Subsequent child provisions

When to use this guidance

You can use this guidance when it’s been determined the section 18B criteria of the Oranga Tamariki Act apply to a parent. Provisions also apply where a parent has a serious conviction relating to the death of a child.

Determining whether the criteria apply is a decision that requires careful consideration and involvement of Oranga Tamariki legal advisors.

Parent means a mother, father or step-parent, but only if the step-parent and parent share the day-to-day care responsibilities of te tamaiti. It doesn’t include near relatives or those with custody and parenting orders.

Section 18B criteria of subsequent child provisions

Person described in this section — section 18B of the subsequent child provisions of Oranga Tamariki Act 1989

When to complete a child and family assessment or investigation

A child and family assessment (CFA) or an investigation of a parent under section 18A of the subsequent child provisions is only carried out if a parent:

• has met the section 18B criteria of the subsequent child provisions, and
• has or will have a tamaiti aged 0 to 14 years in their care — even if te tamaiti turns 14 years partway through the process.

The requirement to assess doesn't apply to rangatahi aged 14 to 18 years.

Section 18B criteria of subsequent child provisions

Assessment of parent of subsequent child — section 18A of Oranga Tamariki Act 1989

Intake and allocation

When the National Contact Centre (NCC) receives a report of concern or becomes aware that the section 18B criteria of the subsequent child provisions apply, the parent is added as a participant and an indicator will automatically appear in the CYRAS record of te tamaiti. This alerts the site of the section 18A subsequent tamariki. NCC uses the decision response tool and refers onto the relevant site.

The site will analyse the information and confirm te tamaiti to be a subsequent child.

If reports of concern are received for a tamaiti who has a parent who meets the section 18B criteria, then:

• a ‘further action’ decision response outcome will be recorded
• the decision response tool is used to determine whether a CFA or investigation is required, and the appropriate response timeframe
• the CFA or investigation is allocated to a suitably skilled and experienced social worker.

The site confirms the parent who meets the section 18B criteria is the mother, father or step-parent of te tamaiti.

If this isn’t the case, the section 18A assessment isn’t required and a casenote is entered with a rationale for the decision. The casenote must be approved by a supervisor (in consultation with a site lawyer).

In all other cases, the report of concern should be treated as it would be usually. This could include making changes to the decision response if necessary, where a CFA or investigation is required to include section 18A matters.

Intake decision response tool

Intake and allocation process

• NCC receives a report of concern.
• NCC uses the decision response tool and allocates to site as usual.
• Site reviews the information and confirms the assessment includes section 18A matters.
• CFA or investigation is allocated to a suitably skilled and experienced social worker.

Assessment and decision-making

Assessment and decision-making process

1. Confirm the person meets the section 18B criteria, and what kind of harm was previously inflicted.
2. Social worker informs the parent who meets the section 18B criteria of the requirement to undertake an assessment.
3. Undertake the Tuituia assessment and include section 18A matters.
4. Consult between social worker, solicitor, supervisor and practice leader.
5. Decide which court application to make — roll to intervention.

Decision-making

Who is responsible for evidencing change

The responsibility sits with the parent to demonstrate that they’re unlikely to inflict the kind of harm that was inflicted previously. Parents need to be given the opportunity to demonstrate change, and the social worker will be looking at how the parent gathers information, evidence of change – the whanaungatanga responsibilities of whānau, hapū and iwi and their engagement in the assessment process still apply.

A child and family consult must take place between the social worker, other senior social workers, their supervisor and solicitor.

The purpose of this is to analyse the information gathered and consider the question of whether the parent is likely or unlikely to inflict (or the likelihood of inflicting) the kind of harm that was inflicted on a previous tamaiti, including other circumstances and cumulative harm.

This will then determine which court application is made.

Child/young person and family consult

Recording findings in CYRAS

CYRAS won’t require findings to be entered on these cases before closing the phase — these can be left blank. All findings are available to be applied as usual if it’s substantiated that a tamaiti has been or is likely to be seriously harmed, including other circumstances of serious harm and cumulative harm.

To record the outcome of your assessment:

• don’t enter ‘Not found’ as a finding in subsequent child cases
• all assessments which include section 18A matters must be rolled into an intervention phase to enable the court work to take place.

Informing the parent and whānau or family

When the social worker makes contact with the parent, they’re informed that the subsequent child provisions apply. This will likely be at the initial visit to the whānau or family.

Efforts should be made to get support for the parent during this time. Networks of, and supports for, tamariki, parents and their whānau or family should be acknowledged and, where practicable, hapū and iwi support used.

Speaking with tamariki

The views of any tamariki (including a child in permanent care and a subsequent child) of a parent who meets the section 18B criteria must be taken into account and shared with the parent who meets a section 18B criteria. If the views of tamariki were not followed, record the reason for not doing so. If the views of tamariki are not taken into account record the reason for not doing so. The decision, the reasons for it, and how it will affect them must be explained to tamariki involved — use professional judgement.

See and engage whānau, wider family, caregivers and when appropriate victims of offending by tamariki

Parents may be confused or concerned about why this assessment must be taken to court. Treat the parents with dignity and respect, keeping their mana intact, when discussing these concerns.

We must ensure the safety and wellbeing of tamariki is kept at the centre and, if necessary, steer conversations away from adult issues unrelated to the needs, risk, wellbeing and vulnerabilities of tamariki.

It’s important the social worker develops a positive working relationship with the parents and their whānau or family, keeps them informed, and advises them to seek legal advice.

A consult must occur between the social worker, supervisor and site solicitor to agree on the type of court application required.

Court preparation

A court application for a care or protection order must be made so that the court can consider the matter. This is regardless of whether the social worker thinks the subsequent child is likely or unlikely to experience the kind of harm inflicted on a previous tamaiti.

Social workers need to open a court record and:

• enter the order sought
• copy information from the Tuituia to the section 18A assessment
• complete the court application, affidavit and other documents
• file and serve court documents as usual
• attend the court hearing in person.

A family group conference is not to be held before any application is made to the court (other than an interim order) for a subsequent child on the grounds of section 14(1)(c). A referral for a family group conference on the grounds of section 14(1)(c) can only be made by the court.

If at any time after the enquiry an organisation, such as a government department or a local authority, is concerned with the safety and wellbeing of tamariki and believes tamariki are in need of care or protection on 1 or more grounds they may refer the matter to a care and protection coordinator.

A family group conference must be held before a care or protection order is made — all usual avenues to secure tamariki safety and wellbeing supersedes other processes.

Referral of care or protection cases to a coordinator by other body, organisation or court — section 19 of Oranga Tamariki Act 1989

There are 2 options for court applications:

• section 18C application for confirmation of decision not to apply for a care or protection order
• section 18A application for care or protection order that tamariki are in need of care or protection on the ground contained in section 14(1)(c).

Definition of child or young person in need of care or protection — section 14(1) of Oranga Tamariki Act 1989

Family group conferencing

By selecting these as ‘orders sought’ in CYRAS, the required court templates are made available. The social worker will be required to provide evidence to support their view and to assist the court in its consideration of the application.

It will be helpful for the court to be provided with:

• information showing that a parent is the parent to whom section 18A applies
• an affidavit by the social worker making the application and the reasons for the formed belief that the parent meets the requirement of section 18A(3)
• a written section 18A Tuituia assessment.

Preparing for court — responsibilities of the social worker

The section 18A specific matters contained in the Tuituia assessment, and any other relevant information on file, are copied into the ‘s18A Assessment’ by the social worker.

Don’t provide the court with the Tuituia assessment as it’s a social work practice tool and it’s not the finished document for this court process. In addition, the Tuituia assessment might contain other information that is the subject of a separate investigation or assessment through the usual processes. 

The affidavit to accompany the application to the court will identify:

• how the parent meets the section 18B(1) criteria and that the assessment was required under section 18A(1)
• the kind of harm inflicted or allowed to be inflicted on the previous tamaiti.

This sets the context for the analysis of the information gathered in the Tuituia assessment and the rationale for the type of application required. The court documents are then created as usual, but it is required that the site solicitor has input into the application and affidavit before they are filed in court. If there is any disagreement about the appropriateness of the application being progressed, this should be discussed with the site manager for a final decision.

If the social worker is applying for a care or protection order at the same time, they must seek assistance from the site solicitor, particularly with completing the court document templates, such as deciding on the right type of court application required. The template can be adapted by the site solicitor to ensure the right fit.

Court preparation process

1. Social worker opens court record and enters order sought.
2. Copy information from Tuituia to the section 18A assessment by social worker.
3. Completion of application affidavit and other documents.
4. File and serve court documents as usual.
5. Court hearing.

Court outcomes (New — care or protection order)

The court record will need to remain open while the matter is put on hold as the care or protection order can’t be made until a family group conference has been held.

A section 18A application for care or protection order could result in:

• New — care or protection order
• Declined — s18A application for care or protection order, or
• Dismissed — s18A application for care or protection order.

A section 18C application for confirmation could result in:

• New — s18C application for confirmation
• Declines to confirm — s18C application for confirmation:
  • becomes a s18A application for a care or protection order
• Dismissed — s18C application for confirmation.

The court outcomes that need to be recorded include:

• s18A application (app) for care or protection order (is made)
• s18A application (app) for care or protection order (Declined)
• s18C application (app) for confirmation (New)
• s18C application (app) for confirmation declines to confirm (Dismissed)
• s18C app for confirmation becomes a s18A app for care or protection order
• s18A app for care or protection order (Dismissed)
• s18A app for care or protection order (New).

