Types of court ordersWe need to understand the rights, powers and responsibilities of the different court orders that place a tamaiti in the care or custody of the chief executive. Other orders can also be sought, for example support or services orders.
Upcoming changes for this guidance
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Consult with Legal Services
To help you decide which orders to seek or the requirements for making a particular application, please consult your local Legal Services team.
Te tamaiti or rangatahi can be placed in the custody of the chief executive under the provisions of the Oranga Tamariki Act 1989 by:
- agreement (sections 139 and 140)
- emergency action (sections 39, 40, 42 and 48)
- court order (sections 78, 101, 102, 110(2)(a), 110AA, 238(1)(d), 311 and 345).
Pathways to care: Care agreements
Pathways to care: Emergency actions
When te tamaiti or rangatahi is in the custody of the chief executive, the chief executive is responsible for providing for their day-to-day care. This includes:
- physical care and protection — food, clothing, shelter, oversight and supervision, and day-to-day health including dental care
- emotional and psychological care — promoting a sense of wellbeing, identity and esteem and providing opportunities for links to be maintained with family, whānau, hapū and iwi.
- social and educational care — ensuring attendance at school and completion of homework, providing opportunities for interactions with peers and attendance at age-related social activities, and providing age-appropriate guidance, boundaries and expectations to contribute to the development of healthy values for te tamaiti or rangatahi
- spiritual and cultural development — providing opportunities for participation in cultural or spiritual groups and activities that are in keeping with the expectations of te tamaiti or rangatahi and their caregiver
- contact — making all decisions regarding contact with family and whānau and abiding by any court order about contact.
The goals and objectives for te tamaiti and their whānau or family must be recorded in a section 128 plan for implementation of orders. For tamariki in care, their All About Me plan is the primary plan we work from, and supports any overarching family group conference or court plan.
All About Me plan to meet the needs of tamariki
As part of wider care or protection proceedings (section 78(1))
When an application for care or protection orders is made, the Family Court can make an interim custody order to last the duration of the proceedings. Interim custody is only used to secure the safety and wellbeing of te tamaiti when all other intervention options have been considered. These orders can remain in place until final care or protection orders have been determined.
Without any other proceedings (section 78(1A))
Interim custody can be granted where no other proceedings have commenced for te tamaiti or rangatahi. An interim custody order granted in these situations remains in force for a maximum of 28 days, or as specified by the court.
The decision to make a direct application for an interim custody order under section 78(1A) where there are no other proceedings requires careful consideration and should take into account:
- the immediacy of the safety or wellbeing concern
- the degree to which we have been able to engage with whānau or family to share our concerns and explore alternative options
- the nature of any existing and previous involvement we have or may have had with te tamaiti and their whānau or family and how that connects to the current events causing the concern.
This type of order can be used in situations where we need to ensure the immediate safety of tamariki while we conduct an investigation, but we are unsure whether a longer-term care and protection order will be required — an example is where te tamaiti is admitted to hospital with a non-accidental injury and we need to complete an investigation into the circumstances.
Consult your Legal Services team if you think this type of order may be appropriate.
Policy: Without notice application for interim custody of a tamaiti or rangatahi
Our role as the social worker for te tamaiti
If the chief executive has custody of a tamaiti or rangatahi, this means you have the responsibility for ensuring that their day-to-day care needs are met. Most tamariki in care or custody will also be covered by the National Care Standards.
The role of a guardian is set down clearly in sections 15 and 16 of the Care of Children Act 2004. A guardian is given all the rights, powers and responsibilities to make the major decisions about the upbringing of te tamaiti or rangatahi, such as:
- education — where te tamaiti or rangatahi will attend school, changing schools, after school education
- where te tamaiti or rangatahi will live
- travel — overseas travel and passport applications
- religion (if any) — choice of religion, religious education or religious ceremonies
- health care — consent to major medical, psychological, psychiatric or dental treatment, including blood transfusions, vaccinations, sterilisation
- choice of name — this applies to first name and last name or family name.
In some cases, these rights, powers and responsibilities may be different if there is a court order in place. For example, if te tamaiti is placed in the custody of Oranga Tamariki, the chief executive has the primary legal responsibility for determining where te tamaiti or rangatahi will live. If te tamaiti or rangatahi needs to move to a new location, the chief executive will also be responsible for deciding which school te tamaiti or rangatahi will attend. Wherever possible these decisions should be made together with whānau, hapū and iwi.
The mother of te tamaiti or rangatahi is automatically a natural guardian.
The father will usually be a guardian, unless he meets one of the exceptions in the Care of Children Act 2004.
