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Communtity Law Manual | Oranga Tamariki / Ministry for Children | Care or protection orders and plans

If Oranga Tamariki takes you to court

Care or protection orders and plans

Overview

Oranga Tamariki Act 1989, ss 14, 83

If the Family Court judge decides the child meets the legal definition of needing care and/or protection, the judge can make various specific orders, dealing with issues like who has care of the child and what kinds of support the child and caregivers will get.

When deciding what orders to make, the judge has to choose the approach that interferes the least with the current family/whānau arrangements. There’s a range of types of orders – some are more serious and interfere with the life of your child and your family/whānau more than others.

At the most serious end of the range of orders are custody orders, which deal with who has the care of the child, and guardianship orders, which deal with who has the role of making key decisions about the child’s life. In the middle of the range there are orders like services orders and support orders. At the least serious and least interfering end, the judge can decide that the particular case doesn’t need any orders to be made.

Oranga Tamariki Act 1989, s 128; Case: [2010] NZFLR 569

Most of the orders the judge can make require Oranga Tamariki to prepare a report and a plan first. This is so that the steps that will be taken to deal with the case are set down in writing and have a clear purpose for everyone involved.

Note: The law was changed in April 2017 so that 17 year olds now come under the care and protection laws dealt with by Oranga Tamariki. Before, those laws only went up to age 16. From 1 July 2019, the youth justice laws also include 17 year olds, so that if they’re accused of committing a crime they’ll be dealt with by the Youth Court and the youth justice system. Before that July 2019 change, 17 year olds were treated as adults if they were accused of a crime. For information about the youth justice system, go to www.youthlaw.org.nz

Care and protection plans

The importance of the plan

Before a Family Court judge makes a care or protection order like a custody order, Oranga Tamariki will need to have come up with a clear plan for what is it to happen.

The plan must include a key goal – for example, if Oranga Tamariki have been given custody of the child, the goal might be for the child to be returned to the parent after six months.

The plan will be important in setting out clear tasks or steps for the parent to complete. For example, a plan might include several things the parent has to do, like doing a parenting programme and passing a drug test.

The plan will also state what Oranga Tamariki is expected to do, like providing certain kinds of support.

By specifying those steps and obligations, the plan provides a clear measuring stick for whether progress has been made towards the key goal of the plan.

When is a new plan needed?

Oranga Tamariki Act 1989, s 128(3)

If a care or protection order is approaching its end date (for example, if a child has been placed in Oranga Tamariki care for six months) and Oranga Tamariki want the order to be renewed for another six months, they have to prepare a new report and plan for the Family Court.

Services orders and support orders:
Monitoring and support from Oranga Tamariki

Overview of services and support orders

Oranga Tamariki Act 1989, ss 86, 91

The judge can make a “services order” telling Oranga Tamariki or some other organisation (such as an iwi social service or Barnardos) to provide certain services for the child and the family/whānau.

A “support order” is similar, but there’s usually more involvement from Oranga Tamariki, including supervision, if they’re the ones ordered to provide the support. A support order can give Oranga Tamariki some limited powers, like deciding where the child can live. In practice, Family Court judges often make services orders and support orders together.

In the range of things the judge can order, services and support orders are a kind of middle ground, where the child stays with the family or whānau rather than being placed with Oranga Tamariki under custody and guardianship orders. The parents continue as the child’s caregivers and guardians, but Oranga Tamariki monitors and supports them.

Services and support orders might also be used if a child was placed with Oranga Tamariki for a time but is now back with the family or whānau – the judge might decide to use services and support orders to provide some help and supervision for a while.

Other organisations that might be ordered to provide support include, for example, an iwi social service (like Ngāpuhi Iwi Social Services based in Kaikohe, or Whakatōhea Iwi Social & Health Services based in Ōpōtiki), or Barnardos.

UN Convention on the Rights of the Child, articles 18, 20; Case: [2012] NZFLR 837

Once Oranga Tamariki has been ordered to give various kinds of services or support to the child and family or whānau, they have a duty to provide the support at an appropriate level. This is not just because of the court order, but also because children have rights under the UN Convention on the Rights of the Child.

