1. INTRODUCTION

In his seminal work on Family Law and Personal Life, Eekelaar describes rights ‘as being a complex amalgam comprising a claim of entitlement to an end-state necessary to protect an interest and an implication that the interest possesses sufficient weight to impose a duty to activate the means contemplated to achieve the necessary protection’. This theoretical framework of rights will be used to analyse when a grandparent can make a rights claim in relation to their grandchildren. The interest is the best interests and well-being of their grandchildren, and the sufficient weight will be the degree to which the current law in Aotearoa New Zealand recognises when there is a duty to activate the rights of grandparents to protect the well-being of their grandchildren.

The focus of this chapter is whether or not grandparents in Aotearoa New Zealand have any rights in relation to their grandchildren because of their status as grandparents. Aotearoa is the name Māori, the indigenous people, use for New Zealand. In 1840, the European settlers who came to Aotearoa New Zealand signed a treaty called Te Tiriti o Waitangi/the Treaty of Waitangi with a number of Māori iwi (tribes). There has been much written and debated about what the Treaty means. The New Zealand Court of Appeal in the Māori Lands case was asked to define what the ‘principles of the Treaty’ mean, as the phrase had been placed in statute. The Court held that the Treaty was the entry into a partnership between the Māori people and the British Crown. What that partnership means is still being worked out. In the High Court decision of Barton-Prescott v. Director-General of Social Welfare, which involved a dispute between a Māori mother who wanted to have her child adopted, and the Māori grandmother of the child, who wanted the child to be placed with her, the High Court said: