Policy
Subsequent child
This policy advises what we must do when we become aware that the subsequent child provisions of the Oranga Tamariki Act 1989 (sections 18A to 18D) may apply to a parent and their tamaiti.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
What steps am I taking to uphold the right of this tamaiti to be cared for within their whānau or family? How will I balance this with their right to be safe and have their oranga realised and sustained?
Ngākau whakairo practice framework domain
Whai mātauranga
Whose knowledge sources can I draw on to understand the historical context impacting this whānau or family? What do the narratives of the whānau or family tell me about trauma and resilience, past and current?
Whai mātauranga practice framework domain
Whai oranga
How do I understand the structure, beliefs and practices of this whānau or family? How are protective factors enacted within this whānau or family? Am I recognising and understanding these fully?
Whai oranga practice framework domain
Whai pūkenga
How do I practise restoratively? How do I apply an oranga-framed critical analysis of the circumstances? What relational skills and behaviours do I use to facilitate tamariki and rangatahi and their whānau and family to determine their oranga?
Whai pūkenga practice framework domain
Whai ākona
As we work to build a shared understanding, how will I recognise if past trauma is resurfacing for the parent and their whānau or family? What do we need to have in place to support them if this occurs?
Working with Māori
For quality assessments that are effective when working with Māori, we must have regard to mana tamaiti (tamariki) and the whakapapa of Māori tamariki and rangatahi and the whanaungatanga responsibilities of their whānau, hapū and iwi.
As part of a suite of Māori practice resources, Te Toka Tūmoana and the Māori cultural framework support our assessment.
We should:
- access the suite of Māori practice frameworks, models, tools and guidance (as linked below) to support quality practice with tamariki and whānau Māori
- use Te Toka Tūmoana alongside existing practice guidance and tools to support decision-making for tamariki Māori and advance the objectives of mana tamaiti.
We must evidence this in our records.
Working with Pacific peoples – Va'aifetū
Va'aifetū supports quality practice with Pacific children and helps us to work effectively with children and families of the different Pacific nations.
We should use Va'aifetū alongside existing practice guidance and tools to develop quality assessments for Pacific children. We must evidence this in our records and ensure that we apply the Va'aifetū practice considerations relevant to each child’s Pacific nation of origin.
When this policy applies
This policy applies when:
- we become aware that a parent may meet the section 18B criteria in the Oranga Tamariki Act 1989 and
- that parent has, or is going to have, the day-to-day care of a tamaiti aged under 14 years (a subsequent child) – even if they turn 14 years old partway through the process.
Parent means a mother, father or step-parent, but only if the step-parent and parent share the day-to-day care responsibilities of te tamaiti. It doesn’t include near relatives or those with custody or parenting orders.
A section 18A assessment of a parent of a subsequent child is not required for the parent of a young person aged 14 to 18 years.
We might become aware that a parent may meet the section 18B criteria in several ways, including but not limited to:
- a report of concern (at the time of notification or during our assessment or investigation)
- advice from the whānau or family, a member of the public or a professional working with te tamaiti and their whānau or family
- notification from the Ministry of Justice or Police.
If a report of concern is made about concerns for te tamaiti, other than those relating to the subsequent child provisions, we also need to follow the usual intake and assessment process. This means 2 assessment pathways will be followed concurrently:
- the child and family assessment or investigation under section 17 and
- the section 18A assessment of a parent of subsequent child (section 18A assessment), following confirmation that the parent meets the section 18B criteria.
If we are completing 2 assessments concurrently, we must:
- consult with a supervisor, practice leader and solicitor as appropriate, particularly where the processes for the 2 assessments may overlap – for example, if each process requires a family group conference or court applications
- explain clearly to te tamaiti, their parent, and wider family or whānau, the purpose of each assessment and the process that we will follow
- coordinate our assessments to minimise the impact on te tamaiti, their parent, and the wider family or whānau.
Section 18B criteria
A parent will only be assessed under section 18A if they satisfy all the requirements contained in section 18A(1). One of these requirements is that the parent meets the criteria in section 18B.
A person meets the section 18B criteria if they have been convicted under the Crimes Act 1961 of the murder, manslaughter, or infanticide of a child or young person who was in the person’s care or custody at the time of the child’s or young person’s death.
To confirm that a parent meets the section 18B criteria, the social worker and their supervisor must consult with the site solicitor. Your site solicitor can assist with this. We may also need to gather additional information, for example details of the day-to-day care arrangements, to inform this decision.
If it is established that a parent meets the section 18B criteria and has, or is going to have, day-to-day care of a subsequent child, we must complete a section 18A assessment.
