Without notice application for interim custody of a tamaiti or rangatahi

Ngākau whakairo

Before making a without notice application for interim custody (which removes the right of reply), 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 lead 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

We must then consider whether these risks will be addressed if we make an application with notice giving the respondents a short amount of time to file a notice of intention to appear. If this will not address the risks, we then 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 and explore alternative options
• the nature of any existing and previous involvement we have or may have had with te tamaiti and their whānau or family and how that connects to the current events causing the concern.

Types of court orders

• Complete an assessment based on known information.
• Consult with supervisor, or in their absence practice leader.
• Complete a child and family consult, or outline why this has not happened.
• Get legal advice from a Legal Services solicitor about the appropriateness of the application and making it with or without notice.
• Complete an affidavit to support the application which outlines:
  • any 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 the safety concerns for te tamaiti are serious enough to meet the without notice threshold
  • why any lower level of intervention (such as an application on notice) will not address the safety concerns of te tamaiti or could compromise the safety of te tamaiti.
• Ensure both the application and the affidavit in support are approved by a Legal Services solicitor or state why they have not been approved.
• Complete the ‘Site manager approval form for without notice application for section 78 custody order’ and send together with a copy of the application to the site manager, practice leader and regional litigation manager for approval.

Site manager approval form for without notice application for section 78 custody order – template (DOCX 41 KB)

In deciding whether or not to approve a without notice application for interim custody, the site manager must be satisfied that the following people (or people 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 is critical and you consider that the delay caused by obtaining site manager approval might place te tamaiti at risk, consult with your supervisor, practice leader, solicitor and site manager about whether immediate emergency action is needed.

Pathways to care: emergency actions

The casenote must clearly record:

• whether the decision to apply for the order without notice has been approved or not approved
• who was consulted in reaching the decision
• the factors taken into account in reaching this decision (including how any differences of views have been addressed).

In exceptional circumstances, where the safety of te tamaiti warrants this, verbal approval may need to be provided in the first instance. In these circumstances the approval form must be completed and entered on CYRAS as soon as possible.