Chief Executive of Oranga Tamariki v JA [2018] NZFC 4705

Published 11 November 2021

Declaration — custody — additional guardianship — determination of no realistic possibility of return — Oranga Tamariki Act 1989, ss 6, 11, 14, 18, 67, 73, 78, 101 & 110 — M v Attorney-General [2006] NZFLR 181 — Chief Executive of the Ministry of Social Development v SES FC Hamilton FAM-2010-019-183, 3 June 2011 — B (CA 204/97) v Department of Social Welfare (1998) 16 FRNZ 522. The Chief Executive of Oranga Tamariki – Ministry for Children ("OT") sought a declaration that five children were in need of care and protection, a final custody order, additional guardianship and a determination that there was no realistic possibility of the return of any of the children to their parents. All of the children had the same mother (the respondent), the four oldest children had the same father (who was not involved in the proceedings) and the father of the youngest child was the mother's partner. The respondent and the father of her older children previously lived in Australia. They came to the attention of the Department of Children's Services to the extent that the Australian department contacted OT to notify them about the family when the family moved to New Zealand. There were several family group conferences held with OT and domestic violence issues until the father left never to be heard from again. Shortly after this, the respondent met her new partner and her fifth and youngest child was born. This relationship was also marred by domestic violence. Police recorded fourteen domestic violence incidents occurring over four years. In 2016 OT was granted a temporary custody order until a plan best suiting the children could be put in place. The children were placed with various caregivers over two years. OT applied for a final custody order (among the other applications) in order to provide the children with certainty and safety. A child is in need of care and protection if they are being, or are likely to be harmed (whether physically, emotionally or sexually), ill-treated, abused or seriously deprived. A child is also in need of protection if their development or well-being is being, or is likely to be, impaired or neglected and the neglect or impairment is serious and avoidable. Once a declaration is made that a child is in need of care and protection the Court is able to make custody and guardianship orders. The judge listed evidence of the children being exposed the domestic violence. One of the children repeatedly turned up to school with bruises to his face and body. A doctor's examination concluded the injuries were consistent with child abuse. Two of the other children described incidents of the respondent's partner hitting them and their siblings. The respondent and her partner failed to finish or apply any parenting courses to their lives or make any steps towards being safe parents for the children. Four of the five children expressed a wish to stay with their caregivers and did not want to see their mother unless a social worker was present. The fifth child had disabilities meaning his views could not be given. It was found that the children were being physically and emotionally harmed by the exposure to domestic violence between their mother and her partner. A declaration was made that all of the children were in need of care and protection. Custody and additional guardianship were granted in favour of the Chief Executive of OT. The children were to remain with their current caregivers and the judge would review the situation in six months. Finally, a determination was made that there was no realistic possibility of the return of any children to the care of either the respondent or her partner. Judgment Date: 30 August 2018. * * * Note: Names have been changed to comply with legal requirements * * *