Policy
Family Court
We must present and conduct ourselves in a professional and respectful manner when engaging with the Family Court. We must prepare and file clear and outcomes-focused protection applications, court plans and reports.Practice framework prompts for this policy
Our practice framework helps us make sense of and organise our practice so it is framed in te Tiriti o Waitangi (the Treaty of Waitangi), and draws from te ao Māori principles of oranga, within the context of our role in statutory child protection and youth justice in Aotearoa New Zealand.
Ngākau whakairo
Have I worked collaboratively with the family, whānau, hapū and iwi to make sure we have done everything possible to secure the safety and wellbeing of te tamaiti or rangatahi within their whānau or family before applying to the Family Court?
Ngākau whakairo practice framework domain
Whai mātauranga
How can I make sure my affidavit to the Family Court reflects a shared understanding of oranga (wellbeing) and includes information (both strengths and concerns) from all available sources?
Whai mātauranga practice framework domain
Whai oranga
How do I make sure that I fairly represent the views and wishes of tamariki and rangatahi and their family, whānau, hapū and iwi in my affidavits and court reports even when they disagree that an application to the Family Court is in the best interests of te tamaiti or rangatahi?
Whai oranga practice framework domain
Whai pūkenga
What specific skills and behaviours will I use with both te tamaiti or rangatahi and their whānau or family to make sure they understand the Family Court process, and know how to access legal representation, advocacy and support?
Whai pūkenga practice framework domain
Whai ākona
What barriers do tamariki, rangatahi and whānau or family face in the Family Court process? How can my own experiences help me best support them to navigate these?
When this policy applies
This policy applies whenever we engage with the Family Court — preparing or filing care or protection applications, court plans and reports.
What the Family Court does
Care or protection proceedings are principally dealt with by the Family Court under the Oranga Tamariki Act 1989. The philosophy behind the Family Court is to help people to resolve their own problems through counselling, conciliation and mediation.
This is consistent with the purposes and principles of the Oranga Tamariki Act 1989 with its emphasis on participation in decision-making by whānau or family members. The Family Court has the power to make its own decisions.
This means the court may override the decisions of a family group conference. In doing this the court would need to be seriously concerned that the family group conference plan would not keep te tamaiti or rangatahi safe.
Engaging with the Family Court
Social workers must present and conduct themselves in a professional and respectful manner whenever they are engaging with the Family Court.
This should be done by writing accurate, informative, clear and concise affidavits, reports and plans and by responding in a timely manner to directions and referrals made by the Family Court and others engaged in the court process. It also means dressing appropriately when attending court, being punctual and demonstrating respectful communication when addressing the court.
Court process
Care agreement instead of custody order
If te tamaiti or rangatahi is unable to remain at home but the plan is for them to return after a period in care, consideration must first be given to using a care agreement section 139 or section 140(a)–(c) under the Oranga Tamariki Act 1989, rather than making an application to the court to make a custody order.
If a rangatahi aged 15 years or more is unable to remain at home but is able to be assisted to achieve independence, consideration must first be given to using a care agreement section 140(d) under the Oranga Tamariki Act 1989, rather than making an application for the court to make a custody order.
Process for getting a custody order
A social worker can apply to the Family Court if issues of care and safety for a tamaiti or rangatahi can’t be resolved through a family group conference or other intervention.
The court process begins (unless there has been emergency action) with an application under section 68 for the court to make a care or protection order. There may be circumstances when an urgent order is required before the main proceedings are commenced. If you think those urgent circumstances apply you should consult with your local Legal Services team.
Usually, a social worker or the Police make the application but anybody can apply for a care or protection order if they get the court’s permission.
Ensure that the correct court templates in CYRAS are used when preparing applications for orders, plans or reports to the court. Details of te tamaiti, their family and whānau must be accurately recorded in both CYRAS and court documents. If you require assistance with the preparation of court documents please consult with your local Legal Services team.
A court will normally only make a final care or protection order once it has considered the decisions of the family group conference and believes that the need of te tamaiti or rangatahi for care or protection cannot be met by other means. The court can make interim orders in other circumstances and the judge may also refer the matter back to a family group conference.
Policy: Without notice application for interim custody of a tamaiti or rangatahi
Court plans
When the court makes a care or protection order it is important to have a court plan that addresses the needs of te tamaiti or rangatahi and helps the whānau or family to understand the steps the adults must take. A court plan must be clear and outcomes-focused, and involve te tamaiti and the whānau or family as much as possible.
When a court plan is needed
A plan is required if the Family Court is proposing making a:
- services order
- support order
- custody order
- sole guardianship order
- special guardianship order.
