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Communtity Law Manual | Oranga Tamariki / Ministry for Children | When your child can be taken from you immediately

If Oranga Tamariki takes urgent action

When your child can be taken from you immediately

When will the courts give permission for my child to be removed from me?

Oranga Tamariki Act 1989, s 39

A judge from the District Court or Family Court can issue what’s called a “place of safety” warrant to an Oranga Tamariki social worker or the police, allowing them to come into your home (and your car if necessary) to search for your child and check up on them.

To get one of these warrants from a judge, Oranga Tamariki or the police have to satisfy the judge that there’s good reason to suspect the child is being ill-treated, neglected, abused or harmed, or to suspect that this is likely to happen. They also have to convince the judge there’s no other way of protecting the child.

Case: [1991] NZFLR 128

When Oranga Tamariki or the police apply for the warrant, the parents or caregivers usually won’t be told they’ve applied, and the judge will make a decision based on what the social worker or the police officer tells them. But the social worker or officer must provide the judge with proper and adequate information to justify getting the warrant. They have to give full details and set out the specific grounds for the warrant – for example, if it’s abuse, or neglect, or some other specific ground.

Case: (1991) 8 FRNZ 376

If someone has made a particularly bizarre or extreme allegation to Oranga Tamariki about a child, the social worker has to check out this claim before they apply to a judge for a warrant – Oranga Tamariki can’t just assume this is true.

What social workers and police can do if they have a warrant to uplift your child

Case: [1995] 2 NZLR 3

Once the social worker or police officer is inside your home, they have the right to do certain things to find out if your child’s OK. This includes checking their physical condition, and checking their living conditions, such as whether there’s enough food and other necessities like warm clothes if it’s cold. This means they’d be allowed to do things like opening your cupboards to see if there’s enough food.

Oranga Tamariki Act 1989, s 39(3)

They can then take your child away from you only in serious cases and when they’re very sure about it. To take your child away, they must have a reasonable belief – not just a reasonable suspicion – that removing your child is necessary. Also, if the risk they’re concerned about is “neglect, deprivation or harm”, rather than abuse or ill-treatment, it has to be serious neglect, deprivation or harm.

When your child can be taken from you without a court warrant

Oranga Tamariki Act 1989, s 39; Case: [1991] NZFLR 288

In some situations the police – but not Oranga Tamariki social workers – may be able to enter your home and take your child away from you without first getting permission from a judge through a warrant – but this is a drastic step that’s allowed in only the most urgent and exceptional cases. For example, the police won’t be able to do it just because you’ve made a wild statement or threat under stress and in the heat of the moment.

When the police use this emergency power, they have to show you their police ID and tell you that they’re using this specific power under section 39 of the Oranga Tamariki Act.

Other removal warrants

Oranga Tamariki Act 1989, s 40

There’s a separate power for the District Court or Family Court to issue a warrant to remove a child from their carers once Oranga Tamariki has applied for care or Protection Orders. But the judge has to first be satisfied that there are reasonable grounds to believe:

  • that the child is suffering (or is likely to suffer) ill-treatment or abuse, or serious neglect, deprivation or harm, or
  • that the child is so seriously disturbed that they’re likely to act in a way that’s harmful to themselves or someone else, or likely to cause serious damage to property.
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