If a section 17 investigation or a section 18A assessment of a previous subsequent child has found no care or protection concerns, a section 18A assessment is not required – see sections 18A(1) and 18A(7). If we think this may apply, we consult with our site solicitor.
Purpose of a section 18A assessment
A section 18A assessment has a very specific scope. Its purpose is to assess whether the parent is unlikely to inflict, or allow to be inflicted, on the subsequent child the kind of harm inflicted on a previous tamaiti or rangatahi.
Requirements of the section 18A assessment
The section 18A assessment will build on the information that established that a parent meets the section 18B criteria. We must be clear about the specific harm inflicted on the previous tamaiti or rangatahi and the context and circumstances at the time of that harm. This provides the focus for the key areas that the section 18A assessment needs to explore so that we can assess if this harm is unlikely to occur again.
The assessment must identify the current circumstances, strengths and protective factors of the immediate and wider family, whānau, hapū, iwi and family group.
In the context of the specific harm inflicted on the previous tamaiti or rangatahi and the circumstances in which that harm occurred, the assessment must consider the potential, strengths, resilience and areas of positive change for the parent and the whānau or family and provide opportunities to demonstrate these.
Before starting the assessment, we must inform the parent that we are required to do the assessment under the Oranga Tamariki Act 1989. We must encourage them to get independent legal advice from a lawyer.
As the assessment progresses, we must share the assessment with te tamaiti, the parent, significant members involved from their family, whānau, hapū, iwi and family group, and significant others so we can test our analysis and provide them with an opportunity to respond to specific concerns or gaps in our information or understanding.
The section 18A assessment must include:
- a hui ā-whānau or family meeting
- use of the Tuituia assessment framework and tools
- a child/young person and family consult.
At the end of the assessment, we need to answer the question of whether the parent is unlikely to inflict, or allow to be inflicted, the kind of the harm the parent inflicted, or allowed to be inflicted, on a previous tamaiti or rangatahi.
Our final assessment and the type of application being made to the court must be shared with the parent and te tamaiti, if appropriate. With their agreement and as they consider appropriate, the assessment will be shared with their support network before making the application to the court.
Trauma
We must recognise the specific trauma that has been experienced by this parent and the whānau or family because of the loss of a previous tamaiti or rangatahi and demonstrate this in our practice.
Supporting the parent to demonstrate that the same harm is unlikely
We must assist the parent to understand what the subsequent child provisions mean for them and what we are required to do.
We must explain that our section 18A assessment will only focus on whether the parent is unlikely to inflict, or allow to be inflicted, on the subsequent child the kind of harm inflicted on a previous tamaiti or rangatahi.
We must also explain that although it’s the parent’s responsibility to demonstrate that they are unlikely to inflict, or allow to be inflicted, on the subsequent child the kind of harm inflicted on a previous tamaiti or rangatahi, we will work with them and support them to do this.
We must encourage and assist, as required, the parent and the whānau or family to identify significant people who could assist through contributing to the assessment and participating in the hui ā-whānau or family meeting, including:
- family, whānau, hapū, iwi or family group members
- others with a close connection to them, such as friends, professionals, community supports or churches.
We must consult with those whose information we are considering sharing as a part of our assessment.
We must consider accessing the support of a kairaranga ā-whānau (where available), a senior Māori practitioner or a Pacific or other cultural advisor appropriate to the background of te tamaiti to identify and engage with the family, whānau, hapū, iwi or family group and other significant people.
Hui ā-whānau or family meetings
A hui ā-whānau or family meeting must be held as a part of our section 18A assessment.
In the hui ā-whānau or family meeting, we must:
- explain the subsequent child provisions, what they mean for the parent and what we are required to do
- explain that our assessment will only focus on whether the parent is unlikely to inflict, or allow to be inflicted, on the subsequent child the kind of harm inflicted on a previous tamaiti or rangatahi
- ensure that the information about previous harm is shared with sensitivity and respect, acknowledging that this may be distressing for participants
- share sufficient relevant information about the harm that was inflicted, or allowed to be inflicted, on a previous tamaiti or rangatahi to provide the context for meaningful discussion
- provide participants the opportunity to share relevant information, their views about the needs of te tamaiti and the strengths and risks that sit alongside these
- ask participants to consider the context and circumstances of the previous harm and to share their observations and insights about how these have changed
- encourage participants to think broadly about positive change over time, including ways in which risks may have reduced as well as how areas of strength and resilience have grown, and how these can be demonstrated to the court.
