Chief Executive of Oranga Tamariki v JM [2018] NZFC 5835

Published 09 September 2019

Children in need of care and protection— interim custody orders — state engagement with Māori children— Te Tiriti— tūrangawaewae— right to sense of belonging— Oranga Tamariki Act 1989, ss 5, 13 101 & 102. This hearing was to determine the custody and care arrangements for six children. A declaration had previously been made determining they were in need of care and protection. Oranga Tamariki had developed a plan which had the outcome of all of the children being returned to their family, however also included a s 101 custody order. Te whānau had not provided Oranga Tamariki with enough information to allow the children to be placed with a family member. The respondent, the children's father, made it clear to the Court that he would not abide by any order made as he did not believe the Court had the right to make decisions in relation to his children. The Judge acknowledged the father's position as well as difficulties the courts have faced in engaging with and caring for Māori children. The older children had said they wanted to return to their whānau, expressing the feeling of loss of connection to the whare of their parents, whānau relationships and the land to which they are deeply connected. Although the children's parents refused to engage with the court process, their iwi had provided a cultural report showing ongoing work to address the issues that had resulted in the children needing care and protection in the first place. The Judge determined it was in the welfare and best interests of the children to be in the custody of family members, however this would require cooperation from their whānau. A s 102 order was placing the children in the interim custody of the Chief Executive of Oranga Tamariki, with the condition that the children must be placed with whānau, provided the proposed whānau members were adequately assessed and vetted in line with Oranga Tamariki's internal procedures and practices. As a s 102 interim custody order was made instead of a s101 order, no additional guardianship rights were given to Oranga Tamariki meaning guardianship rights remained with the children's parents. Judgment Date: 27 July 2018. * * * Note: Names have been changed to comply with legal requirements * * *