The Tongan Supreme Court has turned down an application for legal guardianship of a child by a Tongan family living in New Zealand.
In his ruling Lord Chief Justice Paulsen said that his overriding concern when considering the application was whether transferring guardianship was in the child’s best interests.
However, he said he had to consider whether or not the child would be better off if she was taken from Tonga to New Zealand, as the prospective guardians believed.
The applicants were relatives of the child’s natural parents and the Lord Chief Justice said he recognised that they genuinely loved the child.
The couple making the application did not have children of their own.
There was no evidence that the child would be allowed by New Zealand Immigration to travel and live in New Zealand on the strength of a Legal Guardianship Order.
The couple who applied for guardianship said they would apply to formally adopt the child under New Zealand law if granted guardianship.
“The applicants make this application for a Legal Guardianship Order as they have been unable to have a child of their own and wish to raise the child in New Zealand where they believe she will have greater educational opportunities and ultimately a better life,” Lord Chief Justice Paulsen said.
“They say in addition that if she grows up in New Zealand she will in time be able to provide financially for her family here in Tonga.”
In his ruling the Judge said the Court of Appeal had stated plainly that where the granting of Letters of Adoption would remove a child from Tonga, such an order should only be issued where all other means of caring for a child in Tonga have been exhausted.
The Supreme Court had applied the same principle to applications for the grant of Legal Guardianship Orders.
“On the evidence presented to me, there are perfectly suitable means to care for the child here in Tonga with her own family and I am of the clear view that that it would not be in the child’s best interests to make the Legal Guardianship Order,” Lord Chief Justice Paulsen said.
“The child has lived with her natural parents and four older siblings for the entirety of her life and shares a close relationships with all her brothers and sisters.”
He said he believed the child would experience significant dislocation if she were to move to New Zealand with the applicants, particularly in terms of language and schooling, and without the strong familial connections that she has with her parents and siblings to support her.
The Judge said he said he was not satisfied the child would do better being raised by the applicants than with her family here in Tonga. The child had lived with her natural parents and four siblings for the entirety of her life and had clearly been suitably cared for.
“It appears to me that her family circumstances are better than are enjoyed by many in Tonga,” the judge said.
“It is clear in my view that the child’s best interests are served by remaining in Tonga with her family.”
The main points
- The Tongan Supreme Court has turned down an application for legal guardianship of a child by a Tongan family living in New Zealand.
- In his ruling, Lord Chief Justice Paulsen said that his overriding concern when considering the application was whether transferring guardianship was in the child’s best interests.
- However, he said he had to consider whether or not the child would be better off if she was taken from Tonga to New Zealand.
- He said the applicants loved the child, but it would be in her best interests if she stayed in Tonga.
