Guidance
Care agreements
Sections 139 and 140 of the Oranga Tamariki Act provide for tamariki and rangatahi to enter care through a voluntary agreement with the parents, guardians or person having care of them. The period of time depends on their age and the type of agreement.Considering a care agreement
Under the provisions of sections 139 and 140, tamariki and rangatahi come into the care of the chief executive or an approved service (under section 396 of the Oranga Tamariki Act) as part of a time-limited plan to address the needs of te tamaiti or rangatahi.
A care agreement can only be agreed if the plan at the end of the care agreement is for te tamaiti or rangatahi to return home (section 139 or section 140) or for a successful transition towards independence (section 140(1)(d)).
As we build our understanding of oranga with te tamaiti or rangatahi and their parents or guardians or the person having care of them, we explore whether providing support services and resources may resolve the concerns while enabling te tamaiti or rangatahi to remain at home.
If our analysis and assessment support care for te tamaiti or rangatahi through a care agreement, we consult with our supervisor.
Staff resource: Operational delegations (PDF 1.1 MB) | Te Pae (pages 55 and 56)
Agreement for temporary care
A temporary care agreement (section 139) can be agreed with the parent, guardian or person caring for te tamaiti or rangatahi for up to 28 days and can be extended for one further period of up to 28 days.
A temporary care agreement can be used when the parent, guardian or person caring for te tamaiti or rangatahi is temporarily unable or unwilling to care for them. It is not appropriate to use a temporary care agreement when there are serious care or protection concerns.
Agreement for extended care
An extended care agreement (section 140) can be agreed with the parent, guardian or person caring for te tamaiti or rangatahi with approval at a family group conference. The coordinator needs to be satisfied that the agreement complies with legal requirements and is appropriate.
Extended care (more than 28 days) can be provided for:
- tamariki aged under 7 years for up to 6 months
- tamariki and rangatahi aged 7 years and above for up to 12 months.
Extended care for a rangatahi aged 15 years and above being supported to transition towards independence may be entered into for up to 12 months and may, if approved by a family group conference, be extended by further periods of up to 12 months.
An extended care agreement requires a parent, guardian or member of the family, whānau or family group of te tamaiti or rangatahi to be willing to maintain contact with them for the duration of the agreement (this is not necessary for a section 140(1)(d) agreement).
Consent for a care agreement
A parent, guardian or person having care of te tamaiti or rangatahi can enter into a care agreement for them.
Before entering into a care agreement, we should ensure we understand the existing custody arrangements for te tamaiti or rangatahi and who has the legal right to care for them. It’s important that we know about any court orders in place, including orders under the Care of Children Act 2004, Adoption Act 1955 or Family Violence Act 2018. This will help us ensure we're entering into a care agreement with the right people.
Parents, as guardians, will usually share custody of te tamaiti or rangatahi and have equal legal rights to care for them. Where this is the case, we should seek the consent of both parents to the care agreement. If one parent refuses consent, their legal rights can't be disregarded and we can't enter into a care agreement. An alternative response will be needed.
A person having care of te tamaiti or rangatahi through an informal arrangement (such as an agreement with a whānau or family member or a friend) does not have legal rights to care for them. While they can enter into a care agreement in the absence of the parents or guardians, this does not remove or override the legal custody rights of the parents or guardians.
Before an extended care agreement is entered into, we seek and consider the wishes and views of te tamaiti or rangatahi. An extended care agreement for tamariki and rangatahi over the age of 12 years can only be agreed with their consent.
The person entering into the agreement needs to fully understand the effect of the agreement – in particular, the custody powers and the requirements for terminating the agreement.
Read through the agreement with te tamaiti or rangatahi and the parent, guardian or person having care of them and provide an opportunity to ask questions and negotiate the conditions of the agreement. Encourage and support them to seek legal advice if te tamaiti or rangatahi or the parent, guardian or person having care of them need support to fully understand the agreement or its effect.
We can enter into an extended care agreement without all parents or guardians being a party to the agreement if a parent, guardian or person having the care of te tamaiti or rangatahi:
- consents in writing to the making of the agreement (following the family group conference) but does not agree to sign the agreement as a party
- cannot after reasonable enquiries be found, or
- is incapable of entering into the agreement.
Monitoring the plan
During implementation of an extended care agreement plan, if it appears the outcomes are not being achieved, reconvene the family group conference to consider whether a longer period of care or a different response is needed.
The family group conference needs to consider whether a court order is required or, in the case of a section 140(1)(d) extended care agreement, whether an extension (of up to 12 months) is needed.
Agreement requirements
Every agreement should be in writing and specify the term of the agreement and the way it can be terminated.
The agreement should contain provisions relating to the care of te tamaiti or rangatahi during the agreement, including:
- their educational, social, cultural and religious needs
- a programme for the provision of services and assistance for the benefit of te tamaiti or rangatahi
- the rights and obligations of the parents or guardians
- access to te tamaiti or rangatahi by their parents, guardians or any other person.
Recording the agreement
We use the section 139 or section 140 document templates to record consent and the terms and provisions of the agreement. (The templates are found under Care Agreements on CYRAS.)
Each person should sign the document, evidencing their agreement and consent. Each person should also be provided with a copy. This includes tamariki and rangatahi aged over 12 years who are the subject of a section 140 extended care agreement.
The templates can be modified to reflect the agreement being made, providing this is consistent with the statutory requirements – for example, a section 140 agreement may run for a shorter period of time, but it cannot be agreed that it run for more than the legal maximum.
If in doubt over a proposed change to the template, consult with a supervisor or Legal Services solicitor.
Ending the agreement
An agreement ends when the terms of the agreement expire. Often this will be due to the duration of the period in care or the age of the rangatahi. There is no authority for the chief executive to retain care of te tamaiti or rangatahi under a care agreement once the terms of the agreement have expired.
An agreement can be terminated before its end date, in the way specified in the agreement. If not specified in the agreement, a section 139 temporary care agreement can be terminated by verbal notice and a section 140 extended care agreement by 7 days’ notice in writing.
If a parent or guardian who is a party to the agreement seeks care of te tamaiti or rangatahi, we need to recognise their right to that care and that they are initiating the termination of the agreement.
The care agreement functions as a contract between the parties and only impacts on the legal rights of the people who sign it. If a parent or guardian has a legal right to custody but did not sign the agreement (because they chose not to be a party or couldn't be found at the time of making the agreement), and then they advise that they want to care for te tamaiti or rangatahi, the notice period doesn't apply and we take immediate action to respond to their request.
An extended care agreement can also be terminated if a family group conference decides the agreement should be terminated.
Ending an extended care agreement by withdrawing consent
If an extended care agreement is in place and te tamaiti or rangatahi over the age of 12 years formally advises that they want to withdraw their consent to the agreement, this should be treated as a notice of termination of the agreement. Their consent is a statutory requirement for the agreement, and they have the right to participate in decision-making and have their views taken into account.
Our work with te tamaiti or rangatahi should be on a consensual basis. We should first explore with them why they want to withdraw consent and whether there are any mitigating actions we could take to preserve the agreement and meet their needs.
Actions in response to the withdrawal of consent by te tamaiti or rangatahi might include reconvening the family group conference to formulate new plans, or developing options to give better effect to the views now being expressed by te tamaiti or rangatahi.
If we have concerns following a care agreement
If we have concerns for the safety and oranga of te tamaiti or rangatahi at any time following the ending of a care agreement through expiry, termination or withdrawal of consent, we follow our usual processes to ensure their safety and oranga, which might include court orders.