Assessing safety and wellbeing when parents or caregivers have lost the care of other mokopuna
What's Important To Us
Evidence shows that past behaviour is often a good predictor of future behaviour. Unless significant change has occurred, there is significant risk of harm to mokopuna who are parented by someone who has had a child or young person previously removed due to abuse or neglect, or has been convicted of the murder, manslaughter or infanticide of a previous child or young person.
This key information will help you to identify and manage situations where a care and protection assessment - the assessment that is completed as part of your investigation or child and family assessment (CFA) - is required for a child being born to a parent or moving into a home where other children or young people have been removed due to safety concerns.
This key information addresses two groups of children and young people:
- a subsequent child, as defined by s2, and the parent meets the criteria in s18A(1) of the Oranga Tamariki Act 1989; OR
- a child or young person with a parent who has had other children or young people removed due to safety concerns, or a child or young person moving into a home where other children or young people have been removed due to safety concerns.
In both situations, a thorough assessment of the risks and needs is required. However, for subsequent children (as defined by the Oranga Tamariki Act 1989), there is a specific requirement to complete an assessment as per s18A and then bring the matter to the attention of the court. In other cases that do not meet the subsequent child criteria, the usual provisions to support and ensure safety are available and must be applied as usual.
The subsequent child sections (s18A-s18D) provide a requirement for oversight from the Family Court to ensure the safety and wellbeing of mokopuna when parents have previously had a mokopuna permanently removed due to abuse or neglect, or have been convicted of killing a child they cared for.
In these situations, the parent must demonstrate that they are unlikely to inflict, or allow to be inflicted, the kind of harm that was previously inflicted on the previous mokopuna. The responsibility to show that the risk of harm is satisfactorily removed rests with the parent(s).
Your care and protection assessment, completed through working closely with the parents and those that know them, needs to carefully identify whether the parent(s) has reliably demonstrated that the past is unlikely to be repeated with the subsequent child. The matter must then be referred to the court for the court to make the final decision.
It is important that there is strong involvement with family/whānau throughout the assessment and in the plan for the child or young person. Family/whānau involvement in decision making will enable flexible practice with family-led solutions.
We support multi-disciplinary practice as a means of securing safe care for children and young people. Involving the supports for the family, such as school, medical and therapeutic services, in your assessment and in any plans is pivotal.
When must I complete a care and protection assessment?
If a parent or caregiver has previously been unable to provide safe and responsive care for a child or young person, we need to find out whether they can safely care for any other child or young person.
This is particularly important when a parent has lost the care of an infant or young child and they are expecting a new baby. Infants have no ability to protect themselves or provide for their most basic physical and psychological needs. They are totally dependent on adults for their care and safety.
In many situations, parents or caregivers will have addressed concerns and be able to provide safe and responsive care. However, given the vulnerability of babies and young children, it is important we do not just assume this. We should explore it through our assessment. Pregnancy and a new infant bring renewed pressures and stresses to families. You need to be sure that sufficient additional support is in place so the strengths and gains parents have made in their capacity as caregivers will endure this stress.
Not all circumstances are the same, and it is important to assess the safety and needs of this particular infant or child with this particular caregiver at this particular point in time. The safety and risk screen may give you confidence that the child is safe, or it may indicate that further assessment is required.
When a report of concern is received for a child or young person whose parent or caregiver has previously had a child removed from their care due to harm, or an unacceptable risk of harm, a care and protection assessment is required. This is regardless of whether or not the parents meet the criteria of the subsequent child provisions in the Act.
In some cases, we will become aware a mother is pregnant and we are already working with her to have the care of other children returned. A care and protection (CFA) assessment is required for the new baby in these circumstances.
Remember that, even if a child or young person is not living in the household but is frequently in the care of someone who has previously failed to provide safe care, their needs and wellbeing are to be assessed and understood.
The practice guidance throughout this key information (about engaging with family/whānau, things to consider in assessment, planning and involving professionals) applies equally to subsequent children and to any child or young person who comes to the notice of Oranga Tamariki.
