All of New Zealand is at Alert Level 1. Please read the guidance.

COVID-19: implications for our practice

Page URL: https://practice.orangatamariki.govt.nz/our-work/interventions/family-court-orders/legal-statuses-for-custody-guardianship-or-placement/
Printed: 01/12/2020
Printed pages may be out of date. Please check this information is current before using it in your practice.

Last updated: 31/08/2020

Legal statuses for custody, guardianship or placement

The Oranga Tamariki Act 1989, Care of Children Act 2004, Adoption Act 1955 and Immigration Act 2009 have provisions for when Oranga Tamariki must approve the care arrangement for tamariki and rangatahi when they’re unable to live with their parents.

Oranga Tamariki Act 1989 – care and protection section

Section 39: in the custody of the chief executive upon a warrant being executed (5 day maximum)

Section 40: in the custody of the chief executive upon a warrant being executed (5 day maximum)

Section 42: in the custody of the chief executive after search without warrant by the Police

Section 48: in the custody of the chief executive following delivery to a social worker by the Police

Section 78: in the custody of the chief executive by Family Court order, pending determination of proceedings

Section 101: in the custody of the chief executive by Family Court order, following the making of a declaration

Section 102: in the interim custody of the chief executive by Family Court order, following the making of a declaration (time limited)

Section 110(2)(a): in the sole guardianship of the chief executive by Family Court order following the making of a declaration (check there is no custody order in favour of another person)

Section 139: in the custody of the chief executive by way of statutory agreement called a temporary care agreement which is signed by any parent, guardian or other person having the care of the child or young person (time limited)

Section 140: in the custody of the chief executive by way of statutory agreement called an extended care agreement which is signed by any parent, guardian or other person having the care of the child or young person (time limited and family group conference must be held prior)

Section 205(2)(b): in the custody of the chief executive upon a warrant being executed to prevent the removal from New Zealand. Custody continues pending the order or further order of the court

Section 345: in the custody of the chief executive by way of court order pending determination of an appeal

Oranga Tamariki Act 1989 – youth justice section

Section 235: in the custody of the chief executive, placed with the chief executive by Police within 24 hours of arrest

Section 238(1)(d): detained in the custody of the chief executive by order of the Youth Court pending hearing of the charge

Section 307(4): in the custody of the chief executive if a young person has a supervision with activity order and activity is not able to be undertaken while living with parents/guardian/usual caregivers. Young person must consent to the making of this order which has the same effect as a section 101 custody order except that the young person cannot be placed in a section 364 residence

Section 311: placed in the custody of the chief executive following charge being proved. Placement to be in residence specified in plan approved by court

Occasions under Oranga Tamariki Act 1989 where approval of placement occurs – custody not vested in the chief executive

Section 29 (care and protection family group conference) and sections 260 and 261 (youth justice family group conference): social worker and coordinator, as entitled members of the family group conference and as representatives of the chief executive at the family group conference, to satisfy themselves that any placement recommended in the plan will promote the wellbeing of the child or young person and not place the child or young person at risk of harm (social worker and/or coordinator may choose to agree to the plan on the basis that a caregiver assessment is completed prior)

Section 238 (1)(c): social worker to approve placement of child or young person pending hearing of charges in Youth Court (child or young person is not in the custody of the chief executive under this section)

Care of Children Act 2004

Section 31: in the guardianship of the Family Court. In the majority of cases, the Family Court appoints the chief executive as the agent of the court. It is important to clarify with the court the exact parameters of the chief executive’s agency/authority. Oranga Tamariki may only make decisions as to placement if clearly authorised by the court

Section 77(3)(a): in the custody of the chief executive upon a warrant being executed to prevent removal from New Zealand. Custody continues pending the order or further order of the court

Adoption Act 1955 – custody not vested in the chief executive

Section 6(a): a child under the age of 15 years may be in a home for the purpose of adoption when prior approval has been given by a social worker

Immigration Act 2009

Section 331: where a child or young person arrives in New Zealand and fails to apply for a visa, is refused a visa, is a stowaway, or holds a cancelled or expired visa, they are liable for turnaround or to be arrested and detailed. Where a child or young person is arrested without a warrant and placed in custody, they must be detained in a residence (within the meaning of section 2(1) of the Oranga Tamariki Act 1989 or other premises under the control of or approved by the chief executive of Oranga Tamariki). Alternatively if the young person is not married or in a civil union, they may be detained in any other premises agreed by the immigration officer and by the young person's parent or guardian or a responsible adult. A responsible adult is a nominated person to represent the child or young person's interests under section 375. This nominated person may include a social worker.

Section 332: where a child or young person is arrested with a warrant and placed in custody, they must be detained in a place approved for the purpose by the District Court judge. This will be a residence (within the meaning of section 2(1) of the Oranga Tamariki Act 1989) or other premises under the control of or approved by the chief executive of Oranga Tamariki. Alternatively if the young person is not married or in a civil union, they may be detained in any other premises agreed by the immigration officer and by the young person's parent or guardian, or a responsible adult. They may also be detained in a premises approved by the chief executive for the purpose of detention under the Immigration Act (for example, the Mangere Resettlement Centre).