We wanted to know why
and have been returned home to their parent/s yet remain in the custody of the Chief Executive of Oranga Tamariki. On the face of it, if the home has been considered safe then why is the State still custodian? We did not get a clear answer.
Once tamariki are returned home, it is accepted that it can take time for care and protection orders to be discharged by the Family Court. However, considering the average duration that orders remain in place, this cannot be the main reason for why the State remains custodian.
From our interviews, it was evident there are many reasons why orders remain, including risk averse practice. However, we also found there is an absence of clear guidance for Oranga Tamariki social workers on when orders can be safely removed, and when alternative avenues for providing support are used.
Removing a child from their family and placing them in, and keeping them in, care involves the exercise of considerable power by the State. The lack of clarity we heard in preparing this report suggests the need to keep orders in place may not always be justified, and that less coercive powers could be utilised to support tamariki and their parents.
Lack of guidance for Oranga Tamariki Social Workers
Oranga Tamariki data shows that the average duration for tamariki in return home care ranges across Oranga Tamariki regions from eight to 18 months. The average duration for tamariki in remain home care ranges across Oranga Tamariki regions from 10 to 32 months. This is suggestive of an inconsistent approach to when custody orders are removed.
We asked Oranga Tamariki about the variation between regions and were told there is no specific guidance around making decisions to discharge custody.
Oranga Tamariki acknowledged that there are a number of policies about remain and return home that influence decision making. We heard this is because “there is no one size fits all” and a single policy cannot respond to the unique needs of every tamariki, their parents and
. We subsequently heard that “responsive planning around return home should account for specific situations.”
Alternatives to providing support to tamariki and whānau
When meeting with Oranga Tamariki National Office to understand the rationale for orders remaining, we heard that “there are a lot of barriers to removing custody orders” for tamariki returning home and that this is not a straightforward process.
Oranga Tamariki advised that, at times, a custody order might be in place as part of a plan where tamariki can return safely to their parents, and at times this can be whānau driven as they have concerns for the safety of tamariki. For some tamariki who remain
at home, we were told custody orders allow Oranga Tamariki to support the whānau and provide a level of support that wouldn’t otherwise be available.
Oranga Tamariki National Office advised that, in some cases, there may still be safety concerns for the tamariki while living with their parent/s. Oranga Tamariki maintaining a custody order allows social workers to support the whānau and connect them with supports in the community until they can provide care without the need for a custody order.
However, Oranga Tamariki National Office kaimahi also acknowledged that access to funding and support should not be a reason to be in State custody, but in some instances is the only way that tamariki and their parents can access support. When asked about alternatives such as services and support orders and why these were not the default legal option, we were not provided with a clear rationale.
A Services Order can be made under Section 86 of the Oranga Tamariki Act. This commits Oranga Tamariki to provide resourcing for the services needed while the tamariki or rangatahi is at home with their parent/s. These services are set out in the plan submitted to the Family Court.
A Support Order can be made under Section 91 of the Oranga Tamariki Act. This enables formal social work involvement, with a focus on support and monitoring. It can be used when the care or protection of tamariki or rangatahi requires monitoring, and the whānau
or family requires assistance to provide safe care.9
There is guidance on the Oranga Tamariki practice centre stating that Support Orders can avoid the need for a Custody Order and can be used where custody orders have been discharged, where further support and oversight is required.10 However, it is unclear on when and how to apply this guidance.
The lack of clear guidance for Social Workers is likely to contribute to variations in practice, and why orders may remain when they are no longer required.
The consequence of keeping orders in place unnecessarily may increase the administrative burden on social workers, and a level of imposition on the lives of tamariki and their whānau that is no longer warranted.
The role of the Family Court and Lawyer for the Child
Some Oranga Tamariki kaimahi expressed concerns that some lawyers representing the whānau and/or the tamariki did not take social workers’ views into account when providing advice around tamariki care, with some lawyers “stuck in the old ways, trying
to keep children in our [Oranga Tamariki] care”. Those kaimahi felt this could result in recommendations not being in the best interests of tamariki or whānau, especially where they felt the lawyer had spent little or no time with those they were representing.
“Counsel [Lawyer] for child has too much power, they see tamariki once every year or every six months, then the Judge looks to them [to guide decision making] … Half our kids [in care] don’t know who their lawyer is when we use their names.”
“I have issues with the Lawyer for Child, things can be difficult with Lawyer for Child. They’re saying one thing and we are trying to uphold the decision of child and whānau. Then the Lawyer for Child is stone-walling the really big conversations that we are having. It’s difficult to shift even from a Section 101 to Section 91, [let alone discharge custody].”
When it comes to tamariki who remain in the home, we heard that sometimes the decision is made by the Family Court. Site leadership gave an example:
“We have a situation where we applied for a Section 78 [Custody Order] and the Judge put in a condition that the tamariki remain with mum”.
Oranga Tamariki kaimahi also had the perception that there was an element of risk aversion to releasing tamariki from their custodial order accompanied by a general distrust between the lawyers/courts and Oranga Tamariki kaimahi “as to whether we will do what we say we are going to do”. Kaimahi described it as “tiring and draining” when they had to have multiple consults with lawyers and judges to convince them tamariki could be returned home with adequate supports in place – “it can be a grind”.
Known difficulties in accessing support for families may also be contributing to risk averse practice and decision making.
While a custody order can be a safety net for tamariki and rangatahi, it remains unclear as to when is the right time to remove an order and hand back responsibility for day-today decision making to the parents, or why less coercive powers aren’t utilised more to
support tamariki and their parents.