Care of Children Act 2004

Guardianship based on parental status

17 Child’s father and mother usually joint guardians

(1)

The father and the mother of a child are guardians jointly of the child unless the child’s mother is the sole guardian of the child because of subsection (2) or subsection (3).

(2)

If a child is conceived on or after the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—

(a)

married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor

(b)

living with the father of the child as a de facto partner at any time during that period.

(3)

If a child is conceived before the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—

(a)

married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor

(b)

living with the father of the child as a de facto partner at the time the child was born.

(3A)

For the purposes of subsections (2) and (3), the mother and father of a child may be in a de facto relationship even if—

(a)

either parent is under 16; or

(b)

either parent is aged 16 or 17 and consent for the relationship (as referred to in section 14(2) of the Legislation Act 2019) has not been given.

(4)

On the death of the father or the mother, the surviving parent, if he or she was then a guardian of the child, is the sole guardian of the child.

(5)

This section is subject to sections 18 to 34, and therefore does not limit or affect the appointment of 1 or more additional guardians (for example, an additional testamentary guardian of the child appointed by the deceased parent under section 26(2)) or an order (relating to guardianship of the court) under section 33(1).

Compare: 1968 No 63 s 6(1), (2), (4)

Section 17(2)(a): amended, on 1 July 2005, by section 3 of the Care of Children Amendment Act 2005 (2005 No 5).

Section 17(3)(a): amended, on 1 July 2005, by section 3 of the Care of Children Amendment Act 2005 (2005 No 5).

Section 17(3A): inserted, on 1 July 2005, by section 3 of the Care of Children Amendment Act 2005 (2005 No 5).

Section 17(3A)(b): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).