addition to any other guardian.

(3) If the person appointing a guardian under subsection (1) is not himself a guardian at his death, the testamentary guardian may apply to the Court, and the Court may appoint him as a guardian accordingly.

(4) Notwithstanding any enactment or rule of law, a child may appoint a guardian by deed or will under subsection (1).

8 Court-appointed guardians

(1) Subject to the provisions of this section, the Court may on application made for the purpose or on the making of an order under section 10, appoint a guardian of a child either as sole guardian or in addition to any other guardian, and either generally or for any particular purpose, and either until the child attains the age of 20 years or sooner marries, or for any shorter period.

(2) The High Court shall have exclusive jurisdiction to appoint and remove a guardian ad litem in respect of any proceedings before that or any higher court, and may appoint or remove a guardian ad litem in respect of any proceedings before any other court.

9 Wards of Court

(1) The Court may upon application order that any unmarried child be placed under the guardianship of the Court, and may appoint any person to be the agent of the Court either generally or for any particular purpose.

(2) An application under subsection (1) may be made –

(a) By a parent, guardian or near relative of the child;

(b) [Repealed by 2004/270]

(c) By the child, who may apply without guardian ad litem or next friend;

(d) With the leave of the Court, by any other person.

(3) (a) Between the making of the application and its disposal, and after it if an order is made, the Court shall have the same rights and powers in respect of the person and property of the child as the Court possessed immediately before the commencement of this Act in relation to wards of Court.

(b) The Court shall not direct any child of or over the age of 18 years to live with any person unless the circumstances are exceptional.

(c) Where any child under the guardianship of the Court marries without the Court’s consent the Court shall not have the power to commit that child or his or her spouse for contempt of Court for so marrying.

(4) A child who has been placed under the guardianship of the Court shall cease to be under such guardianship when the Court so orders or when the child reaches the age of 20 years or sooner marries, whichever first occurs.

10 Removal of guardian

(1) The Court may on application by the other parent or by a guardian or near relative or, with the leave of the Court, by any other person deprive a parent of the guardianship of his child or remove from his office any testamentary guardian or any guardian appointed by the Court.

(2) No parent shall be deprived of the guardianship of his child under subsection (1) unless the Court is satisfied that the parent is for some grave reason unfit to be a guardian of the child or is unwilling to exercise the responsibilities of a guardian.

11 Custody orders

(1) Subject to section 24 the Court may on application by the father or mother, or a step-parent, or a guardian, of a child or with the leave of the Court by any other person, make such order with respect to the custody of the child as it thinks fit.

(2) Any order made under subsection (1) may be made subject to such conditions as the Court thinks fit.

12 Orders in other proceedings

(1) Subject to section 24, in any proceedings for nullity, separation or divorce the Court may, before or by or after the principal decree or order, make such order (whether an interim order or a permanent order) as it thinks just with respect to the custody and upbringing of any child of the marriage.

(2) In any such case the Court may make a guardianship order vesting the sole guardianship of the child in one of the parents, or make such other order with respect to the guardianship of the child as it thinks fit.

(3) An order may be made under subsection (1) or (2) and any such order may be varied or discharged, notwithstanding that the Court has refused to make a decree or to give any other relief sought.

(4) Unless the Court makes a guardianship order every person who was a guardian of the child shall continue to be a guardian of the child.

Disputes

13 Disputes between guardians

(1) When more than one person is a guardian of a child, and they are unable to agree on any matter concerning the exercise of their guardianship, any of them may apply to the Court for its direction, and the Court may make such order relating to the matter as it thinks proper.

(2) Where more than one person has custody of a child, and they are unable to agree on any matter affecting the welfare of the child, any of them may apply to the Court for its direction, and the Court may make such order relating to the matter as it thinks proper.

(3) Where under an order of the Court more than one person is a guardian or has custody of a child the Court shall have exclusive jurisdiction to settle disputes.

14 Review of guardian’s decision or refusal to give consent

A child of or over the age of 16 years who is affected by a decision or by a refusal of consent by a parent or guardian in an important matter may apply to the Court which may review the decision or refusal and make such order in respect of the matter as the Court thinks fit.

Access

15 Access rights

(1) On making any order with respect to the custody of a child the Court may make such order with respect to access to the child by a parent who does not have custody of it under the order as it thinks fit.

(2) A parent who does not have custody of his child may apply to the Court for an order granting him access to the child, and the Court may make such order as it thinks fit.

(3) In this section "parent" includes a step-parent, and "child" has a corresponding meaning.

