In New Zealand, the concept of guardianship is governed primarily by the Care of Children Act 2004. Guardians hold the authority and legal responsibility for making important decisions about a child's life. Parents are ordinarily the guardians of their child.
Guardians are expected to act in the child's best interest at all times and must consult with each other and agree on important decisions (such as care, place of residence, religion, education/schooling and medical treatment).
However, what happens if a guardian's decision is not in the child's best interests?
Background
The recent High Court Decision of Health New Zealand | Te Whatu Ora, Te Toka Tumai Auckland v Hill [2025] NZHC 427 (Gault J) illustrates the courts' ability to step in and grant guardianship orders to government agencies and other persons to ensure that decisions are being made in a child's best interests (when the current guardians are failing to do so).
In the High Court decision released earlier this month, the parents of an eight year old girl who was diagnosed with B-cell acute lymphoblastic leukemia withdrew their consent to their daughter receiving chemotherapy.
The girl had completed induction chemotherapy treatment in January 2025, but by late February, the parents withdrew their consent and their daughter missed 28 days of oral chemotherapy and three subcutaneous injections administered by community nurses. This prompted the hospital to make a report of concern to Oranga Tamariki.
When attending a meeting at the hospital in late February, the girl's mother explained "she did not accept chemotherapy was required and it was her intention to treat [her daughter] by natural and spiritual means". The father's view was that "the motivation for using chemotherapy was driven by "Big Pharma"".
After the meeting, Te Whatu Ora commenced proceedings in the High Court seeking various orders regarding the girl's guardianship. However, an urgent oral without notice application seeking an interim guardianship order was made on the evening of 5 March, the night before a scheduled High Court hearing, because Te Whatu Ora became aware that the parents and their daughter were booked on an international flight, set to depart that evening.
High Court decision
The High Court granted an interim order without notice to prevent the parents and their daughter from leaving New Zealand. Given the attempt to leave, Te Whatu Ora and the Chief Executive of Oranga Tamariki sought an amended order at the substantive hearing, seeking to extend the scope of Oranga Tamariki's agency role to have the power to take the girl away from her family and place her at a location approved by the Chief Executive of Oranga Tamariki.
The High Court declined to make these "invasive" orders, particularly as the mother had since committed to comply with the daughter's treatment, if it was the only option. However, the High Court placed the girl under the guardianship of the Court until the earliest of either completion of her medical treatment or three years.
Hospital clincians were also appointed as agents for the purpose of consenting to the girl's medical treatment. Oranga Tamariki was appointed to ensure that the treatment was administered and, if the parents did not facilitate the treatment, to uplift the daughter to another location for treatment to be administered. The parents were to remain as agents in all other respects.
The High Court accepted that the girl's prognosis was "very good" if the treatment was followed and that such treatment was in the girl's best interests.
Supreme Court decision
Following the High Court's decision, the girl's father sought leave to appeal directly to the Supreme Court (New Zealand's highest Court), bypassing the Court of Appeal. The girl's father expressed concerns that "the proceedings were rushed and cross-examination curtailed". The Supreme Court commented that it must be "satisfied that it is in the interests of justice for the Court to hear and determine the appeal and that there are exceptional circumstances justifying a direct appeal to this Court".
The Supreme Court held that the test was not met as the father had not shown why it was necessary in the interests of justice for the Supreme Court to address the matter and thereby bypass an appeal to the Court of Appeal. In dismissing the appeal, the Supreme Court acknowledged the importance of the issues for the girl's family, but expressed there was no good reason why the Court of Appeal could not deal with the guardianship issue.
Commentary
The High Court decision is an important reminder that in some cases it may be appropriate for another eligible person, such as a grandparent of the child, or a government agency like Oranga Tamariki, to apply to the Court for guardianship orders where decisions are being made by guardians which are not in the best interests of a child.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