Oranga Tamariki Act 1989, s 128; Case: [2010] NZFLR 569

Oranga Tamariki must have first prepared a report and a plan before the judge can make a services order or support order. This is so that the steps that will be taken to deal with the case are put down in writing and have a clear purpose.

Relevance of rights of indigenous peoples

UN Declaration on the Rights of Indigenous Peoples, articles 7, 22

If you’re challenging Oranga Tamariki in the Family Court, it may also be useful to refer to rights under the UN Declaration on the Rights of Indigenous Peoples. The introduction to the Declaration recognises “the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and wellbeing of their children, consistent with the rights of the child”.

The Declaration also refers to the right of indigenous peoples not to have their children forcibly removed to some other group.

Services orders: Money and other help from Oranga Tamariki

Oranga Tamariki Act 1989, s 86

If the judge decides a child needs care or protection, they can order Oranga Tamariki or any other person or organisation to provide specific services or help for the child or for their parents or guardians.

This can include, for example, help in the home, education courses for the family or whānau in parenting skills, or after-school activities for the child.

A services order can also cover financial costs – for example:

  • travel and accommodation costs for family and whānau when they’re travelling for visits with the child
  • the child’s medical costs
  • school fees and the costs of after-school care
  • the fees of counsellors, psychiatrists or psychologists for the child
  • various miscellaneous costs – in one case for example the services order covered the costs for the year of the child showing their dog in competitions.

Support orders: Monitoring and support from Oranga Tamariki

Oranga Tamariki Act 1989, s 91

Compared with services orders, support orders are used to provide more intensive support for the family or whānau, and they give Oranga Tamariki more powers and place more conditions on the parents and caregivers. A support order can last for up to a year.

If the judge imposes a support order on Oranga Tamariki, they have to monitor the level of care, protection and control the parents are providing. “Control” might involve, for example, things like bedtimes and homework.

Oranga Tamariki will also have to provide services and money or other help to make sure the child is being properly cared for. Or they can coordinate other people to provide this help.

If a judge has made a support order, social workers from Oranga Tamariki can visit the family/whānau home at any “reasonable time”. The social worker can also tell the parents that the child isn’t allowed to live at certain places, or that the child isn’t allowed contact with certain people. The caregivers also have to tell Oranga Tamariki if they change addresses.

Support orders have been used to provide educational support for the child – for example, a remedial reading course, or regular home visits and supervision from a teacher. They might also be used to pay for counselling for the child. (The judge also has the power to make a formal “counselling order”, where the child or a parent is ordered to go to counselling, but this doesn’t happen often.)

If the parents or caregivers don’t follow the conditions of the support order – for example, if they move without telling the social worker – then Oranga Tamariki can go back to the Family Court and ask the judge to change the support order.

Custody orders and guardianship orders: When your child gets placed with Oranga Tamariki or others

Overview of custody orders and guardianship orders

Oranga Tamariki Act 1989, s 101

The judge can make a custody order placing the child with Oranga Tamariki.

As the name of the order says, this gives Oranga Tamariki “custody” of the child – this means the everyday things that parents do, including making sure the child is properly fed and clothed, that they get to and from school OK, and that they’re generally safe at any given time. Custody means the same thing as “day-to-day care” when the Family Court is deciding under the Care of Children Act 2004 what the care arrangements for a child should be, which is usually when the parents have split up.

The judge can impose particular conditions as part of the custody order.

However, the child can instead be placed in the custody of one of the following services or organisations, if the particular service or organisation agrees:

  • an iwi social service – like Ngāpuhi Iwi Social Services from Kaikohe, or Ngāruahine Iwi Health and Social Services in Taranaki
  • a cultural social service
  • a child and family support service – for example, Barnardos, Open Home or Key Assets.

When the child is placed in Oranga Tamariki custody, Oranga Tamariki is responsible for providing for the child’s needs, including financial support. So it’s not necessary for the judge to also make a services order or support order.

