‘Care and protection’ – confusion about without-notice uplifts, family group conferences, and s67 ‘declarations’

When Oranga Tamariki social workers and police uplift children without notice, often using deception to gain access to the children, parents and families are justifiably enraged, shocked, and indeed beside themselves. Families’ and parents’ reaction may then make things worse and be used against them in subsequent court proceedings.

All of that is bad enough.

What makes everything worse is confusion about the relevant law.

It is almost impossible for a lawyer to explain to a distressed parent how the phrase ‘in need of care and protection’ is used through different stages of the process. That parent is then likely to be contradicted by lawyers and FGC Co-ordinators who have themselves been misadvised about the relevant law.  (Law-society training sessions have sometimes got this wrong. So have some judges. It is not the individuals’ fault. It is not a conspiracy against a particular parent or family. It is a systemic problem that needs correction.)

This blog may help parents and lawyers facing this situation.

Temporary court order to permit uplift of children

In general terms, to get an order to allow them to uplift children, Oranga Tamariki (OT) social workers have to satisfy a court that:

  • at the time of making the application, the children are more likely than not to be at risk of physical, sexual or emotional harm if OT does not intervene (this is my simplistic paraphrase of the statutory definition of ‘in need of care and protection’ – you can read the full statutory definition here, in Oranga Tamariki Act s 14)
  • other options are not practicable or will put the children at risk (often the perceived – and real – risk is that the parents will run and hide with the children, if an application is served on the parents before the court makes an order)

Usually the Family Court will err on the side of safety and make the temporary order requested.

This is not a definite decision about whether OT’s intervention will continue to be needed. The parents are able to challenge these temporary decisions by the Family Court.

Next steps

A Family Group Conference is required urgently, unless one has already been held. (See below.)

The parents also have 7 days to file a notice of intention to appear’ in the Family Court (and send a copy to OT), to say they dispute the allegation that the children are ‘in need of care and protection’.

They can also apply to discharge the temporary custody order that allowed OT to uplift the children.

However, these documents will not be considered instantly (unlike the original applications by OT).  It would require truly exceptional reasons to get the court to look at cancelling the uplift decision without going through several weeks (or sometimes months) of procedural steps.

Therefore the parents need to get help to stay calm and cope with the system.  It will take time.

As well as a good lawyer, the parents and families need strong emotional support and self-discipline, to avoid making things worse while they are in the reactive phase.

Family Group Conference

FGC – ‘care and protection’ agreement does not mean agreement to a s67 declaration

A family group conference is an opportunity to come up with a plan to address whatever care-and-protection issues exist.

However, in order to start discussing a possible plan, the people attending the FGC first have to agree that the children are ‘in need of care and protection’. (OTA s28(b). This is really unfortunate wording because it creates much confusion and heartache and, in practice, gives OT more power than it was intended to have.

Agreeing at an FGC that the children are ‘in need of care and protection’ does NOT mean the FGC is agreeing that the social workers got everything right, or that the uplift was justified. Even more significantly, it does NOT mean the FGC agrees to the making of a s67 ‘declaration’.   All it means is that the FGC agrees that – as at the time of the FGC itself – there are care-and-protection issues for the children that need to be addressed, and that the FGC wants to try to make a plan to address those issues.   (Even if people at the FGC cannot agree that there was any basis for OT’s actions, they can usually agree that the children are (now) at risk of emotional and psychological harm (because they have been uplifted). That agreement can be enough to allow those present to try to make a plan that will address the children’s genuine needs, looking forward instead of angrily going through the minutiae of what happened at the uplift and how upset and humiliated people felt by it.)

In my experience, many FGC Co-ordinators and even senior family lawyers do not understand this point.  Nor do a number of lay advocates and support groups who help parents to deal with OT. This is tragic – because it means FGCs often reach ‘non agreement’ instead of coming up with an effective solution.

Unless the FGC specifically and expressly agrees that a s67 declaration should be made, agreeing that the children ‘are in need of care and protection’ must not be treated as agreement to the making of a declaration.

The FGC Co-ordinator is required to provide a written report to participants, agencies and persons affected by the decision, and the Family Court, about decisions, recommendations and plans (if any) by the FGC. (OTA s 29(3) and s 32. Anyone who attended the FGC must check whether this report is accurate. It must not say the participants agreed to a declaration, unless that actually occurred.

FGC – privileged, and absolutely no publication at all

There are particularly strict rules about FGC confidentiality. What is said at an FGC is (a) privileged and (b) must not be published.  Except for the report by the FGC Co-ordinator, nothing that occurs at an FGC can be disclosed in court or in an affidavit.

Unless it is for statistical or bona fide research purposes, under OTA s38(1) it is a criminal offence to publish any report about the proceeding of an FGC – even if you do not include any information that would enable children or adults to be identified.  Therefore, for example, you must not mention anything that happens at an FGC on social media, even if you do not identify anyone involved .

Even if you are publishing something for statistical or bona fide research, it is still a criminal offence under OTA s38(3) to publish if it contains information that would enable someone else to identify someone who was at the FGC or who was the subject of the FGC.

Criteria for a s67 declaration

Unless the parents agree to the making of a s67 declaration (or take no steps to defend it), a Family Court hearing will be necessary. As a generalisation, that hearing is supposed to start within 60 days of the OT application being filed in court (which is often the day the children were uplifted): OTA s200. In practice it often takes longer for it to be scheduled.

