Updates made to this policy
The Family Court policy now includes a section covering the requirements of section 135 review of plan reports. This includes the need for us to make sure we present all relevant information to the Family Court at the time of review and provide a balanced account of what has happened for te tamaiti or rangatahi over the review period. The policy outlines when Legal Services must review court plans and reports prior to filing.
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.
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.
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.