Filing requirements for court plans
The plan must be filed at least 10 working days before the date set for the court hearing to determine whether the care and protection order should be made.
This 10 working day requirement also applies where the court adjourns proceedings under section 131 so a plan can be obtained.
The filing requirements are designed to support timely planning and preparation, ensuring all parties have the opportunity to consider the plan prior to it being put to the court. This should help with reducing delays in being able to reach decisions for te tamaiti or rangatahi.
Content requirements for court plans
The court will decide whether the plan is adequate to address the need for care or protection.
The plan must focus on the outcomes sought for te tamaiti or rangatahi. For each outcome identified, the plan should:
- outline the changes required, actions, responsibilities and timeframes to complete
- detail outcomes-based behavioural changes
- demonstrate what success will look like.
The plan should use the SMART planning methodology to ensure that all of the goals and objectives in the plan are Specific, Measurable, Achievable, Relevant and Timeframed.
Section 130 of the Oranga Tamariki Act 1989 sets out specific requirements for court plans. The plan must contain the:
- outcomes for te tamaiti or rangatahi that the plan is trying to achieve
- the services and assistance to be provided to te tamaiti and their whānau or family or other caregiver and the persons or organisations who will provide such services and assistance
- tasks, responsibilities and timeframes agreed to in order to achieve the agreed outcomes
- responsibilities and personal objectives of te tamaiti or rangatahi, as well as the responsibilities and personal objectives of any parent, guardian or caregiver involved in the plan
- responsibilities of any parent, guardian or other person who previously had care of te tamaiti or rangatahi and wishes to have te tamaiti or rangatahi returned to their care, including detail on the behavioural changes that person must make and the steps they must take before te tamaiti or rangatahi can return to their care
- timeframes for completing the specific tasks and behavioural changes, and the timeframe for any decision about whether or not te tamaiti or rangatahi will be returned to the care of any parent, guardian or caregiver.
These are the minimum statutory requirements and good plans may include a number of other things such as arrangements for parents who are not seeking to have te tamaiti or rangatahi returned to their care but still wish to have contact.
Te tamaiti or rangatahi has a right to freely express their views and participate in the preparation and review of their plans. Remember to include the voice of te tamaiti or rangatahi at all times to ensure that plans incorporate their views wherever possible. Their views must be taken into account. Where it is not possible to give effect to their views, the reasons for this must be made clear to te tamaiti or rangatahi and the reasons for the decision recorded.
Section 29A of the Oranga Tamariki Act requires that family group conference plans must fulfil the same section 130 content requirements as court plans. The court can treat the family group conference record of decisions as the court plan without the need for the social worker to recreate a plan for the purpose of the court proceedings so long as the conference plan complies with the requirements in section 130.
In some cases, the social worker will still need to prepare a formal court plan because the family group conference record may not be sufficiently detailed or the circumstances may have changed in some way. Any Court plan prepared by the social worker should be closely based on any agreements and decisions made by the family group conference.
If the plan filed (whether it is the family group conference plan or the plan prepared by the social worker) does not comply with the section 130 requirements the Family Court judge will indicate that the plan is not adequate and will require the social worker to provide a revised plan.
The Family Court judge will only accept the plan if it contains the matters outlined above. The exception is where there is no realistic possibility that te tamaiti or rangatahi will return home. Where this is the case, the plan should set out the long-term needs of te tamaiti or rangatahi and proposals for how those needs will be met.
Monitoring and reviewing the plan
The social worker should proactively monitor the plan and record progress against the plan.
A court plan must be reviewed and a review of plan report provided to the court. This must occur within 6 months if te tamaiti is under the age of 7 years, or within 12 months if te tamaiti or rangatahi is aged 7 or over.
Section 135 of the Oranga Tamariki Act 1989 sets out specific requirements for review of plan reports. The report must state:
- which plan objectives have been achieved and which have not
- the actions required to meet any objectives that have not yet been achieved
- whether the order in force and any conditions attached to the order should be continued, varied, suspended or discharged
- whether any other order should be made and the reasons why
- whether those who are required to be given a copy of the plan agree or disagree with our recommendations
- whether there is a realistic possibility that te tamaiti or rangatahi can be returned to the care of their parent or previous caregivers.
As well as the above, it is important that we provide a comprehensive, balanced and accurate summary of any significant events that have occurred over the review period in the review of plan report. For example, if there has been a change in the living arrangements of te tamaiti or rangatahi, we must outline any known risks, how these will be addressed and how the change will improve the outcomes for te tamaiti or rangatahi. It is our responsibility to make sure the court is fully informed in their decision to approve the plan and make decisions regarding care or protection orders.
The Family Court will set a date for the court to review the plan at the time that court orders are made. The court date indicates when the review must be ready for consideration by the court.
