Chief Executive of Oranga Tamariki v Stowers [2018] NZFC 4078

Published 17 February 2021

Variation of custody order — interim custody order — care and protection — Oranga Tamariki Act 1989, ss 5, 6, 13, 78, 101, 102, 125, 128 & 135 — Chief Executive of the Ministry of Social Development v DR [2016] NZHC 24 — MR v Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki [2017] NZHC 757. Oranga Tamariki made an application under s 125 of the Oranga Tamariki Act (the Act) for either a variation to a s 102 custody order or the creation of a new s 78 interim custody order with respect to a child (Kelly). Kelly and her three siblings were the subject of a previous s 102 order that uplifted them from the care of their mother. A defended declaration proceeding did not occur until ten months later (the judge noted this was an unreasonable delay). At the hearing a declaration that the children were in need of care and protection was made by consent. Reasons were the mother's partner had an indecency conviction and was living with the children, the mother was not acting as a protector, and other suggestions of neglectful parenting. Conditions were attached to the order for the immediate return of one child and the return of the other three after 12 weeks, following the completion of a comprehensive transition plan. Intense support was to be given to the children and mother after their return. Transition back to their mother went smoothly for two of the children but Kelly refused to return to her care. Oranga Tamariki applied to vary the current s 102 order to allow them to put Kelly in a place that protected her welfare and best interests. It was submitted that Kelly could eventually be returned to her mother, but more time was needed to mend the relationship between Kelly and her mother and ensure that Kelly would be safe in her mother's care. Firstly, the judge had to determine whether the Court could make a variation to a s 102 order. The mother submitted it could not, as the wording of s 125 did not expressly allow it. The judge found that the Court could make a variation order as circumstances could change and need variation during the period of an order. It would be too restrictive to limit this power. The Act does not define when orders should be varied, so the judge considered relevant case law and concluded that when there is a material change in circumstances orders, may be varied. The judge found there was a material change in circumstances in regards to Kelly as Kelly's views about her mother had changed to the extent that psychological help was necessary, and that Kelly would run away and possibly self-harm if forced to return. The judge elected to vary the s 102 order rather than make a new s 78 order. Oranga Tamariki was given the power to decide where Kelly should live, in order to support her best interests. A review and conference was scheduled for six weeks later in order to decide whether new directions needed to be made. Judgment Date: 1 June 2018. * * * Note: Names have been changed to comply with legal requirements * * *