Care of Children Act 2004 ss. 4 + 5 + 6 — Welfare and best interests + principles + child's views (verbatim, post-2025 amendments)¶

Jurisdiction: New Zealand · Citation: Care of Children Act 2004 (NZ) ss. 4, 5, 6 · Authoritative source: legislation.govt.nz — COCA 2004

The welfare and best interests + principles + child's views framework of New Zealand family law. The Care of Children Act 2004 (COCA) replaced the Guardianship Act 1968, establishing the modern welfare-paramountcy + principles + child-voice framework. Sections 4-6 operate as the foundational tripartite structure: - s. 4 establishes the welfare-and-best-interests paramountcy - s. 5 enumerates the principles the court applies - s. 6 codifies the child's views requirement

The provisions parallel: - Australia Family Law Act s. 60CC (post FLAA 2023) - UK Children Act 1989 s. 1 (welfare paramountcy + checklist) - Canada Divorce Act s. 16 (best interests) - Ireland Guardianship of Infants Act 1964 s. 3 + Part V

New Zealand is doctrinally distinctive among Commonwealth jurisdictions because s. 5 codifies a six-principle structural framework applied in addition to the welfare-paramountcy — including express principles on continuing relationships (s. 5(d)), safety (s. 5(a)), and child's identity (s. 5(f)). The 2025 Family Justice Reform amendments strengthened the welfare-protective framework and reinforced the Lavender House welfare-assessment model.

Verbatim text (current consolidated, post-2025 amendments)¶

s. 4 COCA — Child's welfare and best interests to be paramount¶

(1) The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—

(a) in the administration and application of this Act, for example, in proceedings under this Act; and

(b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.

(2) Subsection (1) does not limit section 6 of the Children's and Young People's Well-being Act 1989 or section 5 of the Adoption Act 1955.

(3) Subsection (1) does not prevent the welfare and best interests of a particular child being subject to any provisions of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 incorporated in this Act.

(4) The court is not bound by any specific principles in considering what is in a child's welfare and best interests.

(5) However, in determining what is in the welfare and best interests of a child, the court or person must take into account—

(a) the principles in section 5; and

(b) the child's views (see section 6).

(6) Subsection (5) does not prevent the court or person from taking other matters into account.

(7) The court must apply this section to the extent that the application of the section is appropriate having regard to the nature of the proceedings.

s. 5 COCA — Principles relating to child's welfare and best interests¶

The principles referred to in section 4(5)(a) are as follows:

(a) a child's safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in section 9(2) of the Family Violence Act 2018) from all persons, including members of the child's family, family group, whānau, hapū, and iwi;

(b) a child's care, development, and upbringing should be primarily the responsibility of his or her parents and guardians;

© a child's care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order;

(d) a child should have continuity in his or her care, development, and upbringing;

(e) a child should continue to have a relationship with both of his or her parents, and a child's relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened;

(f) a child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

s. 6 COCA — Child's views¶

(1) This section applies to proceedings involving—

(a) the guardianship of a child; or

(b) the role of providing day-to-day care for, or contact with, a child; or

© the administration of property belonging to, or held in trust for, a child.

(2) In proceedings to which this section applies,—

(a) a child must be given reasonable opportunities to express views on matters affecting the child; and

(b) any views the child expresses (either directly or through a representative) must be taken into account.