The following outlines the process that must be followed when completing a review:
12 weeks before the court date for review
The social worker needs to determine how the plan should be reviewed and whether they should make a referral to reconvene the family group conference. They should discuss and agree this decision with their supervisor.
The social worker starts by reviewing and updating their social work assessment and completing a Tuituia report, which is then approved by their supervisor. The social worker is assessing what changes have occurred and what progress has been made from the previous plan.
8 to 10 weeks before the court date
The review meeting or family group conference should occur.
If the social worker has decided that a family group conference is not required, the social worker will hold a review meeting, inviting key participants. This should include te tamaiti or rangatahi, their parents, guardians and/or caregivers, any relevant whānau or family members, the counsel for child, and any other relevant participants. At the meeting, the social worker facilitates the review of the previous plan and discusses their updated assessment.
If the social worker has made a referral to convene a family group conference for the purpose of the review, the coordinator will convene the conference. The same timeframes apply so that the plan can be prepared and filed in time for the court date.
4 weeks before the court date
The revised plan (if required) and report should be provided to the Family Court.
The social worker provides the court with the names of the people they think should receive a copy of the plan. This will include te tamaiti or rangatahi, the counsel for child and the parents or guardians.
Access to plans — section 132 of Oranga Tamariki Act 1989
The court ensures that copies of the plan are given to entitled people at least 5 working days before the court hearing.
In some regions the social worker may assist the Court with the distribution of copies of the court plan. Consult your supervisor or Legal Services team to discuss how copies are distributed in your region.
Whichever path is selected for the review, te tamaiti or rangatahi must be encouraged and assisted to participate and express their views. Their views must be taken into account.
Legal review of documentation
Legal Services must review the plan and social worker’s report if:
- the plan relates to a subsequent child
- the plan addresses the needs of rangatahi aged 15 and over who are transitioning to independence
- there has been a breakdown for te tamaiti or rangatahi in a living arrangement that was intended to be a permanent care arrangement
- there has been a change in the permanent care goal
- the case is complex or high profile
- there is no consent or there is likely to be a defended hearing.
In other circumstances it is at the social worker’s discretion whether to review the plan with the Legal Services team. The social worker should consult with their supervisor throughout this process.
Court to provide copies of court plans to relevant people
Copies of court plans will be provided by the court to specified people at least 5 working days before the court sitting date. These specified people are listed in section 132 and include:
- those entitled to appear and be heard in the hearing, including their lawyers
- representatives for te tamaiti or rangatahi, including lawyers and lay advocates
- parent, guardians and the caregivers who usually have the care of te tamaiti or rangatahi
- Oranga Tamariki staff
- anyone else who the court considers has a proper interest in receiving a copy of the plan.
The court can choose to not disclose the plan to certain people if the disclosure would be detrimental to the physical or mental health, or the emotional wellbeing, of te tamaiti or rangatahi or another person (section 133).
If you think the plan should be shared with people who are not listed in section 132, consult with your regional solicitor about gaining the permission of the Family Court.
Guidance
Recording Family Court outcomes
We must ensure that the court record for te tamaiti or rangatahi is accurate and any court outcomes are recorded in CYRAS in a timely manner.
Details of te tamaiti or rangatahi and their family and whānau must be accurately recorded in both CYRAS and court documents.
We must also take care to accurately record directions given by the court. Make arrangements to obtain a copy of court orders promptly after hearings and check that any orders accurately reflect the directions given. Any inconsistencies need to be identified and rectified quickly.
Legal status must be clearly recorded in CYRAS, along with the supporting documentation.
Reports to the court
The court can request reports from Oranga Tamariki under section 131 or 132 of the Care of Children Act or section 65 and 66 of the Family Violence Act 2018.
We must ensure that all reports are provided in the timely manner and in accordance with the brief set by the court.
Minors taking part in Family Court proceedings
Unless the court orders otherwise, a parent under the age of 18 years can only take part in Family Court proceedings with a litigation guardian. A litigation guardian is an adult authorised to direct the proceedings on the minor's behalf and is appointed by the court.
The Family Court Rules 2002 state that:
- a minor is a person under 18 years
- a minor can apply to take part in the proceedings without a litigation guardian if they are not prohibited by any enactment and are capable of making the decisions required or likely to be required and no reason exists that would make it in the interests of the minor to be represented.
The person appointed as a litigation guardian must consent to the appointment, be willing to perform the functions of a litigation guardian and be unlikely to have any conflicts of interest with the minor.
If a litigation guardian is to be appointed, this can occur by the court of its own motion or upon interlocutory application (with or without notice).
In any case involving parents under the age of 18 years consult with Legal Services at an early stage.