Auckland and parts of Waikato are at Alert Level 3. The rest of New Zealand is at Alert Level 2. 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: 22/10/2021
Printed pages may be out of date. Please check this information is current before using it in your practice.

Last updated: 24/02/2021

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.

Upcoming changes for this guidance

This content will be strengthened so it more completely reflects our commitment to practice framed by te Tiriti o Waitangi, based on a mana-enhancing paradigm for practice, and drawing from ​Te Ao Māori principles of oranga to support mana tamaiti, whakapapa and whanaungatanga. We each need to consider how we can apply these principles to our practice when reading this guidance. The following resources provide support:
Practice for working effectively with Māori
Our practice shift

Oranga Tamariki Act 1989 – care and protection section

Custody

The sections of the Act outlined below list the different custody options. Some sections allow certain people (other than the Oranga Tamariki chief executive) to be awarded custody under this Act (and they in turn will then have authority to place the child or young person in accordance with the requirements of the Act).

The Oranga Tamariki chief executive is responsible for approving who can be an iwi social service, a cultural social service and a child and family support service.

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

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

Section 42: in the custody of the Oranga Tamariki chief executive after search without warrant by the Police (5 day maximum)

Section 48: in the custody of the Oranga Tamariki chief executive following delivery of an unaccompanied child or young person to a social worker by the Police

Section 78: in the interim custody of any of the following people, by Family Court order, pending determination of proceedings:

  • Oranga Tamariki chief executive
  • an iwi social service
  • a cultural social service
  • the director of a child and family support service
  • any other person

Section 82: returned to the custody of the parent or guardian or other person who had the care of the child or young person immediately before a section 78 order was made, by a person granted interim custody under section 78

Section 101: in the custody of any of the following people, by Family Court order, following the making of a declaration that a child or young person is in need of care or protection

  • Oranga Tamariki chief executive
  • an iwi social service
  • a cultural social service
  • the director of a child and family support service
  • any other person

Section 102: in the interim custody of any of the following people, by Family Court order, following the making of a declaration (time limited to no more than 6 months):

  • Oranga Tamariki chief executive
  • an iwi social service
  • a cultural social service
  • the director of a child and family support service
  • any other person

Section 205(2)(b): in the custody of the Oranga Tamariki 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 Oranga Tamariki chief executive by way of court order pending determination of an appeal

Guardianship

Section 110: in the sole guardianship of, or as an additional guardian, any of the following people, by Family Court order if it is satisfied that a child is in need of care or protection (check there is no custody order in favour of another person):

  • Oranga Tamariki chief executive
  • an iwi social service
  • a cultural social service
  • the director of a child and family support service
  • any other person

Placement

Section 43: a child or young person in the custody of the Oranga Tamariki chief executive under sections 39, 40 or 42 may be placed with:

  • a parent or guardian of the child or young person
  • any other person who previously had the care of the child or young person
  • any member of the child or young person’s family, whanau or family group
  • any person approved by the Oranga Tamariki chief executive

or, if any of the above are not practicable or appropriate, the child or young person may be placed in a residence

Section 104 (and 80): where the Oranga Tamariki chief executive has custody under section 78 or 101, the child may be placed with such person or in such residence as the principal manager for the relevant area in which the court is situated directs

Section 139: by agreement between the parent or guardian (or whoever else has the care of the child or young person) and the other party (listed below) for up to 28 days, with the ability to extend the temporary care arrangement for another 28 days by agreement:

  • Oranga Tamariki chief executive
  • an iwi social service
  • a cultural social service
  • director of a child and family support service

Section 140: subject to sections 143 to 147, by agreement between the parents, guardians (and whoever else has the care of the child or young person) and the other party (listed below) for a period between 29 days and 6 months for children aged under 7 years and a period between 29 days and 12 months for children and young people 7 years and older:

  • Oranga Tamariki chief executive
  • an iwi social service
  • a cultural social service
  • director of a child and family support service
  • any other person approved by the chief executive in the case of a young person aged 15 years or more for the purpose of assisting the young person to achieve independence

The period of placement can be extended by further periods of up to 12 months in the case of the placement of a young person aged 15 years or more for the purpose of assisting the young person to achieve independence, if approved by a family group conference

These section 140 agreements can only be made in respect of children 12 years and older and young people, if that child or young person consents in writing

Section 362: where the Oranga Tamariki chief executive has custody or guardianship or temporary care by agreement under the above-mentioned provisions (other than section 48), the Oranga Tamariki chief executive may place the child in the charge of any person or organisation which the chief executive considers suitable to provide for that child or young person's care, control or upbringing

Section 365: the Oranga Tamariki chief executive may place children and young people in residences, but subject to the requirements of that provision (and section 43, if applicable)

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).