16 Access of other relatives on death of parent

If a parent of a child has died, the Court may order that the parents of the deceased parent, or either of them, or any brother or sister of the deceased parent, or any brother or sister of the child, shall have access to the child at such times and places as the Court thinks fit.

Variation and Enforcement of Orders

17 Variation or discharge of orders

(1) The Court may vary or discharge any order with respect to the custody or upbringing of a child, or with respect to access to a child.

(2) (a) The Court may vary or discharge any order vesting the guardianship of a child in one parent or in any other person or persons.

(b) If any such guardianship order is discharged, and no other guardianship order is made, guardianship shall vest in the person (if any) who would be the guardian if the order discharged had not been made.

(3) An application to vary or discharge any order to which this section applies may be made by any person affected by the order, or by any person on behalf of the child who is the subject of the order.

(4) This section does not apply to an interim order or to an adoption order.

18 Effect of custody agreements

An agreement between the father and mother of a child with respect to the custody or upbringing of or access to the child shall be valid, whether or not either of the parties is a minor, but shall not be enforced if the Court is of opinion that it is not for the welfare of the child to give effect to it.

19 Enforcement of custody and access rights

(1) (a) Where any person is entitled to the custody of a child, whether under this Act or to the order of a court, the Court may on the application of the person so entitled to custody, issue a warrant authorising any constable or social worker or any other person named in the warrant to take possession of the child and to deliver him to the person entitled to custody.

(b) Where more than one person is entitled to the custody of a child no warrant issued under this subsection shall authorise the removal of the child from the possession of one of those persons and the delivery of him to another of them.

(2) The Court may on the application of the person entitled to access to a child under an order of the Court, issue a warrant authorising any constable or social worker or any other person named in the warrant to take possession of the child and deliver him to the person entitled to access in accordance with the order.

(3) The powers conferred on a court by subsections (1) and (2) may be exercised on the making of the order.

(4) For the purpose of executing any warrant issued under subsection (1) or (2), any constable or social worker or any other person named in the warrant, may enter and search any building, aircraft, ship, vehicle, premises, or place, with or without assistance and by force if necessary.

(5) The constable, social worker or other person executing any such warrant shall have it with him and shall produce it if required to do so.

(6) Every person who wilfully resists or obstructs any person in the execution of any such warrant, or who wilfully fails or refuses to afford to any person engaged in the execution of any such warrant immediate entrance to any premises or to any part of them, commits an offence and shall be liable on conviction to a fine not exceeding 4 penalty units.

(7) Nothing in subsections (1) to (3) shall limit or affect any other power to enforce a right of custody or access exercisable by any court at the commencement of this Act.

(8) Where the Court declines to enforce a right of custody or access it may of its own motion vary or discharge any existing order of custody or access accordingly.

(9) Subject to section 9(3)(b) in considering an application under subsection
(1) or (2) of this section, or any other application to enforce a right of custody or access, the Court shall not grant the application contrary to the wishes of the child if the child is of or over the age of 18 years.

20 Preventing removal of child from Niue

(1) A Judge or the Registrar of the Court who has reason to believe that any person is about to take a child out of Niue with intent to defeat the claim of any person who has applied for or is about to apply for custody of or access to the child, or to prevent any order of any Court as to custody of or access to the child from being complied with, may issue a warrant directing any constable or social worker to take the child (using such reasonable force as may be necessary) and place it in the care of some suitable person pending the order or further order of the court having jurisdiction in the case.

(2) Any person who without the leave of the Court takes or attempts to take any child out of Niue knowing that proceedings are pending or are about to be commenced under this Act in respect of the child or that an order of any Court conferring custody of or access to the child on any other person is in force or with intent to prevent any order of any Court as to custody of or access to the child from being complied with commits an offence and shall be liable on conviction to a fine not exceeding 5 penalty units or to imprisonment for a term not exceeding 3 months or to both.

(3) No proceedings for contempt of court shall be taken against any person in respect of any act to which this section applies.

Marriage of Child

21 Termination of guardianship

(1) Guardianship of a child shall terminate when the child attains the age of 20 years or marries under that age.

(2) Nothing in subsection (1) shall limit or affect the appointment of a guardian ad litem or the powers of the Court in respect of any such guardian.

22 Domicile of married minor

The domicile of a minor who is or has been married shall be determined as if the minor were an adult.

Miscellaneous Provisions

23 Welfare of child paramount

(1) (a) In any proceedings where any matter relating to the custody or guardianship of or access to a child, or the administration of any property belonging to or held in trust for a child, or the application of the income thereof, is in question, the Court shall regard the welfare of the child as the first and paramount consideration.