Things to address in the assessment
Tuituia provides you with a holistic and comprehensive framework for assessing the wellbeing of children and young people. The depth and breadth of the assessment is tailored according to the purpose of the assessment, the nature of the concerns, the unique circumstances of each mokopuna and the context of our engagement with them.
Situations can change; consider thoughtfully what strengths might have developed in the parenting or caregiving household, or have been drawn in from the wider family/whānau, to create a safe, nurturing environment for the new child. In many cases, we will have worked with the family/whānau to establish safety and wellbeing and the child in care will have been returned home. Carefully consider the parent or caregiver’s strengths and the progress made that resulted in the decision that it was safe to return the child. Does this provide sufficient safety for the new baby or child?
Become familiar with CYRAS records, especially court documents, that outline the previous concerns. Some specific things to consider in your assessments; and cover in court documentation for the s18A report to court, are:
- understand the issues that contributed to the previous mokopuna being placed in care. what was the context and environment for the mokopuna and parents at the time?
- what insight do the parents have into the safety and risk issues? do they understand their role and responsibility and understand what may need to be different this time?
- have they developed their parenting skills in any specific way?
- what are their plans for managing any stress and challenges in their parenting now?
- what supports do they have?
- what do the mokopuna say about their home life and their parent’s care?
- what do others say about the changes in their parenting? talk with friends, wider family and professionals involved with the family - what do they think the strengths of the parents are and what would they identify as the areas for development?
- what kind of evidence can the parents offer to demonstrate change?
- obtain updated police checks and feedback from professionals e.g. alcohol or drug providers
When parents meet the criteria for s18A, you need to be able to explain to the court what has or has not changed, and consider if the same risks are likely for this new child. It is important to note that we are not looking to see if the parents are now “excellent” parents, but whether or not there is the likelihood of the same kind of harm being repeated on the subsequent child and whether a declaration is warranted. It is ok if the parents need help and support from others in their parenting role - almost everyone does in some way.
What is the legislation for ‘subsequent children’?
In 2016, specific provisions were added to the Oranga Tamariki Act 1989 to provide greater oversight when reports of concern involve people who have caused the death of a child or young person, or had a child or young person previously removed. The subsequent child criteria are very specific.
S18B applies to a person when:
- they have been convicted of the murder, manslaughter or infanticide of a child or young person they had custody or care of at the time of the child or young person’s death (s18B(1)(a)); or
- they have had a previous child or young person permanently removed from their care with no realistic prospect of a return home (s18B(1)(b)).
Where a child or young person has been removed, this is further defined:
- a court declaration or FGC agreement made that the child or young person is in need of care or protection under section 14 (1)(a) or (b); and
- an order made under s101 or s110 of the Oranga Tamariki Act 1989 or s48 of the Care of Children Act; and
- a Family Group Conference or Court decision that there is no realistic prospect that the child or young person will be returned to the person’s care.
When we are aware someone meets the criteria of s18B, a flag will be applied by a solicitor, supervisor or practice leader in CYRAS. This flag will help to alert social workers to a possible subsequent child arrangement.
When a person with a s18B flag is attached as a participant to a child’s CYRAS record, it will trigger an indicator for the social worker to establish if this is a subsequent child. For s18A to apply, which relates to assessment and applications to court, the flagged person must be as described in s18B, be the parent of the subsequent child, and have, or be likely to have the care or custody of the subsequent child.
- the subsequent child must be as defined in the Act; up until their 14th birthday. However the previous child and young person can be 0-17 years of age.
- when the previous harm was caused, the person must have had the child or young person in their care, meaning their day-to-day care or custody (not for example a babysitter)
- the assessment in relation to a subsequent child only takes place if the person who meets the criteria of s18B is a parent of the child. The term ‘parent’ means the mother, father or step-parent, and does not include other near relatives or those with custody or parenting orders.
