Chief Executive of Oranga Tamariki v Mahima [2021] NZFC 8742

Published 17 May 2022

Application for guardianship orders — special guardianship — change of surname — Māori child — mana tamaiti — whanaungatanga — whakapapa — Treaty of Waitangi — Oranga Tamariki Act 1989, ss 4, 5, 13, 101, 110 & 113A — Chief Executive v BH [2021] NZFC 210. This was an application for special guardianship orders in favour of the children's caregiver, and a request for change of surname. The children had been in the care of their whānau guardian since they were two years old and one day old respectively, after orders were made that they were in need of care and protection. The parents did not oppose the hearing and made no appearance, although the mother's relationship with the caregiver had progressed positively to the point where she was now having monthly contact with the children. A special guardian could be appointed pursuant to s 113A of the Oranga Tamariki Act ("OTA") only if the appointment was to ensure the long-term, safe, stable environment which enhanced the child's interests, and either if the child had no guardian or the special guardian replaces or is appointed alongside the existing guardian. The purposes and principles of the OTA must be taken into consideration, especially the paramount principle of the wellbeing and best interests of the child. The recent amendments to the OTA place emphasis on the principles of Te Tiriti o Waitangi and tikanga Māori concepts. These included mana tamaiti, whanaungatanga, and whakapapa. In considering the application, the Judge noted that the current placement immersed the children within their kinship group through marriage and biology, with their connections to whanau promoted and maintained. Though seemingly counterintuitive to make an order which limits the rights of the children's current guardians and parents by making special guardianship orders, the situation in this instance was held to be in the best interests and welfare of the children, and consistent with the principles and purposes of the OTA. The changes in surname sought were also supported by the Lawyer for the Children, as they were thought to both enhance and strengthen their connections to both maternal and paternal whanau. These changes were made to reflect both parent's surnames. The Judge discharged the existing custody order in favour of the Chief Executive and made an order under s 113A appointing the children's caregiver as their special guardian in addition to the existing guardians. Judgment Date: 1 September 2021 * * * Note: names have been changed to comply with legal requirements. * * *