Listen to this policy:
Policy
Without notice application for interim custody of a tamaiti or rangatahi
All without notice applications for interim custody of a tamaiti or rangatahi under section 78 of the Oranga Tamariki Act 1989 must be approved by the site manager before they can be filed.What is a without notice application
Section 78 custody orders can be applied for in 2 ways:
- On notice (also called with notice) – the application is served on the respondents before it is granted by the court. An application can be filed to reduce the time the respondents have to file a notice of intention to appear. This means the respondents have only a limited opportunity to reply to the application (usually between 1 and 3 days).
- Without notice – the respondent is not informed about the application before it is granted by the court. If the court agrees with the application, it usually grants the order on the same day. The court may also request a type of hearing, called a Pickwick Hearing, that requires the applicant to attend court to provide evidence about the application.
When this policy applies
This policy applies when we are considering if we should make a without notice application for interim custody.
This policy does not change the usual social work assessment and decision-making process for establishing whether or not we should make an application for interim custody.
When to file an application without notice
Before filing an application for interim custody without notice, we must prove that the delay caused by filing the application with notice might cause te tamaiti to suffer:
- serious injury
- undue hardship
- risk to personal safety.
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.
Process for preparing the application for approval
We must complete the following steps before submitting a without notice application for interim custody to the site manager for approval:
- 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 process
A without notice application for an interim custody order can only be filed with the approval of the site manager (or person acting in this role). The site manager must be satisfied that there are grounds for making the application without notice after considering the application.
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.
Escalation process
If there is disagreement about whether the without notice application should be approved, the site manager must consider what further steps might be needed to reach agreement. Further steps could include a case discussion including the social work team, regional litigation manager, practice leader and site manager.
If agreement still cannot be reached, the site manager must escalate the final decision to the regional manager.
Recording the approval decision
The template approval form must be saved as a casenote on CYRAS.
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.