Following the assessment — section 18A(4) of Oranga Tamariki Act 1989

Care and protection family group conferences

A care and protection coordinator follows usual convening process and court referrals:

• written reasons for a court referral
• application for a care or protection order
• family group conference held
• family group conference plan and any other required court documents filed and served
• court sits again to consider the application.

There are 2 occasions where a care or protection family group conference will be held as part of subsequent child matters:

• when the court has received an application for a care or protection order and is considering making a care or protection order on the ground contained in section 14(1)(c)
• when the court declines to confirm an application for confirmation, gives written reasons for the decision, and treats it as an application for a care or protection order.

There’s still the option to engage kairaranga ā-whānau to initiate whakapapa research and holding a hui ā-whānau before this, if necessary.

Kairaranga ā-whānau
Whakapapa research
Hui ā-whānau

The family group conference is an opportunity for the whānau or family to make a plan to address the care or protection concerns, and section 73 of the Oranga Tamariki Act whereby the care or protection order isn’t made if the concerns can be addressed by other means. However, the whānau or family can also decide to disagree with the concerns, and this is treated as a non-agreement at the family group conference.

Family group conference following an application for care or protection order

When the court receives the social worker's application for a care or protection order, the court will refer for a family group conference.

A social worker is not permitted to refer for a family group conference on the grounds of section 14(1)(c), but section 72 (whereby the court is not to make a care or protection order unless a family group conference is held) still applies. As is usual practice, the care and protection coordinator will consult and work closely with the social worker, supervisor and site solicitor to understand the context for the family group conference.

The process for convening the family group conference runs as usual. The coordinator will be mindful of the context for the family group conference — that the court is already involved and it may have already signalled its view that tamariki are in need of care or protection. It will be important to approach this in a positive light as an opportunity for the whānau or family to plan to address the past issues and the court’s concerns.

The family group conference written record will be filed in court, along with any other supporting documents the court may have requested.

Family group conferencing

Family group conference following an application for confirmation being declined

When the court declines an application for confirmation of the decision not to apply for a care or protection order, it automatically becomes an application for a care or protection order. Before the court can make any care or protection order, a family group conference must be held.

The court will provide written reasons for declining the application, and these should form the basis for presenting the concerns to the family group conference.

The family group conference will be referred for by the court. The coordinator will consult and work closely with the social worker and supervisor to understand the context for the family group conference.

Chief executive’s representative

The site manager, in consultation with the supervisor and site solicitor, will decide who is best placed to take on the role of the Oranga Tamariki chief executive’s representative, and therefore be the applicant for the care or protection order and entitled to attend the family group conference. This could be:

• the social worker, if they feel confident to do so, or
• another site staff member or a regional team member.

Persons entitled to attend a family group conference — section 22(1) of Oranga Tamariki Act 1989

Whoever takes on this role will need to be mindful that, as the applicant for the care or protection order, they may be required to attend court. If the social worker is not the applicant or Oranga Tamariki chief executive’s representative, they can attend the family group conference in an information giver role but not as an entitled member.

This may be a challenging dynamic for staff to be in, with potentially differing beliefs about the care or protection concerns. It will be important for all involved to work through any difficulties together in advance. The chief executive’s representative will be able to help the coordinator ensure that the court’s written reasons for declining the application are addressed in the conference.

The ‘lawyer for child’ may attend, if appointed during the family group conference process, to ensure the welfare and best interests of te tamaiti are represented. The process for convening the family group conference runs as usual. The coordinator will be mindful of the context for the family group conference — that the social worker had not applied for a care or protection order, which the whānau or family will also be aware of.

Essentially the court has said that it is not satisfied at this point in time that the parent has demonstrated that the past harm will not be repeated on other tamariki. The family group conference is being asked to consider the information and to decide if the subsequent child is in need of care or protection on the basis of section 14(1)(c).

If there is agreement then the family group conference can make decisions and recommendations, and formulate a plan. This then provides an opportunity for the whānau or family to be involved in the decision-making. The family group conference written record will be filed in court, along with any other supporting documents that the court may have requested.

Concurrent pathways

It’s possible that the social worker will progress a section 18A application for a care or protection order as well as forming a belief about another ‘kind of harm’.

How these potentially concurrent pathways are managed will need to be determined on a case-by-case basis, through consultation with those involved.

If the pathways align to deal with all matters at 1 family group conference, the differing grounds must still be separated and will require 2 written records.

Other pathways of information coming to Oranga Tamariki

There are a number of other pathways where Oranga Tamariki receives information about tamariki and their whānau or family. Regardless of how the information arrives, if Oranga Tamariki becomes aware of a subsequent child, the assessment and application to court must be undertaken.