Case: [2011] NZFLR 990

But just because the judge has placed the child under Oranga Tamariki custody through a custody order, that doesn’t necessarily mean the child will be uplifted from their parents or other current caregivers and placed with Oranga Tamariki. It may be that instead Oranga Tamariki will decide to leave the child with the parents or caregivers but retain the power under the custody to uplift the child and place them elsewhere without having to go back to the judge for a new order.

Oranga Tamariki Act 1989, s 121

When the judge makes a custody or guardianship order, they can also make an “access order” to decide what rights the parents or current caregivers will have to see the child while the child is placed with different caregivers.

Case: [2017] NZCA 617

If a child is in Oranga Tamariki custody, Oranga Tamariki can’t put them in a Youth Justice residence.

Example: Child stays with parent under a package
of court orders

Case: Family Court, FAM-2005-000432, 30 Mar 2007

The judge made a custody order in favour of the child’s mother, rather than giving custody to CYFS (the old Oranga Tamariki). This was because the judge was worried that giving custody to CYFS would harm the child’s relationship with the mother. But the judge put conditions on the custody order designed to protect the child and give CYFS the power to monitor the child’s welfare.

The judge also made CYFS an additional guardian by making a guardianship order, so that CYFS would have the power to get information and support from other government agencies. The judge also ordered CYFS to provide support under a support order.

Am I still a guardian of my child even if the judge gives custody to someone else?

Oranga Tamariki Act 1989, s 105; Case: [2016] NZHC 24, [2016] NZFLR 723

Usually yes – you’re still a legal guardian of your child even if Oranga Tamariki or some other organisation or person is given custody (day-to-day care) of your child.

However, even though you’re still a guardian, Oranga Tamariki (or whoever else is given custody) will have the power to decide where your child lives and with whom, and this could be in a different town or region from you. But when the judge makes the custody order, they can also say in the order which town or region the child can live in – and in that case, Oranga Tamariki will have to follow the judge’s order.

As a guardian you’d normally get to decide, or be part of deciding, where your children live – along with other big issues like what school they go to, or whether they should have major medical treatment. But that right gets suspended when a judge makes a custody order under the Oranga Tamariki Act, and it stays suspended for as long as the custody order is legally in force.

Example: Oranga Tamariki sends child to
a different city without the parents’ agreement

Case: [2016] NZHC 24, [2016] NZFLR 723

The Rotorua Family Court placed two children in the custody of Oranga Tamariki, which then sent the children to live with their father’s grandmother in Auckland.

The children’s mother hadn’t agreed to the children leaving Rotorua. She went to court to get a judge to tell Oranga Tamariki they couldn’t do this without her permission. She based her argument on the fact that Oranga Tamariki had only been given “custody” of the children (the same as “day-to-day care”), not guardianship, which meant that the parents continued to be the only legal guardians of the children.

The courts said she was wrong, that Oranga Tamariki did have the legal power to send the children away from Rotorua. The mother’s general legal powers as a guardian were overridden by the specific laws in the Oranga Tamariki Act. That Act gives a broad power to Oranga Tamariki to decide who to place the children with if it has been given custody by the Family Court under the Act.

“Special guardianship”: When the child is placed permanently with someone else

Oranga Tamariki Act 1989, ss 113A, 125

If Oranga Tamariki want someone else to become a permanent caregiver for your child, Oranga Tamariki can apply to the Family Court to have the person made a “special guardian” under the Oranga Tamariki Act. The caregivers themselves can also apply for this instead of Oranga Tamariki.

Once a new caregiver becomes a special guardian, the parents usually can’t go back to the courts later to get them to change the order. They have to get special permission from the Family Court to let them even apply, and they’ll only get that permission if there’s been some significant change.

If Oranga Tamariki or a new caregiver has applied for a special guardianship order, you will have the chance to go to court to argue against the order being made. Once the order has been made you may not get a chance to challenge it again.

