Guidance
Use of legal orders to support a safe, stable and loving home for tamariki in permanent care
Legal orders for permanent care can support security and stability for tamariki who have been in our care or custody and their caregivers.Upcoming changes for this guidance
Guidance replaces Noho ake Oranga supporting information
This guidance replaces the information that supported the policy ‘Noho ake Oranga – permanency and enhancing wellbeing for tamariki in care'.
How we provide support
We will help caregivers apply for legal orders that support a safe, stable and loving home for tamariki that enhances their interests and oranga (wellbeing). Ongoing support for permanent caregivers is also available.
Policy: Ensuring a safe, stable and loving home for tamariki in care
Legal orders available to support permanent care
The following orders are available to support day-to-day care or guardianship for caregivers:
- Parenting and/or guardianship orders under the Care of Children Act 2004
- Special guardianship, or in some cases guardianship, under the Oranga Tamariki Act 1989.
Selecting a legal order
The order (or orders) selected should support:
- a safe, stable and loving home for te tamaiti
- te tamaiti to maintain and strengthen their connection to their family, whānau, hapū, iwi and family group
- the family, whānau, hapū, iwi and family group to exercise their whanaungatanga responsibilities.
Selecting the legal orders that best suit the situation for te tamaiti and their whānau or family requires working in partnership with te tamaiti, whānau or family, the caregiver, Legal Services, and any other parties as appropriate, including the hapū, iwi or family group of te tamaiti.
Caregivers, including whānau caregivers, should also speak to their own legal representative.
Work closely in partnership with others
Whakamana te tamaiti: Practice empowering tamariki Māori — guidance
Ensuring relationships and connections
Te tamaiti has the right to positive and enduring relationships with their family, whānau, hapū, iwi and family group and these will continue to be upheld in any permanent care arrangement.
For all tamariki this includes recognition of important relationships and connections and ensuring that these are supported and maintained. This will include values, cultural beliefs and practices, and links to significant places such as marae.
We support caregivers to ensure that the legal orders selected reflect these relationships and connections.
Social workers should work in partnership with the caregiver, family, whānau, hapū, iwi and family group to ensure the long-term needs of tamariki are met. Social workers should also work alongside te tamaiti to ensure their views are sought and taken into account throughout the process.
Work closely in partnership with others
Whakamana te tamaiti: Practice empowering tamariki Māori — guidance
Applying for legal orders
A caregiver can apply for Care of Children Act orders or for a special guardianship order under the Oranga Tamariki Act.
In all applications, we will be required to report to the court.
Parenting and guardianship orders under the Care of Children Act 2004
Caregivers may apply for parenting and guardianship orders under the Care of Children Act to support permanent care for te tamaiti.
- A parenting order gives the responsibility of providing day-to-day care to the caregiver, either alone or jointly with 1 or more persons.
- A guardianship order allows the caregiver to be part of important decisions in the upbringing of te tamaiti.
Caregivers will usually be appointed as additional guardians rather than sole guardians, as the mother (and often the father) of te tamaiti are automatically natural guardians. The caregiver will share guardianship responsibilities with the other guardians of te tamaiti.
All guardians consult and agree on major decisions about the upbringing of te tamaiti, for example, education, place of residence, travel, religion and healthcare.
We must consider whether legal orders are required for contact to support enduring connections.
Policy: Ensuring a safe, stable and loving home for tamariki in care – planning for permanent care
Special guardianship orders under the Oranga Tamariki Act 1989
A special guardianship order is an alternative way of achieving custody and guardianship to support permanent care for te tamaiti.
The court will only grant a special guardianship order if the appointment is made for the purpose of providing te tamaiti or rangatahi with a long-term, safe, nurturing, stable and secure environment that enhances their interests. The Ministry of Justice has a form and guidance for people wanting to apply to the court for such an order.
Ministry of Justice special guardianship order – template (DOCX 41 KB)
We will only support applications for special guardianship if:
- the needs of te tamaiti cannot be met under parenting and guardianship orders under the Care of Children Act, and
- the terms of the order are consistent with the principles of the Oranga Tamariki Act including the maintenance of whakapapa connections and whanaungatanga responsibilities, and
- we are satisfied that the effects of the proposed order are well understood by tamariki and their whānau.
A special guardianship order:
- provides the special guardians with day-to-day care of te tamaiti until age 18 and guardianship of te tamaiti until age 20
- specifies the access rights of existing guardians
- allows the ongoing role played by all guardians to be specified based on what is best for te tamaiti
- requires the court to specify which guardianship rights will be shared between the special and existing guardians, and which rights (if any) will be held exclusively by the special guardian.
In most cases, all guardianship rights will be shared by the special guardians and existing guardians. The court may consider giving specific guardianship rights exclusively to a special guardian if alternative methods cannot resolve any guardianship issues impacting on te tamaiti.
Before the court can make a special guardianship order, we will be required to prepare a section 186 social work report and section 128 implementation plan. It’s important that we work in partnership with all guardians, family, whānau, hapū, iwi and family group members as appropriate, and any other relevant parties as we prepare the report and plan.