(b) The Court shall have regard to the conduct of any parent to the extent only that such conduct is relevant to the welfare of the child.

(2) In any such proceedings the Court shall ascertain the wishes of the child, if the child is able to express them, and shall, subject to section 19(9), take account of them to such extent as the Court thinks fit, having regard to the age and maturity of the child.
(3) Nothing in this section shall limit sections 64 and 64A of the Trustee Act 1956.

24 Custody of children over 16

(1) An order with respect to the custody of a child of or over the age of 16 years shall not be made unless there are special circumstances.

(2) An order in respect of a child under the age of 16 years in so far as it relates to custody shall expire when the child attains that age unless the Court in special circumstances otherwise orders at the time of making the order or subsequently.

(3) Nothing in this section shall limit or affect the power of the Court to make orders in respect of the upbringing of a child, or to appoint or remove guardians.

(4) Nothing in this section shall apply in respect of children who are under the guardianship of the Court.

25 Consents to operations

(1) Subject to subsection (6), the consent of a child of or over the age of 16 years to any donation of blood by him, or to any medical, surgical, or dental procedure (including a blood transfusion) to be carried out on him for his benefit by a person professionally qualified to carry it out, shall have the same effect as if he were of full age.

(2) The consent of or refusal to consent by a child to any donation of blood or to any medical, surgical, or dental procedure (including a blood transfusion) whether to be carried out on him or on any other person, shall if the child is or has been married have the same effect as if he were of full age.

(3) Where the consent of any other person to any medical, surgical, or dental procedure (including a blood transfusion) to be carried out on a child is necessary or sufficient, consent may be given –

(a) By a guardian of the child; or

(b) If there is no guardian in Niue or no such guardian can be found with reasonable diligence or is capable of giving consent, by a person in Niue who has been acting in the place of a parent; or

(c) If there is no person in Niue who has been so acting, or if no such person can be found with reasonable diligence or is capable of giving consent, by the Court.

(4) Where a child has been lawfully placed for the purpose of adoption in the home of any person that person shall be deemed to be a guardian of the child for the purposes of subsection (3).

(5) Nothing in this section shall limit or affect any enactment or rule of law whereby in any circumstances –

(a) No consent or no express consent is necessary; or

(b) The consent of the child in addition to that of any other person is necessary; or

(c) Subject to subsection (2), the consent of any other person instead of the consent of the child is sufficient.

26 [Repealed by 2004/270]

27 Procedure and costs

(1) All proceedings under this Act shall, unless the Court otherwise directs, be heard in private.

(2) In any proceedings under this Act the Court may make such order as to costs as it thinks fit.

28 Evidence

In all proceedings under this Act (other than criminal proceedings), and whether by way of hearing in the first instance or by way of appeal, or otherwise howsoever, the Court may receive any evidence that it thinks fit, whether it is otherwise admissible in a court of law or not.

29 [Repealed by 2004/270]

30 Solicitor or counsel may be appointed

The Court may appoint a solicitor or counsel to assist it or to represent any child who is the subject of or who is otherwise a party to proceedings under this Act, and where any solicitor or counsel is so appointed his fees and expenses shall be paid by such other party or parties to those proceedings as the Court shall order or, if the Court so decides, shall be paid out of money appropriated for the purpose by Assembly.

31 Appeals

(1) [Repealed by 2004/270]

(2) An appeal shall lie to the Court of Appeal from any order or decision of the High Court under this Act, other than an order or decision under section 13.

(3) Except on an appeal on a question of law, the Court of Appeal may rehear the whole or any part of the evidence, or may receive further evidence, if it thinks that the interests of justice so require.

(4) The decision of the Court of Appeal shall in every case be final.

32 Regulations

Cabinet may make regulations for the purposes of this Act and for providing for the enforcement in Niue of orders with respect to the custody and upbringing of and access to children made in other countries, and relating to the enforcement in other countries of orders made in Niue with respect to the custody and upbringing of and access to children.

33 Act to be code

(1) Except as otherwise expressly provided in this Act, this Act shall have effect in place of the rules of the common law and of equity relating to the guardianship and custody of children.

(2) (a) Subject to section 9, no person shall be appointed as or shall have any powers as guardian of the property of any child.

(b) Nothing in this Act shall limit or affect any power of the Court in relation to any property held on trust or to the administration thereof.

(3) In matters not provided for by this Act, the Court shall have all the powers in respect of the persons of children as does the High Court of New Zealand.

34 [Repealed by 2004/270]

35-38 [Spent]

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SCHEDULE

[Not reproduced]