Tuituia
We must use the Tuituia assessment framework and tools in our section 18A assessment to help ensure we can adequately answer the question of whether the parent is unlikely to inflict, or allow to be inflicted, the same kind of harm that was inflicted on a previous tamaiti or rangatahi.
Relevant information from the Tuituia assessment is to be used in the court application.
The 'subsequent child – section 18A assessment by a social worker' guidance has additional information specifically to support the use of Tuituia for a section 18A assessment.
Child/young person and family consult
At the end of the section 18A assessment, a child/young person and family consult must take place that includes, at a minimum, the social worker, their supervisor, the practice leader, the kairaranga ā-whānau and/or other cultural advisor who has been supporting the assessment and the site solicitor. Consider involving other practitioners or professionals who can bring a new perspective to the consult.
The purpose of the consult is to consider the question of whether the parent is unlikely to inflict, or allow to be inflicted, the kind of the harm the parent inflicted, or allowed to be inflicted, on a previous tamaiti or rangatahi.
The discussion will be informed by the information gathered in the assessment, including the hui ā-whānau or family group meeting, and your analysis.
The consult will assist in determining the type of court application to be made. If there is any disagreement about the application to be made, this should be discussed with the site manager for a final decision.
Court applications following a section 18A assessment
At the completion of a section 18A assessment of a parent, we must make one of the two following court applications:
- section 18A application to confirm that te tamaiti is in need of care or protection on the grounds contained in section 14(1)(c)
- section 18C application for confirmation of decision not to apply for a care or protection order.
The subsequent child provisions require a court application to be made even if the social worker believes the subsequent child is unlikely to experience the kind of harm inflicted on a previous tamaiti or rangatahi.
The affidavit to accompany the application to the court will confirm:
- that the parent meets the definition of ‘parent’ as defined in the Act, and they have, or are likely to have, care or custody of te tamaiti
- how the parent meets the criteria for section 18B and
- the specific kind of harm that was inflicted, or allowed to be inflicted, on a previous tamaiti or rangatahi
- whether the social worker considers the parent is unlikely to inflict, or allow to be inflicted, the kind of the harm the parent inflicted, or allowed to be inflicted, on a previous tamaiti or rangatahi.
The section 18A report to the court that will accompany the application will include the social work assessment information in support of the type of application made.
Making an application to the court
Social workers need to open a court record and:
- enter the application sought
- if making a section 18A application for care or protection order, enter the order sought
- complete a report to the court (refer below)
- complete the court application, affidavit and other documents with input from the site solicitor
- file and serve court documents as usual
- attend the court hearing in person.
Section 18A report to the court
Use the section 18A Assessment by Social Worker template on CYRAS to complete the report.
Include all relevant information in the assessment summary, including:
- the section 18A specific information and analysis from the Tuituia assessment
- the views of the subsequent child and any other tamariki spoken with for the assessment
- information and evidence provided by the parent
- supporting information and evidence provided by family, whānau, hapū, iwi and the family group
- supporting information and evidence provided by professionals and others with a close connection to te tamaiti and/or their parent.
Do not provide the court with the whole Tuituia assessment. Only include information that is relevant to your section 18A assessment.
Adjourn for further information
After considering the application, the court may adjourn the hearing and:
- require the social worker to provide further information or ask the social worker to reconsider all or any aspect of the assessment and report to court
- set the timeframe for a response.
The social worker will consult with the site solicitor to ensure any further information meets the court’s requirement.
Outcomes of the court applications
A section 18A application for care or protection order could result in:
- New — care or protection order
- Declined — section 18A application for care or protection order or
- Dismissed — section 18A application for care or protection order.
A section 18C application for confirmation could result in:
- Confirm — section 18C application for confirmation
- Declines to confirm — section 18C application for confirmation. This becomes a section 18A application for a care or protection order
- Dismissed — section 18C application for confirmation.
The section 18A application for a care or protection order currently shows in CYRAS as section 18A App for declaration.
Family group conferences for a subsequent child
A family group conference is not required to be held before an application for a care or protection order for a subsequent child is made to the court, but a family group conference must be held before a care or protection order (other than an interim order) is made by the court.
The 2 times when a care and protection family group conference will be held for a subsequent child are:
- when the court has received a section 18A application for a care and protection order and is considering making a care and protection order on the ground contained in section 14(1)(c)
- when the court declines to confirm a section 18C application for confirmation and treats it as an application for a care or protection order.
A family group conference held for a subsequent child must follow the usual processes for convening and holding a care and/or protection family group conference.
Family group conferences for care and/or protection concerns
The family group conference written record, along with any accompanying information required by the court, will be filed and served and the application for a care or protection order will proceed in court as usual.
