Chief Executive of Oranga Tamariki v ZM [2020] NZFC 2

Published 10 June 2020

Application to discharge child from Oranga Tamariki custody — whanau placement — parenting order — guardianship — Treaty of Waitangi obligations — te ao Maori — whakapapa — paternity — wellbeing and best interests of child — Oranga Tamariki Act 1989, ss 4, 5, 7 AA, 13, 101, 120 & 127 — Care of Children Act 2004, ss 4 & 31 — Interpretation Act 1995, s 5(1 ). Oranga Tamariki had custody of a child after her mother passed away in an accident. The child had been living in the care of her aunt and the aunt now sought to discharge the child from Oranga Tamariki's custody, and implement parenting and guardianship orders in her favour instead. Oranga Tamariki supported the application. The only issue was raised by the lawyer for child, who submitted that both Oranga Tamariki and the Court had an obligation to investigate the child's paternity. It was believed that the child's father was the partner of the mother's sister. He had also recently passed away. There was no ability of the Court to compel investigations into paternity but Oranga Tamariki had an obligation under s 7 AA of the Oranga Tamariki Act to live up to the Crown's obligation under the Treaty of Waitangi. This imposed the duty to ensure the policies, practices, and services of Oranga Tamariki have regard to mana tamaiti and the whakapapa of Maori children and the whanaungatanga responsibilities of their whanau, hapu, and iwi. Oranga Tamariki's response to this was that the child's maternal family had said they would deal with the child's paternity as they saw appropriate and their mana and whanaungatanga should be respected. The Judge was satisfied the child's aunt was an appropriate person to facilitate the child's relationship with her paternal family. Given the circumstances, it would not be appropriate to approach a grieving widow to say her deceased husband had fathered her sister's child, as this could fracture and strain relationships. The Judge noted this decision was made with regard to this child's unique circumstances. The child was discharged from the custody of Oranga Tamariki and parenting and guardianship orders were made in respect of her aunt. Judgment Date: 6 January 2020. ***Note: names have been changed to comply with legal requirements.***