Section 18B criteria of subsequent child provisions
Updated: 06 August 2019
The subsequent tamariki sections (18A to 18D) of the Oranga Tamariki Act 1989 outline what we must do when working with a person or parent who has been convicted of the murder, manslaughter or infanticide of a child who was in their care at the time te tamaiti died or had a tamaiti permanently removed from their care due to abuse or neglect in the past.
Working out whether the parent meets the criteria of section 18B determines whether the assessment needs to contain section 18A specific matters and whether an application to court must be made. This webpage outlines how to record that a person meets the criteria.
The section 18B criteria
Section 18B(1) of the Oranga Tamariki Act 1989 describes when this section applies to a person. There are 2 subsections to this:
- a person who has been convicted under the Crimes Act 1961 of the murder, manslaughter or infanticide of a tamaiti or rangatahi who was in their care or custody at the time of the death of te tamaiti or rangatahi, or
- a person who has had a tamaiti or rangatahi removed from their care and there is no realistic prospect that te tamaiti or rangatahi will be returned to that person’s care, and
- a decision has been made following an FGC or Court has determined that there is no realistic prospect that the child or young person will be returned to the person's care.
When a person meets this criteria, and they become the parent of a subsequent child, section 18A applies, an assessment must be undertaken and applications must be made to court based on whether the social worker believes the parent is likely to inflict, or allow to be inflicted, the kind of harm that led to the parent being a person described in section 18B.
For the assessment of the parent of a subsequent child to apply, the parent must:
- be a person described in section 18B (see above), and
- be the parent of a subsequent child, and
- have, or be likely to have, the care or custody of the subsequent child.
A person can meet the criteria of section 18B for the death of, or harm they caused to, a tamaiti or rangatahi aged 0 to 17 years of age. However, the assessment for section 18A relates to subsequent tamariki, meaning tamariki up to their 14th birthday.
When the previous harm was caused, the person must have had te tamaiti or rangatahi in their care, meaning their day-to-day care or custody (and not, for example, a babysitter). The assessment in relation to a subsequent child only takes place if the person who meets the criteria of section 18B is a parent of te tamaiti.
The term ‘parent’ means the mother, father or step-parent and does not include other near relatives or those with custody or parenting orders.
It is important to note that section 18B refers to convictions under the Crimes Act 1961, meaning convictions made in New Zealand. If someone was convicted of a similar offence overseas, section 18B does not apply, but this does not hinder any other response to concerns if they were to parent or care for another tamaiti or rangatahi.
A person who meets the section 18B criteria will require an assessment as per section 18A if they become the parent of a subsequent child.
If at any time it is identified a person who meets the section 18B criteria is the parent of a tamaiti (other than te tamaiti currently being assessed), a new notification must be made for that tamaiti.
There will be people who meet the section 18B criteria who do not have a record on CYRAS. In any new report of concern, where it is identified the parent has had a previous tamaiti or rangatahi removed, or they have caused the death of a tamaiti or rangatahi, the social worker will:
- be mindful of this criteria and establish whether it applies
- consult with a solicitor to establish whether the criteria is met.
When section 18B is applied
The National Contact Centre (NCC) will receive information from the Police or Ministry of Justice about people who meet the criteria due to the murder, manslaughter or infanticide of a tamaiti or rangatahi in their care or custody. The NCC will note this information on their records and store the information provided (as there may not be a CYRAS record to store this information against). This can be accessed by social workers on request.
Additional information is to be added to their records when a person has had a tamaiti or rangatahi removed from their care and a decision has been made following an FGC or Court has determined that there is no realistic prospect that te tamaiti or rangatahi will be returned to the person's care as defined in section 18B(2) of the Act:
- The court has made a declaration (prior to 1 July 2019) or care or protection order, or a family group conference has agreed, that te tamaiti or rangatahi is in need of care or protection on a ground in section 14(1)(a) or (b), and
- the court made an order under section 101 or 110 of the Oranga Tamariki Act 1989 or section 48 of the Care of Children Act 2004.
When a social worker becomes aware that the section 18B criteria may have been met, they will consult with a solicitor to confirm this. The social worker will inform their supervisor, who will record this information. Supervisors, solicitors, practice leaders and social workers have the ability to add or update information relating to persons who meet the section 18B criteria themselves if they become aware it is needed. Anyone adding or updating information must be certain that the criteria to do so have been met.
It is recommended that when adding information about a person who meets the section 18B criteria, the comments box is used to note which case this decision relates to and where to find further information.
When a person meets the section 18B criteria, it is recorded under the ‘demographics’ field in the person details in CYRAS.
When the section 18B information is removed on CYRAS
The details of a person who meets the section 18B criteria can be removed from their record if:
- it has been applied in error, or
- the court determines it has been applied incorrectly, or
- the conviction for murder, manslaughter or infanticide is overturned.
The section 18B flag against a person can also be removed when they no longer require an assessment as part of the subsequent tamariki provisions as described tamariki — refer to section 18A(7) of the Oranga Tamariki Act 1989.
The section 18A subsequent tamariki assessment provisions no longer apply to a parent when:
- the court confirms a decision not to apply for a care or protection order, or
- a section 18A application for care or protection order on the ground section 14(1)(c) is refused by the court, or
- before 1 July 2016, the parent was subject to a section 17 investigation (which includes a child and family assessment) in relation to a tamaiti who would have fallen within the definition of a subsequent tamaiti, and the social worker did not form the belief te tamaiti was in need of care or protection.
Whenever a person’s record is being merged or unmerged on CYRAS, it is important to check that details about any person who meets the section 18B criteria are recorded correctly.
Sometimes the records of 2 people are merged and a record is later made on the merged record that a person meets the section 18B criteria. If the record is then unmerged, neither person will be identified as a person who meets the section 18B criteria. Therefore you must add to their record that they meet the section 18B criteria.
Only merge or unmerge a person’s record if you have checked and are certain it is required.
Reactivating section 18B information
It is not ideal to change the section 18B information on someone’s CYRAS record several times due to uncertainty about whether they meet the criteria.
Be clear about your decision-making the first time. However, if you do reactivate someone’s section 18B information because it was removed in error, and they are a parent of a subsequent child in a child and family assessment or investigation phase, you must also withdraw the ‘section 18A assessment not required’ casenote (if created) to reactivate the section 18A information on the case.