Child's mother and father — Ministry of Justice
If a father is not a natural guardian, he can apply to be appointed a guardian by the Family Court. The court will do this unless it is against the best interests of te tamaiti or rangatahi.
Te tamaiti or rangatahi can have more than one guardian, and they may include parents and any number of others.
A parent who is a guardian can appoint someone (called a testamentary guardian) to become a guardian if that parent dies or becomes incapable.
Testamentary guardians — Ministry of Justice
The court, under the Oranga Tamariki Act 1989 or the Care of Children Act 2004, can appoint a guardian. This may include the chief executive of Oranga Tamariki.
The chief executive may be appointed as:
- a sole guardian
- an additional guardian
- a guardian for a specific purpose, for example, medical treatment.
Sole and additional guardianship
A sole guardian exercises the rights, powers and duties of a guardian on their own. When a guardian is additional to another, decisions are made together or by consulting the other guardians. Where the guardians are not able to agree on decisions, the matter will need to be decided on by the Family Court.
The court can also appoint a sole or additional guardian for a limited time period.
Interim sole guardianship can be used in situations where te tamaiti or rangatahi is in need of care or protection and there is no other way to meet their immediate needs. This may include where consent is needed for a specialist child interview, medical procedure or change of school, and the guardian is unable to be located, or will not consent. Interim guardianship orders last:
- until the wider care or protection proceedings are determined, with a maximum of 6 months
- for a maximum of 28 days if there are no other proceedings.
Before an interim guardianship order is applied for, make all attempts to contact the guardian and seek their agreement. If the guardian is unable to be contacted and cannot be located, record why it has not been possible.
Our role as the social worker for te tamaiti
If the chief executive is appointed as an additional guardian this means social workers have the ability to be involved in guardianship decisions. It's important to remember that parents and significant others who remain guardians retain the right to be included in decision-making.
Guardianship decisions can be incorporated into case planning, for example if you know te tamaiti is enrolling at school then plan to have the discussion with the natural guardians about which school some time before te tamaiti will start. Review meetings are an ideal place to discuss any guardianship matters and to incorporate them into the All About Me plan.
Ideally all guardians will agree. However there will inevitably be times of disagreement. It is important then to understand the differing opinions and identify the impact on te tamaiti or rangatahi. If the decision is not in their best interests then seek legal advice on ways to resolve any dispute among guardians.
If a guardian can’t be contacted or located, consult with Legal Services.
The Family Court or High Court can be appointed as a guardian of te tamaiti or rangatahi. This is commonly known as a court wardship. The court usually appoints the chief executive of Oranga Tamariki to act as its agent.
Generally, the agent is responsible for overseeing the care and wellbeing of te tamaiti or rangatahi, and carrying out specific roles as directed by the court. The court relies on the agent to monitor and inform it of the circumstances of te tamaiti or rangatahi.
Decision-making remains the prerogative of the court.
On occasion, the court will delegate some decision-making powers to the agent, for example to determine contact arrangements. When no directions or guidance have been given by the court the agent is responsible for actively monitoring and reviewing arrangements. Any change to placement, contact or other arrangements for te tamaiti or rangatahi must be decided by the court.
We need to ensure we undertake the responsibilities of the agent consistently, even if more than one person takes on that role due to staff changes.
Where the Family Court makes an order that te tamaiti or rangatahi is in need of care or protection, it may make a restraining order under section 87 or 88 of the Oranga Tamariki Act 1989.
A restraining order is made against a named person. It works to prevent that person from:
- residing with te tamaiti or rangatahi
- using or threatening violence, or causing or threatening to cause physical harm to te tamaiti or rangatahi
- contacting them in any way, including physical contact
- watching or following them at their place of residence, work or education, or following or waylaying them in any public place
- watching or following anyone who resides with te tamaiti at their place of residence, work or education, or following or waylaying them in any public place.
Restraining orders can remain in place until the rangatahi marries, enters a civil union, or reaches 20 years of age. A restraining order can remain in place even though the other orders have expired or been discharged. The court will sometimes amend or customise the wording of the restraining order.
Interim restraining orders
Interim restraining orders can be made at the start of court proceedings and last the duration of the proceedings. These orders are made under section 88 of the Oranga Tamariki Act 1989.
It is also possible to apply for an interim restraining order before any other proceedings have commenced. These last for a maximum of 28 days and are made under section 88(2) of the Act. Consult your Legal Services team if you think this type of order may be appropriate.
There are times when a tamariki can be safely cared for within their family or whānau with intensive support and oversight for a period of time.
When the care or protection of te tamaiti requires monitoring, and the whānau or family requires assistance to provide safe care, a section 91 support order under the Oranga Tamariki Act 1989 enables formal social work involvement, with a focus on support and monitoring.
