Gechan v Chief Executive of Oranga Tamariki [2019] NZFC 6738

Published 28 July 2021

Declaration — Family Court guardianship — interim custody order — day-to-day care and custody — disabled child — discharge of existing order — Oranga Tamariki Act 1989, ss 5, 6, 13, 14(1)(b), 78, 86, 91, 101, 110, 112, 115, 125, 127, 128, 139 & 141 — Care of Children Act 2004, ss 4, 5, 31 & 56 — United Nations onvention on the Rights of the Child, arts 3 & 9 — United Nations Convention on the Rights of Persons with Disabilities, arts 23, 24 & 25 — MEM v SBM and Anor C Rotorua FAM 2001-019-000230, 22 June 2009. The proceedings concerned a disabled child who had been living and receiving education at a disability service provider (the school), subject to a s 141 care agreement. The child required significant professional support as he had several physical and intellectual disabilities. The child was now in the custody of the Chief Executive of Oranga Tamariki (the respondent) and under the guardianship of the Family Court, after being uplifted from the school by his father (the applicant), in breach of the care agreement. The child was then returned to the school under an interim custody order. The applicant opposed the child's return to the school and the custody and guardianship orders, and sought the return of the child to his care. The respondent preferred that the child remain at the school, expressing concern that if the applicant had custody of the child, the child would not get proper education and would be isolated from necessary support and treatment. To succeed in his application, the applicant therefore needed to show that either the custody order had never been necessary, or that the respondent's care and protection concerns had now been resolved. The Court found that the respondent had established various concerns about the applicant's care of the child, including the applicant's failure to follow medical advice, his abusive or dismissive communications with care professionals, and his uplifting of the child from the school in breach of the care agreement. Although the applicant put forth options for the care and custody of the child and denied that there had ever been any need for a custody order, the Court found that there was still a risk that the child's care and protection needs would not be met in the care of the applicant. The applicant had been unable to provide the Court with a clear and detailed plan for the child's care, and would likely have trouble engaging properly with support workers and agencies. Further, he had a history of reneging on agreements relating to the care of the child. By contrast, the Court was satisfied that the school was well able to meet the child's needs. The application to dismiss the custody order was dismissed. The Court also ordered that the respondent be appointed as sole guardian to make decisions about the child's medical treatment.