Without notice application for interim custody of a tamaiti or rangatahi

Ngākau whakairo

Before making a without notice application for interim custody, have I made sure that whānau or family have had extensive opportunities to draw on their right to full participation in decision-making? In situations where an application has been made, have I spent time explaining to whānau or family the reasons for the application without notice?

Ngākau whakairo practice framework domain

Whai mātauranga

What are the narratives and knowledge of the whānau or family telling me about their history? For whānau Māori, how do I understand the effect that history and intergenerational trauma stemming from colonisation has had on their lives and how this is reflected in the present situation?

Whai mātauranga practice framework domain

Whai oranga

How do I understand this whānau or family structure, beliefs and practices? Am I recognising the protective factors within this whānau or family? Have I understood these fully?

Whai oranga practice framework domain

Whai pūkenga

What relational skills and behaviours will be important for me to use to maintain a respectful, restorative and mana-enhancing relationship with the whānau or family?

Whai pūkenga practice framework domain

Whai ākona

What do I learn as I reflect on the decisions that led to me considering statutory actions? What assumptions influence me and how am I using supervision to critically reflect on these?

Whai ākona practice framework domain

On notice

Most applications will be filed on notice (also called 'with notice'). This means the application is served on the respondents and they have up to 7 days to file a notice of intention to appear. A notice of intention to appear means the respondents wish to be heard by the court to express their views on the application.

If a notice of intention to appear is filed, the court will consider both the application and the notice of intention to appear before deciding whether to grant the order or not.

In urgent cases, an application can be filed to reduce the time the respondents have to file a notice of intention to appear. This means the respondents will have a limited opportunity (between 1 and 3 days) to reply to the application.

Without notice

When an application is filed without notice, the respondents are not informed about the application before it is considered by the court.

If the court agrees with the application, it usually grants the order the same day. In some cases, the court may request a 'Pickwick hearing'. This is a short hearing that the applicant and respondents both attend to provide evidence before the court decides whether to grant the order or not.

If these risks can be mitigated by giving the respondents a short amount of time to file a notice of intention to appear, we must file the application on notice. An application to reduce the time for filing a notice of intention to appear can be made at the same time.

If this will not mitigate the risks, we consider whether we should make a without notice application for interim custody. We must 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, explore alternative options and build safety
• the nature of any existing and previous involvement with te tamaiti or rangatahi and their whānau or family, and how this contributes to our understanding of oranga.

Step 1: Before completing the application

• Complete an assessment based on known information.
• Consult with a supervisor, or in their absence the practice leader.
• Hold a child/young person and family consult, or record why this has not happened.
• Get legal advice from a Legal Services solicitor about the application and making it with or without notice.

Policy: Assessment

Child/young person and family consult

Step 2: Complete the application

A without notice application for interim custody must be completed. It is supported by an affidavit containing the following information:

• the outcome of the assessment, detailing the reasons why te tamaiti or rangatahi is in need of care or protection
• why the safety or wellbeing concerns for te tamaiti or rangatahi are serious enough to meet the without notice threshold
• all information favourable to the respondents
• whether whānau or family have been provided with appropriate opportunities to engage (such as a family group conference or hui ā-whānau), and if not, why not
• why any lower level of intervention (such as an application on notice) will not address the safety or oranga concerns for te tamaiti or rangatahi.

Step 3: Obtain site manager approval

• Ensure both the application and the affidavit in support are reviewed by a Legal Services solicitor or record why they have not been.
• Complete the Site manager approval form for without notice application for section 78 custody order – template (DOCX 41 KB)
• Email the approval form, a copy of the application and supporting affidavit to the site manager, practice leader and regional litigation manager for consideration and approval.

In deciding whether to approve a without notice application for interim custody, the site manager must be satisfied that the following kaimahi (or kaimahi acting in these roles) endorse the application:

• practice leader – endorses the practice rationale for the decision
• regional litigation manager – endorses the legal rationale for the decision.

The site manager may then approve the application once satisfied that both the practice and legal rationales are sound.

If the situation for te tamaiti or rangatahi is critical and the delay caused by obtaining site manager approval might place te tamaiti or rangatahi at risk, we consult with our supervisor, practice leader, solicitor and site manager about whether immediate emergency action is required.

Pathways to care: emergency actions