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Chief Executive of Oranga Tamariki v MQ [2021] NZFC 9089

Published 30 September 2021

Statutory plan — obligation of social workers — "reverse uplift" — cultural assessment — wellbeing and best interests — Te Tiriti o Waitangi/Treaty of Waitangi — Oranga Tamariki Act 1989, ss 2, 4A, 5, 7, 7AA, 11, 13, 14, 14AA, 15, 17, 73, 78, 86, 91, 101, 107, 110, 114, 120, 125, 128, 130, 135, 162, 166, 178, 180, 186 & 203 — Care of Children Act 2004, ss 4, 5, 27, 31 & 48 — Official Information Act 1982 — Family Court Rules 2002, r 150 — Evidence Regulations 2007 — United Nations Declaration of the Rights of Indigenous People, art 30 — MLM v Chief Executive Ministry of Social Development [2013] NZHC 1064 — Chief Executive of Child Youth & Family Services v JHB FC Dunedin FAM-2002-012-177, 8 February 2005 — L v P and CEOTMC [2020] NZFC 11387 — Hughes v MSD and Mitchell [2014] NZHC 3093 — M v CE of Oranga Tamariki [2019] NZHC 717 — Paterson v CE of Oranga Tamariki [2019] NZHC 444 — MEM v SBN and Chief Executive of the Ministry of Social Development, FAM-2001-019-000230, 22 June 2009 — E v G [2008] NZFLR 337 — Chief Executive of Oranga Tamariki v AR [2020] NZFC 4046 — Y v X [2003] 3 NZLR 261 (HC) — Skelton v Family Court at Hamilton [2007] 3 NZLR 994 (HC) — WAH v WTW and others [2010] NZCA 577 — B v Family Court and CEMSD HC Wanganui CIV-2008-483-32, 2 June 2009. This hearing was to determine several cross-applications by the parties in relation to a child. The child, now aged six, had been in the care of two non-kin caregivers for the past three years. During this time the caregivers had had involvement with several different social workers from Oranga Tamariki ("OT") as there was a s 101 custody order in favour of OT in place in respect of the child. Following reports by social workers which cited concerns of lack of cultural support and various other issues, the child had been taken from the caregivers and placed in the care of whanau, dubbed "reverse uplifts". This was in breach of a condition of the custody order preventing removal of the child. In an earlier hearing the child had been returned to the caregivers by order of the Court. The caregivers sought an order discharging the custody order in favour of OT; OT sought an order to discharge the condition preventing removal of the child; and the caregivers and whanau each sought orders under the Care of Children Act ("COCA") for day-to-day care of the child. The issues for determination were: whether the child was still in need of care and protection; what OT's reasons were behind the decision to remove the child; whether the caregivers had capacity to provide the child with care, and meet the child's global needs; whether changes could be made to provide for the child's cultural needs being met; if change of placement was needed to meet the child's cultural needs, what the likely impact on the child's emotional, mental, and psychological wellbeing would be; and whether the mother's access should be supervised. The Judge considered the evidence of the social workers and found that several of the social workers had engaged in psychologically abusive behaviour towards the child, had falsified reports, and had acted in a disingenuous manner towards the caregivers. OT had also failed in its obligations to assist the caregivers to ensure that the child's cultural needs were met. Although cultural needs were one aspect of the recent amendments to the Oranga Tamariki Act, they had to be considered against all of the other principles and considerations of the Act. The Judge considered that the child's need would be met with the current caregivers and that OT should assist with cultural capacity. The Judge dismissed the applications by OT to remove the condition restricting OT from removing the child from the caregivers, and by the caregivers and whanau for parenting orders under COCA. The Judge then discharged the custody order in favour of OT and granted a custody order in favour of the caregivers. The Judge made guardianship orders in favour of one each of the caregivers and whanau. Access orders were also made in favour of the child's biological mother and whanau. Finally the Judge made an order that OT was to prepare and file a support order plan. Judgment Date: 9 September 2021. * * * Note: names have been changed to comply with legal requirements. * * *