Use of legal orders to secure a permanent living arrangement
Updated: 01 July 2016
What's Important To Us
All mokopuna have a right to live safely and permanently within a family/whānau. A legal relationship between mokopuna and their caregivers provides security for both parties, and enables the Permanent Caregivers to make important day-to-day care decisions for mokopuna.
Legal orders to support permanent care are provided for by the Oranga Tamariki Act 1989 and the Care of Children Act 2004 (CoCA).
As well as supporting the relationship between mokopuna and their permanent caregiver/s, formalising the care arrangement with legal orders provides access to support and assistance to meet the needs of mokopuna when it is required. The most important factor to consider is that the order/s selected best meets the interests of the mokopuna and ensures a stable permanent care arrangement.
Selecting legal orders that best suits the situation requires assessment, consideration and consultation with the caregivers, the mokopuna, family/whānau of the mokopuna and legal services.
Custody and Guardianship orders under CoCA
Caregivers can apply for parenting and guardianship orders under CoCA. A parenting order is also referred to as custody because it gives the responsibility of providing day-to-day care to the caregivers. This is usually the final step in assuming legal responsibility for mokopuna.
These orders are not reviewed: the absence of regular reviews supports a permanent care arrangement as it recognises that mokopuna is now part of that family/whānau and the placement does not require monitoring.
It is important that permanent caregivers have the appropriate legal status for dealing with the needs of mokopuna who are now part of their family/whānau. For this reason it is best that caregivers apply for additional guardianship alongside the parenting order. While this order will ideally be granted under the CoCA, a transitional period of orders under the Oranga Tamariki Act 1989 may be appropriate.
There may be some cases where caregivers find working with the birth parent/s of a mokopuna particularly challenging when they are actively undermining or endangering the safety or wellbeing of the mokopuna.
We will try to resolve those issues by appropriate applications to the Family Court. Caregivers are recommended to speak to their legal representative about the best options to meet the needs of the mokopuna, birth parent/s and their own circumstances.
Special Guardianship orders under the Oranga Tamariki Act 1989
Special guardianship is an alternative way of securing custody and guardianship of mokopuna who require a permanent care living arrangement. It offers increased security for mokopuna and their caregivers by:
- providing the special guardians with day-to-day care of the child until they are 18 years of age
- allowing the ongoing role played by the guardians to be specified based on what is best for the child
- enabling the Court to specify which guardianship rights will be shared between the special and existing guardians, and which rights (if any) will be held exclusively by the special guardian
A caregiver can apply for a special guardianship order if that is their preference. If they want us to we can apply for a special guardianship order on their behalf when we apply to discharge orders in favour of the chief executive. Remember, caregivers must always be encouraged to seek independent legal advice.
There don't have to be issues between the guardians for a caregiver to choose to become a special guardian. However, when there are issues between guardians impacting on the stability and security of the mokopuna, the Court can consider giving specific guardianship rights exclusively to a special guardian once all alternative methods for resolution have been exhausted.
It is important to remember that though the Court has the ability to determine if specific guardianship rights should be held exclusively by a Special Guardian, when considering a special guardianship order our starting position is always that guardianship rights are shared with the birth parents/other guardians.
Permanent caregivers with CoCA orders for mokupuna who have been in the custody of the chief executive, and who are experiencing difficulty exercising their guardianship rights due to behaviour of birth parents/other guardians which is negatively impacting the mokopuna, have an option to change to a special guardianship order.
To do this they need to demonstrate to the Court that the parents’/other guardians' conduct represents a pattern of behaviour, that the welfare of the mokopuna is being threatened or seriously disrupted as a result, and that all other measures under CoCA to resolve disputes have been exhausted. See 'Special guardianship from CoCA orders' below.
A special guardianship order is not reviewed; however, under the provisions there is an obligation on the special guardian to advise a Oranga Tamariki social worker if the mokopuna has left their care and is living with someone else on more than a temporary basis. See 'Change in living circumstances' below.
Special Guardianship – varying the order
A special guardian can request a variation to their order at any time. The Court is able to give exclusive guardianship rights for specific issues to a special guardian if doing so is necessary to achieve stability and security of care for a mokopuna.
Unless all parties consent, special guardians require leave of the Court before they can independently apply to vary their special guardianship order. However, the chief executive can make applications without leave of the Court and special guardians can approach Oranga Tamariki to vary the order.
You will need to complete an assessment to determine whether changing the order will provide greater security and stability for the mokopuna or whether there is another way to resolve the issues between the guardians. If your assessment shows that varying the order is in the best interest of the mokopuna an application will be made by Oranga Tamariki.
It is important that you talk to all guardians, mokopuna, the social worker involved with the permanent care arrangement and other parties as appropriate. Consider the following when determining the depth and breadth of your assessment.
- the person has been unable to effectively exercise their guardianship responsibilities , or responsibilities to provide day to day care of mokopuna; and
- the inability is due to the conduct of the parents or other guardians of mokopuna and forms a pattern of behaviour; and
- the welfare of the mokopuna is being threatened or seriously disturbed as a result
- the permanent caregiver has attempted to resolve disputes with any parent or other guardian that relate to the circumstances that has led to the variation request
- setting the requested limitations will provide greater security and stability of living arrangements for mokopuna
Also, be sure to consult with Legal Services for legal advice.
Special Guardianship – from CoCA Orders
There may be instances when permanent caregivers with existing CoCA orders believe that special guardianship arrangements would better meet their needs. The option to change to a special guardianship order is only available to permanent caregivers when their CoCA orders have replaced custody orders in favour of the chief executive. In these cases the permanent caregiver will have to seek leave of the Court and make an independent application with the assistance of their own lawyer.
There are thresholds which need to be met to satisfy the Court to grant leave and to make a special guardianship order in place of CoCA orders. These thresholds are:
- the person has been unable to effectively exercise his or her guardianship responsibilities, or responsibilities to provide day-to-day care to the child or young person; and
- that inability is due to the conduct of the parents or other guardians of the child or young person, and that conduct forms a pattern of behaviour; and
- the child or young person's welfare is being threatened or seriously disturbed as a result.
the person has exhausted all mechanisms available under the Care of Children Act 2004 to resolve disputes with any parent or other guardian of the child or young person
If leave is granted, Oranga Tamariki will be a party to the proceedings and you will be required to complete an assessment (see Special Guardianship – varying the order) and report directly to the Court.
Your assessment will identify how changing the guardianship arrangement will provide greater security and stability of living arrangements and is in the best interests of the mokopuna.
Special Guardianship – Change in living circumstances
Under the new legislation, special guardians have an obligation to advise Oranga Tamariki if a mokopuna begins to live with anyone else on more than a temporary basis.
When we are notified of a change of circumstances for mokopuna you will undertake an assessment to ensure the new living arrangement is safe and stable for the mokopuna, and to determine what should be done about the current special guardianship order.
It is important that you talk to mokopuna (subject of the special guardianship order), the special guardian, the new caregivers and any other parties as appropriate.
The scope of your assessment should include:
- exploration of the reasons for a the change in placement
- the suitability of the new living arrangement and what supports may be required. This would include Police and CYRAS checks for the new caregivers and other adults in the new household
- whether the current special guardianship order should be discharged and whether a new order should be made in favour of the new caregivers. If the new caregiver elects to obtain a special guardianship order they would then be deemed a permanent caregiver and be entitled to financial and other assistance available under s388 A.
You will need to make a formal section 15 notification if care or protection concerns become apparent during the assessment and the current living arrangement is not deemed suitable.