Dealing with Oranga Tamariki / Ministry for Children
Waitangi Tribunal report on Oranga Tamariki: He Pāharakeke, He Rito Whakakīkinga Whāruarua
In 2021 the Waitangi Tribunal released a report after a two-year inquiry into the actions of Oranga Tamariki/Ministry for Children. They investigated whether the policies and practices of Oranga Tamariki are consistent with the Waitangi Tribunal. The inquiry asked three important questions:
- Why is there a greater proportion of Māori children being taken into state care compared to non-Māori?
- What changes have been made since 1997 to address this?
- What future changes in law, policy and practice are needed to make sure outcomes are consistent with te Tiriti o Waitangi/the Treaty of Waitangi?
The report, He Pāharakeke, He Rio Whakakīkinga Whāruarua, said that Oranga Tamariki seriously breached te Tiriti o Waitangi/the Treaty of Waitangi and recommended that Oranga Tamariki ‘step back’ and for a Māori transition authority to be formed.
The Tribunal said Oranga Tamariki acknowledged that colonisation, structural racism and historical injustices are some of the reasons why there is a greater proportion of Māori being taken into state care compared to non-Māori. However, they had failed to implement sufficient changes to improve this. They recommended establishing a separate Māori transition authority that can identify changes to eliminate the need for state care of tamariki Māori.
Parents and caregivers who have come into contact with Oranga Tamariki will often be in one of two situations:
- Oranga Tamariki is investigating their family or whānau or has otherwise contacted them with concerns about the children
- Oranga Tamariki has applied to the Family Court for a judge to make Care or Protection Orders.
This chapter explains what can happen in those different types of cases and what your options might be as a parent or family or whānau member.
You can get legal aid if Oranga Tamariki takes you to court
As soon as Oranga Tamariki apply to the Family Court for Care or Protection Orders under the Oranga Tamariki Act, you can apply to have a Legal Aid lawyer represent you. The lawyer will help you work out how to respond to Oranga Tamariki.
If Oranga Tamariki apply to the Family Court, you only have seven days to file your response with the court – so talk to a lawyer as soon as possible.
To apply for a legal aid lawyer, start by phoning the Legal Aid section at the Ministry of Justice, on 0800 2 Legal Aid (0800 253 425), or see their website, here (or go to: www.justice.govt.nz and click on “Legal Aid”).
For more information about Legal Aid for Family Court cases, see: “Family/civil Legal Aid”.
At what ages do the care and protection laws apply to children?
The care and protection laws apply to children up to and including the age of 17. Once you turn 18, you can’t be dealt with under those laws.
This used to be different. Before April 2017 the ages only went up to age 16, so that 17 year olds fell outside the care and protection system.
The care and protection laws use different terms to describe:
- children up to and including age 13 – they’re a “child”
- teenagers aged 14, 15, 16 or 17 – they’re a “young person”.
But in this chapter, to keep things simple, we just use the word “child” to describe anyone who’s under 18 and so covered by the care and protection laws.
The official decision-makers: Who’s who
The government agency that runs the child protection system is Oranga Tamariki / Ministry for Children, which was set up in 2017. At first its English name was “the Ministry for Vulnerable Children,” but in early 2018 the government took out the word “Vulnerable”.
There have been a lot of name changes in this area over the years. When Oranga Tamariki was set up, it took over the child protection role from the organisation that was called “Child, Youth and Family”. Child, Youth and Family had been just one part of the big government department the Ministry of Social Development (“MSD” – which still exists, but without the child protection role). Oranga Tamariki is a separate, stand-alone government ministry.
Some people who work in the child welfare area still often refer to Oranga Tamariki as “CYFS” – saying it like “Siffs”.
An overview of the process and possible steps
Here is a summary of how a case that goes all the way to the Family Court might unfold, and the issues and options that might come up along the way:
- Report about suspected harm or neglect – After a report to Oranga Tamariki or the police, Oranga Tamariki could investigate and decide that there’s a problem that needs to be addressed.
- Dealing with the case informally – Oranga Tamariki will look at whether the problem is something that could be dealt with without involving courts and judges or the official Family Group Conference process at all. For example, if the child is OK but Oranga Tamariki thinks the family/whānau needs some help, they might organise a family/whānau meeting. That meeting could result in a “family/whānau agreement,” with goals and an agreement for Oranga Tamariki support.
- Formal action from Oranga Tamariki: Family Group Conferences – If Oranga Tamariki thinks the child needs care or protection, they’ll arrange an official Family Group Conference. This is a meeting that includes the child, parents/caregivers and other family/whānau members, as well as Oranga Tamariki, the police and sometimes people from other organisations. If the Family Group Conference can agree on how to deal with the issues, it’ll come up with a written agreed plan, which will be reviewed in a few months’ time (from 3 to 9 months). If everything goes OK, the case won’t need to go to the Family Court at all.
- Family Group Conference can’t agree – If the Family Group Conference can’t reach agreement because the family/whānau and Oranga Tamariki don’t agree, Oranga Tamariki could possibly decide to not do anything further. But they may well decide to apply to the Family Court for Care or Protection Orders, and this will include putting a proposed plan to the court.
- Applying to the Family Court – If Oranga Tamariki applies to a judge for Care or Protection Orders, there are different options for the parents/caregivers.
- They could decide to oppose the application on the grounds that their child doesn’t need care or protection from Oranga Tamariki and the Family Court.
- Or they could decide to not dispute that their child needs care or protection but to oppose the specific orders Oranga Tamariki wants. For example, instead of a Custody Order that would take the child away from the parents, they might argue instead that the child should stay with them and that the judge should make a support order and a services order for Oranga Tamariki to provide help and supervision.
- Or the parents might decide to accept the orders that Oranga Tamariki wants, but to oppose the specific plan that Oranga Tamariki has put forward. For example, they might argue about what the plan should require the parent to do (like doing a drug test), or about the amount of contact the parent will have with the child if the child is going to be in Oranga Tamariki care for a while.
- Family Court makes Care or Protection Orders – The judge can make specific Care or Protection Orders if they think the legal grounds for making the orders exist. The judge could decide, for example, to leave the child with the parents but to order Oranga Tamariki to provide support and supervision (under a support order and a services order), or the judge could decide the child needs to be with other caregivers for a time (a Custody Order). Oranga Tamariki will have to come up with a formal plan for each case, and this will be reviewed after, say, six months. Sometimes a case could go through several cycles of an order, a plan and a review.