Note: Special guardianship was a new type of guardianship introduced in 2016. Before then, the usual arrangement with new permanent caregivers was that Oranga Tamariki would pay for the caregiver to apply for a ‘parenting order’ under the Care of Children Act, to give the caregiver day-to-day care of the child. Once the parenting order was made, the parents would be able to challenge it every two years and argue to the Family Court that the child should return to their care. But now, if a permanent caregiver has the new special guardianship status, it is much more difficult for the parents to get their case back in front of a judge.

Getting to see your child if they’re placed with someone else (“access”)

Will I be able to see my child if they’re placed with other caregivers?

Oranga Tamariki Act 1989, s 121

This will depend on what the judge decides about this issue when they make the custody or guardianship order. If the judge doesn’t make any orders about contact (“access”), it will be up to the person who’s been given the care of the child.

How the judge decides about contact

Oranga Tamariki Act 1989, ss 4A, 5

When the judge is deciding this issue, the question will always be “what is best for the child?”, not “what are the parents’ rights?” Although the care and protection laws state that the child’s relationship with their parents and other family or whānau should be maintained and strengthened, this principle is overridden if necessary by the more general and most important factor of what’s best for the child. What’s best for the child will always depend on the particular case and what Oranga Tamariki thinks is best may not be what you, the parent, think is best.

Working out what’s best for the child may involve some balancing of their short-term and long-term interests. Sometimes, for example, even though it’s in the child’s long-term interests to keep a relationship with you, the judge might decide that it’s best that you don’t have any contact with the child in the short term, so they can settle in with their new caregivers, until the judge reviews this and makes a different order.

The Family Court takes into account a number of factors when making decisions about access and visits, including things like your attitude and behaviour. It’s important to understand how you can influence this process in both positive and negative ways. For example, making negative comments about your child’s new caregivers may mean that Oranga Tamariki goes back to the Family Court judge to get them to limit your access.

How often you’ll get to have contact can depend on whether the child has been permanently placed with new caregivers. If the goal is for your child to be returned to your care at some point, the purpose of contact will be to maintain and strengthen your relationship with your child. In these situations, more frequent contact would be justified.

It will be different if your child is placed permanently with other caregivers. Then the purpose of you having contact with your child will be for them to keep their sense of identity and family/whānau connections, not for you to maintain a long-term relationship with the child. In these situations, contact has often been limited to only four times a year.

Case: [2013] NZHC 1787

If you’ve got more than one child in care, the judge could take that into account when deciding how often you should get to have contact and for how long. For example, if there are several children, maintaining a sense of identity and background may require more frequent contact compared with just one child (even if it’s a permanent placement), so that the parent will have enough one-on-one time with each child.

Supervised contact

Oranga Tamariki Act 1989, s 178

Sometimes judges order that contact has to be supervised, if they’re not satisfied the child will be physically and emotionally safe during contact.

Judges sometimes require a psychiatric report on a parent before they will give them unsupervised contact with their child, although the parent can’t be forced to have the assessment.

The costs of supervision (for example, the costs of paying a psychiatrist to supervise the contact) can potentially be met by the judge making a services order (see earlier in this chapter, “Services orders and support orders: monitoring and support from Oranga Tamariki”).

Other kinds of care and protection orders

Restraining orders: Preventing people having contact with the child

Oranga Tamariki Act 1989, s 87

A restraining order will prevent particular people named by the judge, perhaps one of the parents, having any contact with the child.

Counselling orders

Oranga Tamariki Act 1989, s 74

The judge can also order the parents or the child to go to counselling. But judges tend to be reluctant to order people to do this, and so these counselling orders aren’t made very often.

Punishments for children who’ve been breaking the law

Oranga Tamariki Act 1989, s 84

If the judge decides a child needs care or protection on the basis that they’ve been committing crimes, the judge can also do these things:

  • tell the child off (called “admonishing” them)
  • order the child or their family or whānau to pay money to a victim of the crime, to compensate them for the loss or harm they’ve suffered
  • order the child or their family or whānau to give back property that the child had stolen.
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