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.