Family group conferences following a section 18A application for care or protection order
When the court agrees that a care or protection order is required following a section 18A application for a care and protection order, a family group conference must be held.
The court will make a referral for a family group conference. The section 18A application to the court, the affidavit and the social work section 18A assessment report will form the basis of the referral for the family group conference.
Family group conference following an application for confirmation being declined
When the court declines an application for confirmation of the decision not to apply for a care or protection order, the application is treated as an application for a care or protection order made by the Oranga Tamariki chief executive and a family group conference must be held.
The court will provide written reasons for declining the application and these will be treated as the basis for the court’s referral for the family group conference.
Other care or protection concerns
The court can decline an application for a care or protection order if it is not satisfied that the parent is unlikely to inflict, or allow to be inflicted, on the subsequent child the kind of harm that was inflicted on the previous tamaiti or rangatahi.
We must use the child/young person and family consult to assist with decision-making about what, if any, further action needs to be taken in response to the concerns that led us to making the section 18A application. Any additional involvement with te tamaiti and their whānau or family must follow our usual processes. If no further action is to be taken, the intervention will be closed.
If other care or protection concerns are identified through our section 18A assessment, a report of concern will need to be made and our usual processes followed.
Recording
The court outcomes that need to be recorded include:
- section 18A app for care or protection order (New)
- care or protection order that has been made following a successful section 18A application
- section 18C application (app) for confirmation (New if confirmed)
- section 18A application (app) for care or protection order (Declined)
- section 18C application (app) for confirmation (Declined) – this is then treated as an application for a care or protection order
- section18A app for care or protection order (Dismissed)
- section 18C app for confirmation (Dismissed)
The section 18A application for a care or protection order currently shows in CYRAS as section 18A App for declaration.
The court record will need to remain open while the matter is put on hold as the care or protection order cannot be made until a family group conference has been held.
Following a family group conference, the court’s decision will then be entered as a court result in the record, as either a ‘New – care or protection order’ or, if the court is satisfied that the parent has demonstrated that they are unlikely to inflict, or allow to be inflicted, on the subsequent child the kind of harm inflicted on a previous tamaiti or rangatahi, or the family group conference plan addresses the care or protection concerns, a ‘Declined – section18A application for care or protection order’.
New – section 18A application for a care or protection order/care or protection order made
Where the court agrees that a care or protection order is required, ‘New’ is selected as the order granted. The new court order made is then entered in the court result fields in CYRAS in the usual way.
New — section 18C application for confirmation
Where the court is satisfied with the application for confirmation of the decision not to apply for a care or protection order, they are agreeing that the parent is unlikely to inflict the kind of harm on the subsequent child that was inflicted or allowed to be inflicted on a previous tamaiti or rangatahi.
‘New’ is selected as the court result and ‘section 18C app for confirmation’ is entered as the order granted. The discharge date will automatically populate when the start date is entered. This will display in the legal status field in the CYRAS record for te tamaiti.
Declined — section 18A application for care or protection order
Where the court ‘disagrees’ with the application for a care or protection order, the court record will record that the court declined the application. ‘Declined’ is selected as the court result.
A ‘section18A application for a care or protection order’ is selected in the Orders Granted column. This is to enable reporting of court results and will not display in other parts of CYRAS as an order granted. A discharge date will automatically be generated when the start date is entered. This court record will then be closed.
Declines to confirm — section 18C application for confirmation
When the court ‘is not satisfied’ that the parent has demonstrated that they are unlikely to inflict, or allow to be inflicted, the kind of harm on the subsequent child that was inflicted or allowed to be inflicted on a previous tamaiti or rangatahi, then the application for confirmation is declined. The decline is automatically treated as an application for a care or protection order. The court will provide written reasons for its decision.
‘Declined’ is selected as the court result for this application. In the court preparation field, the ‘miscellaneous’ order sought is used to generate any further court document templates required.
Dismissed – section 18A application for care or protection order and section 18C application for confirmation
The court may ‘dismiss’ either type of application because the criteria in section 18A(1) are not met. In these cases, the subsequent child provisions in the Act no longer apply.
‘Dismissed’ is entered as the court result, with the corresponding application identified in the Order Granted column. This provides the ability to report on the outcomes of subsequent child application but will not display in other legal status fields in CYRAS. The discharge date will automatically populate when the start date is entered. This court record will be closed.
Where the court finds that the parent doesn’t meet the section 18B criteria, it must be recorded in a casenote in their record (under Court outcome casenote) that the section 18B criteria were not met and the reasons for it.