Oranga Tamariki Act
In 2014 there were amendments made to the Children, Young Persons and Their Families Act (CYPFA) that introduced greater protections for children. Such changes were part of a wider belief that no single agency, acting alone, can protect vulnerable children. The re-stating of significant child care and protection principles in the Act means it remains child-centred. Some provisions of the amended Act come have already come into effect. However, there are still substantive changes to follow. Three areas of particular interest are:
Special Guardianship Order
From 1 July 2016 there were amendments to the OT Act to provide for a new Special Guardianship Order (SGO). This order provides for a person who has custody (and day to day care) of a child or young person to have additional and special rights.
If a SGO is made for a child this will mean a few things, in particular:
Special Guardianship is made with the intention of replacing any Guardianship or Parenting Orders made under the Care of Children Act BUT the person applying has to have “exercised all mechanisms available under the Care of Children Act to resolve disputes” with the other parent or guardian. There are other restrictions on the making of the order namely:
Subsequent Children
A subsequent child is a child born to a parent who:
In these circumstances the social worker needs to assess whether the parent(s) is likely to inflict or allow the same kind of harm to occur to the subsequent child. At the conclusion of the assessment the social worker needs to decide whether it is necessary to apply for a declaration. If the social worker decides a declaration is not necessary the social worker is still required to have the Family Court affirm that decision.
When assessing care and protection risk for a subsequent child the onus has shifts from the social worker needing to prove there are care and/or protection concerns to the parent proving that there are none in respect of the subsequent child.
This section has retrospective effect.
Finance and Other Assistance to Permanent Caregivers (s388A)
This section provides for the Chief-Executive to provide financial and other assistance to permanent caregivers.
Financial and other assistance must be provide if:
No Services Orders will now be made in favour of “permanent caregivers” (or the children in their care). Existing orders will lapse on their review dates. There will be a restriction on Support Orders when children are in permanent care.
A “permanent caregiver” is someone who is a special guardian or who:
Special Guardianship Order
From 1 July 2016 there were amendments to the OT Act to provide for a new Special Guardianship Order (SGO). This order provides for a person who has custody (and day to day care) of a child or young person to have additional and special rights.
If a SGO is made for a child this will mean a few things, in particular:
- There cannot be a s101 Custody Order made/in place for a child who is the subject of a SGO;
- The SGO will set out all access and other rights for each existing guardian;
- The Order must set out which guardianship rights are to be held exclusively by the Special Guardian and which are to be shared
- No existing guardian may apply to the court for assistance in resolving a dispute between guardians for those guardianship rights held exclusively by the Special Guardian;
- There can be no access order applications made by any other guardian;
- Leave of the court is required before there can be any application to vary or discharge a SGO (unless that application is made by MSD or all parties consent).
Special Guardianship is made with the intention of replacing any Guardianship or Parenting Orders made under the Care of Children Act BUT the person applying has to have “exercised all mechanisms available under the Care of Children Act to resolve disputes” with the other parent or guardian. There are other restrictions on the making of the order namely:
- The person applying has to have been unable to effectively exercise his or her guardianship or day to day care responsibilities; AND
- The inability is due to the conduct of the parents/other guardian, and the conduct forms a pattern of behaviour; AND
- The child or young person’s welfare is being “…threat[ened] or seriously disturbed” as a result.
Subsequent Children
A subsequent child is a child born to a parent who:
- has been convicted of murder, manslaughter or infanticide of a child who was in their care at the time of the child’s death; OR
- the Court has made, of an FGC has agreed a declaration is necessary (for particular reasons); AND
- Section 101 custody, or s110 guardianship or a Parenting Order has been made; AND
- the Court or a Family Group Conference has decided that “there is no realistic prospect” that the child will be returned to the parent’s care.
In these circumstances the social worker needs to assess whether the parent(s) is likely to inflict or allow the same kind of harm to occur to the subsequent child. At the conclusion of the assessment the social worker needs to decide whether it is necessary to apply for a declaration. If the social worker decides a declaration is not necessary the social worker is still required to have the Family Court affirm that decision.
When assessing care and protection risk for a subsequent child the onus has shifts from the social worker needing to prove there are care and/or protection concerns to the parent proving that there are none in respect of the subsequent child.
This section has retrospective effect.
Finance and Other Assistance to Permanent Caregivers (s388A)
This section provides for the Chief-Executive to provide financial and other assistance to permanent caregivers.
Financial and other assistance must be provide if:
- the need for assistance arises from the care and protection needs or the extraordinary health, education, or developmental needs of the child or young person; AND
- those needs are greater than it is reasonable to expect the permanent caregiver to meet; AND
- those needs cannot be met by existing sources of support under this Act or any other enactment, and are unlikely to be provided otherwise; AND
- it is reasonable in the circumstances for the chief executive to provide the assistance; AND
- the provision of assistance is consistent with any general or special directions (not inconsistent with this section) given to the chief executive in writing by the Minister.
No Services Orders will now be made in favour of “permanent caregivers” (or the children in their care). Existing orders will lapse on their review dates. There will be a restriction on Support Orders when children are in permanent care.
A “permanent caregiver” is someone who is a special guardian or who:
- is appointed as a guardian under the Care of Children Act where that appointment was made in substitution for a custody order (s78, s101) or guardianship order (s110) or a s140 care agreement; AND
- has the day to day care of the child pursuant to a parenting order or when there is no other guardian who has day to day care.