Competing principles in legislation
At the heart of our mahi, we identify competing rights that kaimahi need to balance.
The Adoption Act 1955 preferences the rights of mothers or guardians, who are legally entitled to make adoption decisions in isolation from family, whānau, hapū, iwi and family group, including the father when he is not a guardian.
Rights of pēpi
The Oranga Tamariki Act 1989 preferences pēpi in the context of their family, whānau, hapū, iwi and family group, and includes the right:
- for pēpi to be in a loving, enduring home
- for decisions about their future to be made in a timely manner
- for pēpi to know both their maternal and paternal whakapapa.
The principles of mana tamaiti, whakapapa and whanaungatanga should be addressed when considering the welfare and best interests of pēpi under section 11 of the Adoption Act as they would be considered under the principles and section 7AA of the Oranga Tamariki Act.
This means that, when approving placements or preparing reports, social workers should carefully consider the impact of adoption on the whakapapa of pēpi and discuss this with the mother or guardian.
In Aotearoa New Zealand, whakapapa links to whānau or family, people, places, whenua, marae, and significant events enhance mana tamaiti and support oranga outcomes.
Under section 11 of the Adoption Act, kaimahi are expected to meet their professional and legal obligations by considering the rights and obligations of all participants under the different relevant legislation. This includes a holistic consideration of the 'welfare and interests of the child' – noting that this differs from the Oranga Tamariki Act.
Sections 7 and 7AA of the Oranga Tamariki Act apply to all services provided by social workers in Oranga Tamariki, including those under the Adoption Act, and these principles should be considered by Adoption social workers in all their work.
In recent years, the Family Court has supported a more inclusive approach to adoption by requesting that the views of the birth father are considered as part of ensuring the welfare and interests of pēpi. However, courts will exercise judgement and discretion on whether they will support a mother's right to proceed with adoption without a birth father's involvement as the law allows it.
Wherever possible, we should seek the birth father's views and involvement as part of understanding whether and how the adoption will promote the welfare and interests of pēpi – however, this is not always possible. Skilful engagement is required to work with everyone involved.
Kaimahi need to be transparent with expectant parents and draw on a wide range of knowledge to help parents understand the impact of their decisions on their pēpi and the limits of what can be provided under the current legislations.
When we call a consult
Early consultation between Adoption and Care and Protection kaimahi may be needed when:
- there are indications of potential care or protection concerns
- a second section 139 temporary care agreement is likely to be needed
- the father or other whānau or family members disagree with the adoption plan
- a mother is no longer actively progressing an adoption plan, although we are continuing to provide care
- the case complexities require a collaborative response
- a care and protection assessment is underway, and the expectant parent wants to consider adoption for their pēpi.
A report of concern is not required to initiate a consult between Adoption and Care and Protection kaimahi.
The consult helps us to:
- decide if any care or protection concerns require a report of concern
- seek legal advice to decide which legislative framework is most appropriate to use as the mandate for our role
- ensure we get the right cultural advice
- consider any disability needs of the pēpi or parent
- balance and plan how to work with the expectant parents, including the father where possible, and their whānau or family within the legal framework decided on
- clarify how to advocate for whānau or family consultation, which is mandated under the Oranga Tamariki Act but not under the Adoption Act
- clarify what information will be shared with the whānau or family and who will share it, and the legal basis for any information being shared
- take a relational approach when deciding whether the Adoption or Care and Protection kaimahi is the key worker
- clarify the roles and responsibilities of the Adoption and Care and Protection kaimahi, including any funding support required to provide a care arrangement
- manage legislative timeframes
- where the birth parent is unable to resume care, ensure there is always a legal order or agreement in place to provide uninterrupted care for pēpi
- discuss the All About Me plan and ensure adherence to the National Care Standards – decide who is responsible for what.
Who should attend the consult
Key people to support the consult are:
- the site and Adoption practice leaders
- Adoption and Care and Protection supervisors
- the Adoption kaimahi
- senior Adoption practice staff
- Legal Services.
Consider who else might be required, such as:
- kairaranga ā-whānau or appropriate cultural advisors
- disability advisor
- any other appropriate kaimahi.
Practice considerations within the legal options available
We need specific legal advice when there are complexities involved in deciding our mandate at the interface of the Adoption and Oranga Tamariki Acts. Decisions are made by weighing up competing rights, testing assumptions and interpretations, and evidencing how practice decisions are made when balancing all the information available.
Extending section 139 temporary care agreements
The Oranga Tamariki Act states that a section 139 temporary care agreement can only be extended if the parent is unable to resume care, not unwilling.
The supervisor decides if the agreement will be extended, on advice from the Adoption social worker who is working with the parent or guardian.
