Baby W & New Zealand guardianship orders

The New Zealand Care of Children Act 2004 provides for the promotion of the welfare and best interests of children by regulating the duties and responsibilities of parents and the court’s power concerning the care of children.

The Act encourages agreement on care arrangements and the resolution of disputes. Additionally, it allows for the enforcement of international orders by implementing the Hague Convention on the Civil Aspects of International Child Abduction into New Zealand law.

Section 31 of the Care of Children Act 2004, provides that in the welfare and best interests of a child an eligible person can apply for an order placing a child under the guardianship of the Court, or appointing a person as the agent of the Court. A child’s guardian can consent to any medical, surgical or dental treatment or procedure (including a blood transfusion).


Baby W was born with a congenital heart defect that had become more severe and urgently required surgery. Each day the operation was delayed increased the risk of postoperative complications. Dr Kirsten Finucane, the pediatric cardiac surgeon in chief at Auckland’s Starship Children’s Hospital where Baby W was being treated had considered and excluded the possibility of performing the surgery without blood or blood products. Dr Finucane and those other experts consulted, considered that Baby W would need various blood products throughout surgery and recovery.

Baby W’s parents (the respondents) consented to the surgery but not to a blood transfusion resulting in him receiving blood that might contain the COVID-19 mRNA vaccine with spike proteins that are not considered safe for Baby W.

The matter

In Te Whatu Ora, Health New Zealand, Te Toka Tumai v C and S [2022] NZHC 3283 an urgent application was sought under s 31(2)(g) of the Act to have Dr Kirsten Finucane and Dr Alan Magee appointed agents of the Court to consent to surgery and related medical issues including the administration of blood and blood products and the parents appointed as general agents of the Court.

The facts underpinning whether the proposed treatment is in Baby W’s best interests are:

  • (a) whether the clinicians’ proposed use of New Zealand Blood Services blood products is safe; and
  • (b) whether the parents’ proposed use of directed blood is a safe and viable alternative.

However, the Court stressed the necessity of addressing these issues within the constraints of this urgent proceeding at [23]

The respondents applied to join the New Zealand Blood Service as a third party so that the New Zealand Blood Service arrange a direct donation – usually provided where there is a clear medical need, such as for patients with rare blood types where there are no compatible anonymous donors.

The decision

The Court held that an order enabling the surgery was in Baby W’s best interest and placed the baby under the guardianship of the Court from the date of his surgery until the completion of his post-operative recovery.

Drs Finucane and Magee were appointed as agents of the Court to consent to the surgery and all medical issues related to the surgery and his parents were guardians for all other purposes.

Based on the evidence submitted the Court accepted that there were no known harmful vaccine-related effects of blood from a vaccinated individual to a recipient of any age.

Similarly owing to the lack of scientific evidence that it poses any risk the New Zealand Blood Service’s decision not to agree to provide directed donor blood was a clinical decision made in good faith, and following good medical practice, the Court rejected that the use of blood from donors not vaccinated with mRNA vaccine was a safe and viable alternative.


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