Chief Executive of Oranga Tamariki v AR  NZFC 4046
Published 29 March 2021
Placement — interim custody order — child in need of care and protection — methamphetamine use — family violence — gang affiliation — subsequent child — attachment — relocation — additional guardian — contact plan — mana tamaiti — whakapapa — tipuna — whanaungatanga — tikanga Māori — kin matrix — whāngai — Treaty of Waitangi/Te Tiriti o Waitangi — Oranga Tamariki Act 1989, ss 2, 4, 4A, 5, 6, 7AA, 11, 13, 14, 78, 91, 92A, 101, 110, 120, 125, 127, 128, 129, 130, 178 & 187 — Care of Children Act 2004, ss 4 & 5 — Family Court Rules 2002, r 88 — United Nations Convention on the Rights of the Child, arts 5, 7, 8, 9, 14, 18 & 20 — MEM v SBN and Chief Executive of the Ministry of Social Development FC Rotorua FAM-2001-019-000230, 22 June 2009 — Barton-Prescott v Director-General of
Social Welfare  3 NZLR 179 — Surrey v Surrey  2 NZLR 581 — Nikau v Nikau  NZHC.
These proceedings were to determine custody, guardianship and parenting orders and placement of a child. There had been an interim custody order in place in favour of the Chief Executive of Oranga Tamariki ("OT") and a declaration had been made that the child was in need of care and protection. Prior to the child's birth his older siblings had been removed from the mother's care and placed in the care of their maternal grandmother. Since the child was very young he had been in the care of a family member of the man (who had since died) who had initially been believed to be the child's father; however there had been visits to the grandmother. DNA evidence gathered raised further questions around paternal parentage.
In determining where the child should be placed and who should be granted custody and guardianship, the Judge referred to recently-introduced provisions in the Oranga Tamariki Act ("the Act"), which require OT to recognise and provide a practical commitment to the principles of the Treaty of Waitangi, having regard to mana tamaiti, the whakapapa of Māori children and the whanaugatanga responsibilities of their whānau, hapū, and iwi. These are reaffirmed in the amendments to the purposes sections of the Act, which apply alongside the existing principles like the welfare and best interests of the child.
The Judge considered the circumstances and history in relation to both the current caregiver and the grandmother with whom the child's older siblings lived, and noted that the child had formed an attachment to the current caregiver. The child's cultural upbringing, whakapapa connections and sibling relationships would be fostered by being in the care of his grandmother, but there was a safety concern in relation to one of the siblings. With his current caregiver his tikanga and te reo Māori would be fostered, although not his whakapapa connections.
After balancing all the considerations, the Judge determined that the child would be safest for the time being in the care of his current caregiver, with a custody order in favour of OT. The Judge appointed OT and the current caregiver as additional guardians of the child. Further directions were made in relation to a safety assessment of the grandmother's home and contact proposal between the siblings and parents (once released from prison). The parenting order sought by the current caregiver was adjourned until the final custody order plan had been reviewed.
Judgment Date: 19 June 2020.
* * * Note: names have been changed to comply with legal requirements. * * *