Who this policy applies to
This policy applies to all staff preparing or filing care or protection applications, court plans and reports in the Family Court.
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 family/whānau members. The Family Court has the power to make its own decisions and doesn’t just ‘rubber stamp’ family/whānau 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 enhances our reputation of delivering quality service and support as required under the Oranga Tamariki Act 1989.
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.
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.
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 family/whānau to understand the steps the adults must take. A court plan must be clear and outcomes-focused, and involve te tamaiti and the family/whānau as much as possible.
When a court plan is needed
A plan is required if the Family Court is proposing making a:
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 a child or young person.
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. 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, Measureable, 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 that the plan is trying to achieve
The services and assistance to be provided to te tamaiti and their family/whānau 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, 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 and wishes to have te tamaiti returned to their care, including detail on the behavioural changes that person must make and the steps they must take before te tamaiti 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 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 returned to their care but still wish to have contact.
Remember to include the voice of te tamaiti at all times to ensure that plans incorporate their views wherever possible.
Te tamaiti has a right to freely express their views and participate in the preparation and review of their plans. 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 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 will return home. Where this is the case, the plan should set out the long-term needs of te tamaiti and proposals for how those needs will be met.
Legal review of documentation
Legal services must review the plan and social worker’s report if:
the plan relates to subsequent children
the plan addresses the needs of rangatahi aged 15 and over who are transitioning to independence
there has been a placement breakdown for te tamaiti in a permanent placement but before orders have been made in favour of the caregivers (such as a special guardianship order or a parenting order)
there has been a shift from ‘return home’ to ‘no realistic possibility of return home’, or vice versa
the case is contentious, 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 legal services. 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, including lawyers and lay advocates
parent and guardians who usually have the care of te tamaiti
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 well-being, of te tamaiti or another person (section 133).
If you think the plan should be shared with people who are not listed in s132, consult with your regional solicitor about gaining the Courts permission.
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 within 6 months if te tamaiti is under the age of 7 years, or within 12 months if te tamaiti is aged 7 or over.
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, their parents, guardians and/or caregivers, any relevant whānau 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 filed in the Family Court.
Depending on the nature of the plan it may need to be reviewed by legal services.
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, the counsel for child and the parents or guardians.
The social worker must ensure that copies of the plan are given to entitled people at least 5 working days before the Court hearing
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.
Recording Family Court outcomes
We must ensure that the Court record for te tamaiti is accurate and any Court outcomes are recorded in CYRAS in a timely manner.
Details of te tamaiti, 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 s131 or 132 of the Care of Children Act or s65 and s66 of the Family Violence Act 2010.
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 person appointed consents to the appointment, performs the functions of a litigation guardian and is unlikely to have any conflicts of interest with the minor.
The Family Courts 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.
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.