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Gibbs v Gibbs [2022] NZFC 4325

Published 15 June 2023

Guardianship — day-to-day care and contact — COVID-19 — global pandemic — testing — method of testing — "treatment" — “routine” — Care of Children Act 2004, ss 15 & 16 — New Zealand Bill of Rights Act 1990, s 11 — A v Council of the Auckland District Law Society [2005] 3 NZLR 552. The applicant applied to the Court to settle a dispute between guardians. He and the respondent were the legal guardians of their three children, and they disagreed on the matter of COVID-19 testing. The respondent was initially opposed to the children being tested at all. She later agreed to allow them to be tested, but only via a saliva test rather than a Rapid Antigen Test. The issues for the Court to decide were whether the decision to test children for COVID-19, and the method of testing used, were guardianship issues. The relevant section of the Care of Children Act stated that guardianship includes determining questions about important matters affecting the child, including non-routine medical treatment. Therefore testing was only a guardianship issue if it was not "routine" medical treatment. The Court considered that in New Zealand at the time of the hearing, COVID testing did qualify as a "routine" procedure. Each of the parties was free to decide on the method and manner of COVID testing without consulting the other party. The application to settle the dispute was dismissed. Judgment Date: 18 May 2022