Special guardianship is an order that combines custody, guardianship, and access in one order. Special guardianship gives the permanent caregiver the right to possession of tamariki, exclusive decisions making rights and the right to control access. For guardianship, the exclusive rights of the permanent caregivers and the shared rights (with the parents) must be recorded in the order.
Custody is the right to possession of tamariki. The child generally lives with the person who has custody. If Oranga Tamariki has custody, they have the right to possession, and they place tamariki with caregivers.
Guardianship is the right to make the important decisions about a child’s life including: what school the child should attend? what kind of school should the child attend – kura kaupapa, boarding, mainstream, religious? what health care should the child have? the right to consent to or refuse medical treatment, what child’s name should be?
Mum and Dad are usually guardians. Mum is a guardian because she gave birth to the child. Dad may or may not be a guardian depending on his relationship with Mum around the time the child was born or if he is registered on the child’s birth certificate.
Even if Oranga Tamariki are granted custody of a child, the parents are still guardians unless the Family Court makes an order saying they are not. Until the Family Court does that, Oranga Tamariki are required to consult with the parents about the important decisions except where the child is placed.
Access is about having visits or contact with a child, whether that is directly (in person) or indirectly (telephone, skype, email/letters). Where a child is in the custody of other whanau or a caregiver, a person having rights of access get to visit or have contact with the child in some way. Depending on the circumstances, access may be supervised.
The effect of a special guardianship order is similar to an adoption order. That is:
When the Family Court give permanent caregivers exclusive decision making rights, the same rights of the existing guardians are suspended. For example, if the permanent caregivers are given the exclusive right to decide where the child lives or what the child’s name is to be, then the existing guardians’ rights to have input into where their child lives or what their name should be are suspended. The existing guardians do not have a right to challenge those decisions
The only obligation on the permanent caregiver is to advise the existing guardians that a decision has been made. That may be difficult if the existing guardians move, and the permanent caregivers do not have a forwarding address.
The access arrangements are decided by the Family Court when a special guardianship order is made. For example, the Family Court may say that access between the parents and the child is to happen 4 times a year for an hour. If that is the access order then that is what the arrangements will be until that child is 18. There is limited ability for existing guardians or whānau to change access.
Special guardianship is largely about possession of the child and suspension of parents and whānau rights. Whānau need to be aware that special guardianship may cause disconnection for tamariki with whānau.