Meeting the criteria for s18A or s18B does not mean the child or young person should be removed from their parent’s care automatically. Your assessment and recommendation to court will guide what action to take.
Remember that nothing about s18A stops you taking any necessary steps to ensure the care and safety of a child or young person at any time, in conjunction with their family. All the normal approaches to creating safety and wellbeing apply, with the exception of an FGC, which could be convened for other concerns, but is not convened for subsequent child matters until after an application has been made to court.
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What is additional about an assessment for a subsequent child?
During your assessment, work closely with the child, the parent, family/whānau, and their support people to identify if the parent is likely to inflict, or allow to be inflicted, the kind of harm on this child as they inflicted, or allowed to be inflicted, on the previous child or young person. This is the key issue that needs to be presented to court and determines which application you will make. In cases of subsequent children, a family group conference is not held before the application to court is made.
Following your assessment, you need to apply to the Family Court for either:
- a declaration the child is in need of care or protection on the grounds of s14 (1)(ba); or
- confirmation of the decision not to apply for a declaration under s67.
Take special care to ensure that the parents understand clearly that the Family Court will be involved, encourage them to seek legal advice and also encourage them to attend court if they wish to.
In practice, we use the same assessment framework for an assessment of a subsequent child as we already use with families. A comprehensive and thorough CFA or investigation should be completed, using Tuituia as the guiding framework. There are some specific things that must be covered off so the court can be fully informed about the child’s situation and the likelihood of the parents repeating the harm their earlier child experienced, which are separated from the Tuituia later for filing in court.
Working with the Family Court
Work very closely with your solicitor when developing documentation for court under the subsequent children provisions.
There is a court template in CYRAS called “s18A assessment by social worker” which you can complete following your Tuituia. When reporting to court about a subsequent child, only information that relates very specifically to those matters should be given. It is likely a Tuituia will hold more information than that. The “s18A assessment by social worker” template allows you to pull out and document only what is relevant to s18A and provide this to court.
When we take any action through court or under law (such as signing a s139 agreement, or applying for a place of safety warrant), it is important we fulfil our duty to be fair and transparent and do our best to ensure mokopuna and their family/whānau understand their rights and what is happening.
This includes when you have established they meet the criteria for the subsequent children provisions. However, our advice cannot substitute legal advice for parents. They should be encouraged to seek legal advice when needed. A lawyer for child may be appointed as soon as any applications are made in court, including those under s18A, if required.
Working with mokopuna and their family/whānau
It is vital that parents, their children and the wider family/whānau understand why you are involved and the role of the Family Court with subsequent children. It is not enough to just tell them the “law says” an assessment has to be completed. In situations where mokopuna have previously been placed in care, the parents may feel angry towards any approach from Oranga Tamariki, or fearful this child may also be removed from them. Parents can become distressed, behave in threatening ways and, in some cases, flee or avoid contact.
Make every effort to engage with both parents and explain we want to work together with them and their family/whānau to make sure that the child is safe and well cared for. Be honest and explain why you are concerned for the mokopuna in a way the family/whānau can understand. Talk directly to mokopuna and help them understand why Oranga Tamariki are involved in their lives.
Involve key family/whānau members, community leaders and professionals, and anyone else involved with the family, to support the parents and discuss how they can be helped.
When parents or caregivers have worked together with us and family/whānau to have their child returned to their care, they may feel dismayed and mistrustful when we approach them about completing a care and protection assessment for a new baby or child coming into their home. This situation will require sensitivity and transparency; let the parents or caregivers know that we want to make sure they have the best possible support to provide safety for all the children in their care..
After the assessment
If the subsequent children provisions do not apply, conclude your assessment as you normally would, making decisions about what supports are needed for mokopuna and their family/whānau, and about how these can be put in place. The mokopuna and their family/whānau should know the outcome of your assessment, including any findings you have made and any recommendations for further action.
Where the subsequent children provisions do apply, and the court has dealt with the applications, all usual policy and practice is followed.