If it is unlikely that an adoption process will be concluded by the end of the second section 139 temporary care agreement, we decide at the consult if orders are needed for Oranga Tamariki to continue to provide care for pēpi, and then which orders are needed. Discuss this with the parent or guardian to ensure they are aware of the timeframes.
Options for continuation of the custody of pēpi
Kaimahi can only apply for a section 78 on notice interim custody order based on care and protection concerns. Legal Services can advise which subsection of section 14 applies.
We need to follow practice policy and guidance, including the timeframes involved and the need to maintain legal custody while care decisions are being made.
If there is active engagement in the adoption process
If the parent or guardian is engaged in the adoption process but they can't conclude the adoption process within the 56 days provided by two section 139 agreements, then kaimahi need to ensure that Oranga Tamariki has the legal responsibility to provide care.
A consult is needed to consider the most appropriate order to enable care to continue until the adoption order is made.
No pēpi can be placed or remain with approved caregivers without a legal custody status.
Section 78 custody application
A section 78(1A) interim custody order is a time-limited 28-day order. The judge can direct at the time of making the order that this does not proceed to a family group conference. A section 78(1A) order cannot be extended if the situation for the pēpi has not been resolved at the end of the 28-day period. This non-extension applies only if we have indicated we will not be proceeding to a family group conference. Use the consult process to determine what alternative applications will be necessary.
The best person to apply to the court may be the Adoption kaimahi. The social work affidavit needs to include information about the adoption process underway, the rationale for the application and why a family group conference exemption is requested.
The parent who is still actively planning an adoption will still need to work with the Adoption social worker. Parents or guardians are entitled to progress an adoption plan according to the Adoption Act.
While all efforts need to be made to get parents or guardians to engage their whānau or family in decision-making, the parents or guardians retain the right to proceed without consulting their whānau or family. Adoption and Care and Protection kaimahi need to work collaboratively with a relational, inclusive and restorative approach and maintain a focus on the oranga of pēpi.
Custody orders require adherence to the National Care Standards.
Use the consult to determine who is best placed to start the All About Me plan for pēpi.
Section 31 CoCA guardianship to the Family Court (wardship)
If an adoption plan is progressing, section 31 could be considered when:
- adult dynamics are impacting on decisions being made within the time available
- a mother is adamant that they want their confidentiality maintained and they don't want their whānau or family to be informed. There is no requirement for a family group conference.
A consult with Legal Services is required to determine if this is the best legal option.
Where parents or guardians are not progressing an adoption plan
A consult is needed if a mother or guardian has requested adoption but kaimahi are unable to engage them in the process and decisions about pēpi are being delayed.
A report of concern may be needed if the mother is unwilling to care for her pēpi or is unable to provide safe care. The Care and Protection social worker needs to work closely with the Adoption social worker. Care and Protection processes encourage informed whānau-led decision-making. The Adoption process entitles the mother or guardian to make decisions in isolation from whānau or family. A consult will help plan a way through this tension.
When there are care and protection concerns
If the Adoption social worker considers there are care and protection concerns, they make a report of concern.
The adoption process cannot be used as a reason for not completing a care and protection assessment if harm or concerns have been raised.
It is not the role of Care and Protection kaimahi to form a view about whether adoption is an appropriate outcome. Any conversations regarding adoption are the responsibility of Adoption kaimahi.
A consult needs to occur so we can plan our approach. Parents or guardians should be provided with the time they need to decide on care options for their pēpi under the Adoption Act. Pēpi also has the right to have decisions made in a timely manner.
We need to engage carefully so the parents or guardians don't feel pressured into agreeing to an adoption to address any care or protection concerns.
If the Care and Protection kaimahi forms a belief that there are care or protection concerns, then they make a referral for a family group conference.
A family group conference cannot be used to facilitate an adoption process.
If the parent or guardian's past experience with Oranga Tamariki means they don't want to involve their whānau or family, Care and Protection kaimahi should explore a restorative approach with them.
Use of the Care of Children Act
Parents or guardians involved in any adoption process can change their minds before providing their consent to an adoption. They may choose to organise a kin or non-kin care arrangement.
If the parents or guardians decide on a care arrangement for pēpi that does not involve adoption, there is no role for Adoption kaimahi. However, we should recommend that they get independent legal advice.
When there are care or protection concerns
If the parents or guardians want to organise a kin or non-kin care arrangement themselves, the Care and Protection social worker has to complete their assessment and ensure the safety and oranga needs for pēpi are being addressed.
- Adoption and Care and Protection kaimahi need to have a planning consult when care or protection concerns are identified and develop a plan that meets the oranga of pēpi under section 7AA of the Oranga Tamariki Act 1989.
- A hui ā-whānau or family group conference is required to ensure the care arrangement made by the parents or guardians addresses oranga (wellbeing and safety) needs.
- All decisions are made under the policies and guidelines of the Oranga Tamariki Act.