Our planning needs to address the needs of te tamaiti, particularly tamariki Māori, in being supported to maintain important relationships and connections, so that whānau, hapū and iwi (and family groups) can exercise their whanaungatanga responsibilities.
We need to ensure that we are supporting all parties (tamariki, their whānau or family and caregivers) to fully understand the effects of the proposed special guardianship order, and to have an opportunity to share their views.
Policy: Ensuring a safe, stable and loving home for tamariki in care – planning for permanent care
Whakamana te tamaiti: Practice empowering tamariki Māori — guidance
Special guardianship – variation of an existing order
A special guardian, and others, can apply for a variation to an existing special guardianship order.
If all parties consent, the person can apply directly to the court. Without the consent of all parties, leave of the court is required. Leave will only be granted if it can be demonstrated that there has been a significant change in the circumstances of te tamaiti, their parents or any guardian.
Oranga Tamariki can make an application to vary a special guardianship order without leave of the court, or a parent, guardian or special guardian can approach us if they wish to apply to vary the order.
We will only apply to vary a special guardianship order if we believe that varying the order is in the best interests of te tamaiti and is consistent with the principles of the Oranga Tamariki Act, in particular the maintenance of whakapapa connections and whanaungatanga responsibilities.
Before the court can vary a special guardianship order, we will be required to prepare a section 186 social work report and section 128 implementation plan. It is important that we work in partnership with all guardians, family, whānau, hapū, iwi and family group members as appropriate, and any other relevant parties. Our planning needs to address the needs of te tamaiti, particularly tamariki Māori, in being supported to maintain important relationships and connections, so that whānau, hapū and iwi (and family groups) can exercise their whanaungatanga responsibilities.
We need to ensure that we are supporting all parties (tamariki, their whānau or family and caregivers) to fully understand the effects of the proposed variation to the special guardianship order, and to have an opportunity to share their views.
Ensure that Legal Services are consulted through this work.
Policy: Ensuring a safe, stable and loving home for tamariki in care – planning for permanent care
Whakamana te tamaiti: Practice empowering tamariki Māori — guidance
Special guardianship – change in living circumstances
A special guardianship order is not reviewed, but a special guardian has an obligation to advise Oranga Tamariki if te tamaiti begins to live with anyone else on a more than temporary basis.
If we are notified of a change in living circumstances for te tamaiti (by any person including the special guardian) we will carry out an assessment to:
- ensure the new living arrangement is safe and stable for te tamaiti, and
- determine what should be done about the current special guardianship order.
The scope of the assessment should include:
- exploring the reasons for the change in living arrangement
- assessing the suitability of the new living arrangement and what supports may be required– this includes Police and CYRAS checks for the new caregivers and other adults in the new household
- deciding whether the current special guardianship order should be discharged and whether a new order should be made in favour of the new caregivers
- ensuring that the new living arrangement advances the needs of te tamaiti, particularly tamariki Māori, in remaining connected with their family, whānau, hapū, iwi and family group
- recognition of important relationships and connections and ensuring that these are supported and maintained – this includes values, cultural beliefs and practices, and links to significant places such as marae.
If the new caregiver elects to obtain legal orders for the permanent care of te tamaiti they would then be deemed a permanent caregiver and be entitled to financial and other assistance available under section 388A.
Support for permanent caregivers
Reporting of concerns to chief executive or constable – section 15 of Oranga Tamariki Act 1989
Whakamana te tamaiti: Practice empowering tamariki Māori — guidance
Changing from Care of Children Act orders to special guardianship orders
Permanent caregivers with existing Care of Children Act orders may believe that a special guardianship order would better meet the needs of te tamaiti because issues between the guardians are affecting the oranga (wellbeing) of te tamaiti.
The option to change to a special guardianship order is only available to permanent caregivers who already have Care of Children Act orders that have replaced custody orders in favour of the chief executive.
The permanent caregiver will seek leave of the court. Leave of the court will only be granted if the court is satisfied that:
- the caregiver has first exhausted all mechanisms available under the Care of Children Act to resolve disputes with any other guardian of te tamaiti, and
- there has been a significant change in the circumstances of te tamaiti or their parents or guardians.
The application to vary a special guardianship order will only be granted if the court is satisfied that:
- the permanent caregiver has been unable to effectively exercise their guardianship or day-to-day care responsibilities under their existing Care of Children Act orders, and
- the inability is due to the conduct of other guardians of te tamaiti, and that conduct forms a pattern of behaviour, and
- the welfare of te tamaiti is being threatened or seriously disturbed as a result.
Before the court can vary a special guardianship order, we will be required to prepare a section 186 social work report and section 128 implementation plan. It is important that we work in partnership with all guardians, family, whānau, hapū, iwi and family group members as appropriate, and any other relevant parties. Social workers should also work alongside te tamaiti to ensure their views are sought and taken into account throughout the process.
Our assessment will need to cover:
- why the Care of Children Act orders are no longer suitable
- the needs of te tamaiti (including maintaining connections, cultural identity and whanaungatanga needs)
- what needs to happen to address these needs
- how changing to a special guardianship order will support the oranga (wellbeing) and best interests of te tamaiti.
Ensure that Legal Services are consulted through this work.