Where an application has been made for a care or protection order, interim support orders can be granted under section 92. These last the duration of the care or protection proceedings.
A support order can eliminate the need for a custody order and can be used where guardianship and custody orders have been discharged and a further period of support and oversight is required.
Returning children and young people safely home
Where there is a custody or sole guardianship order for te tamaiti in favour of the chief executive, a support order is not needed.
A support order requires Oranga Tamariki to:
- appoint a social worker to provide support to te tamaiti — this includes the ability to visit and enter the premises where te tamaiti is living at reasonable times
- specify where, and with whom, te tamaiti cannot live
- provide or coordinate the provision of services and resources (including financial)
- monitor the care, protection and guidance (control) provided to, or over, te tamaiti
- provide an effectiveness report to the court at the expiry of the support order which outlines the response by te tamaiti.
The parent or guardian or person with whom te tamaiti is living is required to ensure that the social worker knows the address of te tamaiti.
The court may also:
- direct te tamaiti to attend a particular programme or course, engage in treatment or therapy, not associate with certain people, and undergo a specified medical examination
- impose conditions that reduce the likelihood of further offending
- impose conditions on the parent or guardian or usual caregivers of te rangatahi aged 14 to 16 that assist them to carry out their duties and responsibilities and promote cooperation between all those providing support.
Support orders can be for a period of time up to 12 months, but no longer, for tamariki who are younger than 17 years of age.
Our role as the social worker for te tamaiti
The main purpose of a support order is to provide support and assistance to tamariki and their parents or caregivers. The level of support and assistance provided is determined by the individual strengths, risks and needs of te tamaiti and their whānau or family, and the conditions of the order. This is recorded in the report and plan filed in court.
The social worker for te tamaiti has an obligation to lead the casework and maintain responsibility for monitoring that the needs and wellbeing of te tamaiti or rangatahi are being met — keep this at the forefront of your work at all times.
At all times keep a focus on:
- building and maintaining a relationship with te tamaiti, ensuring that their voice is heard — keeping our focus on te tamaiti provides more information and ideas for strengthening the engagement and participation of te tamaiti
- visiting te tamaiti and their parents/caregivers — visiting is how we ensure te tamaiti is safe and their evolving needs are being met, and allows us to continually assess the wellbeing of te tamaiti and evaluate progress with their plan, and keeps us engaged with te tamaiti and their whānau or family
- working with other professionals and agencies who provide services and support to te tamaiti and their whānau or family — working with professionals provides us with detail about how to encourage and enhance these working relationships
- reviewing and monitoring the implementation of the plan for te tamaiti and reporting to the court — the effectiveness report provides detail to ensure that the court has sufficient information to judge how effective the order has been for te tamaiti.
- As the social worker you have a key role to support te tamaiti and their whānau or family to complete the tasks identified in the plan for te tamaiti, build on their strengths, and keep everyone involved in the plan connected and working together constructively.
- Before recommending or applying for the support order, meet with those involved, including te tamaiti and any agencies already engaged in supporting te tamaiti and their whānau or family. Make sure you invite the school or education provider as well.
- At the meeting, agree how often you will visit, including seeing te tamaiti on their own and at home. You can visit more often if circumstances change or at random times – whichever you consider appropriate. Think about the needs and strengths of te tamaiti and how your visits and engagement can assist to meet these.
- If you are worried about te tamaiti having contact with someone who is a danger to them, discuss this with the whānau or family and come to an agreement about how they will keep te tamaiti safe.
- Consider the roles of the agencies involved and how everyone (te tamaiti, parents/caregivers, whānau or family, and other involved people) will know that progress is being made.
- Remember, the plan for te tamaiti will be reviewed every 3 months in line with policy so think about the best way to bring everyone together to share information and celebrate progress.
Role of the lawyer for child
In any care or protection proceedings, a lawyer will be appointed to represent te tamaiti. The lawyer for child’s role includes advocating for the interests and wellbeing of te tamaiti, and representing their wishes.
The lawyer for child is appointed from a pool of senior solicitors experienced in the Family Court and their appointment must be approved by a Family Court judge.
The lawyer for child's views on what is in the best interests of te tamaiti may not always coincide with that of the social worker. They have an independent role and obligations to support te tamaiti to have their views expressed and to participate in decisions made about them.
A good working relationship between the social worker and the lawyer for child is important for good case management.
Involving a lawyer for child in the child and family consult may help to give them a fuller picture of the concerns held by Oranga Tamariki and understand the rationale behind the social worker's assessment of te tamaiti. Social workers should consult with the lawyer for child regularly and advise them when there is a change in the circumstances of te tamaiti or a significant decision to be made about their wellbeing.