Under OTA s73, the criteria for making a s67 declaration are – at the time of the hearing:

  • the children are ‘in need of care and protection’ (at least one of the subsections in OTA s 14) – this does not have to involve actual or even prospective physical harm – it can involve the children being likely to be harmed emotionally – however, there has to be a current need
  • the children’s ‘need for care and protection’ cannot be met by ‘other means’ (i.e. without having ongoing OT involvement) – ‘other means’ (NOT a ‘declaration’) can include implementing a plan or decision of an FGC (OTA s73(1)
  • OTA section 73(2) specifically requires the Court, in most cases, to take into account any evidence that the kind of harm suffered by the children will neither continue nor be repeated
  • the Court is also required, in most cases, to take into account any evidence that a parent or guardian of the child is capable of ensuring the harm will neither continue nor be repeated.

If there are major factual disputes about the information OT has put forward, those disputes need to be decided by a Judge, because that OT information will be relied on in subsequent planning unless it is disproved.  If it has not been challenged at this early stage, it will probably be too late to challenge it later.

On the other hand, if the picture painted by OT is pretty accurate despite some errors, and if the issues can only be solved with OT assistance or funding, it can be better to consent to a declaration and focus instead on the plan for what happens next.

What happens next, if a s67 declaration is made?

If a s67 declaration is made, OT have to develop a care-and-protection plan. For cases that have reached the Family Court, that usually includes wanting the children to continue to be in OT custody even if the children are going to be placed back with their parent/s.

It is more helpful for parents and family to co-operate with the making of a plan, than to oppose everything the social workers try to do.

The Family Court decides whether to approve the plan.

Again, the attitude of the parents and family is crucial.

Opposition – if any – needs to be well founded and with strong, realistic, alternative proposals to address the issues that – by this stage – are no longer open to challenge in themselves.

Access orders, restraining orders, support orders, service orders, counselling orders, custody orders

These are beyond the scope of this post.

Use of information in this post

The comments in this post are intended for general readership, are a bit simplified, and should not be relied on as legal advice for a specific situation.

Readers are invited to share this post with lawyers and other legal advisers, and on social media, and also with family who may be planning to attend an FGC, and with FGC Co-ordinators if there is a dispute about what is meant by agreeing that a child is in need of care and protection. I am happy to provide more detailed information to lawyers and FGC Co-ordinators on request.

If I have misstated the law at any point, I invite correction.

Cheryl Simes

29 November 2017

Creative use of s46G counselling orders – with one psychologist per party, using peace-making therapeutic skills in a collaborative approach

New Zealand First’s election platform included a policy of making Family Court counselling more effective. We hope that the new government will encourage more creative use of the existing system, before making changes that may prove unnecessarily disruptive. The collaborative approach outlined below is one such creative innovation, achieved within the existing system.

Court-directed counselling can be used within Care of Children Act proceedings to provide one parent with input by a psychologist – for instance, if a s133 specialist report identifies a need for this.  It can also be used to provide both parents with individual input by separate psychologists (one for each parent).

Such input is not therapy.  That would be taking the scope of ‘counselling’ too far.

However, the psychologists can use therapeutic techniques to help each party understand their own personality and the other parent’s personality, improve their communication, express feelings, needs and interests, understand child development and children’s psychological needs, address historical issues that impede current parenting, and liaise with specialists if intensive therapy is required.

The psychologists can also work together collaboratively, facilitating joint meetings if appropriate, to help the parties improve their relationship as co-parents and/or to improve the effectiveness of a parenting order.

If authorised by the parties and the court, the psychologists can also liaise with a court-appointed specialist report writer (under s133 of the Care of Children Act 2004, or s 178 of the Oranga Tamariki Act 1989).

This is different from the traditional approach under s46G which sees the court appoint one counsellor who works with both parties, usually in joint sessions, with no liaison with any other specialist.

Moreover, this alternative approach is possible under the existing wording of section 46G of the Care of Children Act 2004. Although section 46G refers to ‘parties’ (plural) and ‘counselling service’ or ‘counsellor’ (singular), section 33 of the Interpretation Act 1999 allows the singular to be read as plural, and vice versa (see also section 4).

‘Counselling’ has an extended definition  (tracked through regulations and departmental guidelines) – linked to the qualifications accepted by the Ministry of Justice, which include clinical psychology.

And, although there is a statutory block on disclosing anything said by the partiesto the ‘counsellor’ (s 46L of the Care of Children Act), there is no such statutory block on disclosing something the ‘counsellor’ has said or perceived. The only restriction would be the usual obligation of confidentiality. Therefore, if a party consents, ‘their’ psychologist may disclose limited information to a specialist report writer.

In theory it would be possible for such a ‘counsellor’ also to give evidence in court, not of what a party had said (barred by s46L as above), but of what the counsellor had said, and of the counsellor’s assessment of the party, and of the work done by the party with the psychologist.  In practice, even if a party consented, this would breach ethical rules which separate a psychologist’s therapeutic role from a forensic role.  The psychologist would have a reason to refuse. However, in truly exceptional circumstances, a court might require such a psychologist to give limited evidence even if the client party did not consent, if this was deemed in the interests of the child.

Kiwilaw was recently involved in setting a High Court precedent for such a collaborative-style approach to Family Court counselling. We are happy to provide more information on request, and to receive comments from professionals and parents with insight in these matters.

Cheryl Simes

1 November 2017