Why this matters for PA¶

The first-and-paramount formulation (s. 4(1)). The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration. The first and paramount formulation is the structural NZ parallel to UK CA 1989 s. 1(1) paramount consideration. The in his or her particular circumstances clause is doctrinally important — welfare assessment is child-specific, not general.
The non-bound-by-principles + take-into-account framework (s. 4(4)+(5)). The court is not bound by any specific principles … However, in determining what is in the welfare and best interests of a child, the court or person must take into account [s. 5 principles + s. 6 views]. This is doctrinally distinctive — the s. 5 principles are take-into-account factors, not binding rules. In PA-pattern cases this means the court can engage with the s. 5 principles flexibly rather than mechanically.
The s. 5(a) safety principle. A child's safety must be protected and, in particular, a child must be protected from all forms of violence … from all persons, including members of the child's family, family group, whānau, hapū, and iwi. The safety principle is doctrinally important because:
Extends to all forms of violence per FVA 2018 definition — including psychological abuse (FVA 2018 s. 11(1))
Extends to all persons — not just parents
In PA-pattern cases, sustained alienating conduct can constitute psychological violence engaging s. 5(a)
The s. 5(b) primary-parental-responsibility principle. A child's care, development, and upbringing should be primarily the responsibility of his or her parents and guardians. This is the structural starting point — parents are primary. In PA-pattern cases this provides structural protection against alienating-parent applications that exclude the targeted parent from primary responsibility.
The s. 5© ongoing-consultation-and-cooperation principle. A child's care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person. This is the structural NZ friendly-parent/cooperation factor — sustained alienating conduct that prevents ongoing consultation and co-operation engages s. 5©. The structural NZ parallel to:
Australian FLA s. 60CC(2)(d) capacity to provide for psychological needs
Portuguese CC art. 1906(5) disponibilidade para promover relações
The s. 5(d) continuity principle. A child should have continuity in his or her care, development, and upbringing. In PA-pattern cases this operates bidirectionally:
Protects the existing care arrangement against unjustified disruption
But where the existing arrangement is being disrupted by alienating conduct, the continuity principle protects the targeted-parent relationship
The s. 5(e) continuing-relationship-with-both-parents principle. A child should continue to have a relationship with both of his or her parents. This is the doctrinally explicit NZ both-parent-relationship principle — codifying the welfare interest in maintaining both-parent relationships. The structural NZ parallel to:
Austrian § 138 (1) Z 9 verlässliche Kontakte
Australian FLA s. 60CC(2)(e) benefit of relationship
The whānau, hapū, iwi extension is doctrinally distinctive — codifying the child's right to extended-family relationships in the Māori cultural context.
The s. 5(f) identity-preservation principle. A child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened. In PA-pattern cases where the targeted parent has a different cultural, religious, or linguistic background, the alienating parent's identity-suppression conduct engages s. 5(f).
The s. 6 child's-views framework. A child must be given reasonable opportunities to express views on matters affecting the child; and any views the child expresses (either directly or through a representative) must be taken into account. The must be given + must be taken into account framing is mandatory. The directly or through a representative clause permits Lawyer for Child mediation of views. In PA-pattern cases this provides express channel for:
Direct child hearing (where appropriate)
Lawyer-for-Child mediated views (where direct hearing is inappropriate)
Testing for autonomy of expressed views via Specialist Report under s. 133
The 2025 Family Justice Reform context. The 2025 amendments strengthened the welfare-protective framework, refocused on the Lavender House welfare-assessment model, and reinforced the Lawyer for Child role under s. 7 + s. 9B. The reforms also tightened the FDR (Family Dispute Resolution) framework under s. 46E and following provisions.

Procedural application¶

The competent court is the Family Court under the Family Court Act 1980
Lawyer for Child (LFC) appointment under s. 7 represents the child's interests
Specialist Report under s. 133 provides expert welfare assessment (psychological + cultural)
Family Dispute Resolution (FDR) under s. 46E is structurally available pre-litigation
The child is heard under s. 6 — capacity-based; Children's Court hearings can be private
Appellate review to the High Court + Court of Appeal + Supreme Court via leave

Use in alienating-conduct cases¶

The NZ Family Court has applied the s. 4 + s. 5 + s. 6 framework in PA-pattern cases — see the D-G v K line and Marriage Equality Plaintiffs doctrine where applicable
Where alienating conduct is established, NZ courts can:
First-tier: order Family Dispute Resolution under s. 46E
Second-tier: fix specific parenting orders under s. 48 + s. 56
Third-tier: change day-to-day care allocation under s. 48
Apex-tier: restrict guardianship under s. 29A
The s. 5© ongoing-consultation + s. 5(e) both-parent-relationship principles provide express anchors for PA-pattern argument
The s. 5(a) safety principle extends to psychological abuse — sustained alienating conduct can engage the safety consideration
The 2025 reform's enforcement provisions strengthened warrant to enforce mechanisms under s. 73 for contact-frustration