Children, Young Persons, and Their Families Act 1989

Reprint as at 18 October 2016

Coat of Arms of New Zealand

Children, Young Persons, and Their Families Act 1989

Public Act
 
1989 No 24
Date of assent
 
27 May 1989
Commencement
 
see section 1(2)
Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry of Social Development.

Contents

Title
1Short Title and commencement
2Interpretation
2ATransitional and savings provisions relating to amendments to this Act
2BMeaning of victim
3Act to bind the Crown
4Objects
5Principles to be applied in exercise of powers conferred by this Act
6Welfare and interests of child or young person paramount
7Duties of chief executive
8Parents and others to be informed of decisions
9Interpreters
10Duty of court and counsel to explain proceedings
11Duty of court and counsel to encourage and assist child or young person to participate in proceedings
12Duty of medical practitioner to minimise distress to child or young person
13Principles
14Definition of child or young person in need of care or protection
14AConduct outside New Zealand
15Reporting of ill-treatment or neglect of child or young person
16Protection of person reporting ill-treatment or neglect of child or young person
17Investigation of report of ill-treatment or neglect of child or young person
18Referral of care or protection cases to care and protection co-ordinator or youth justice co-ordinator by social workers or constables
18AAssessment of parent of subsequent child
18BPerson described in this section
18CConfirmation of decision not to apply for declaration under section 67
18DCourt declining to confirm decision
19Referral of care or protection cases to care and protection co-ordinator by other persons or by court
20Convening of family group conferences
21Care and protection co-ordinator to consult family, whanau, or family group on convening of family group conference
22Persons entitled to attend family group conference
23Care and protection co-ordinator to ensure that relevant information and advice made available to family group conference
24Care and protection co-ordinator to ascertain views of persons unable to attend family group conference
25Notification of convening of family group conference
26Procedure at family group conference
27Department to provide administrative services to family group conference
28Functions of family group conference
29Family group conference may make decisions and recommendations and formulate plans
29AContent of plan
30Care and protection co-ordinator to seek agreement to decisions, recommendations, and plans of family group conference
31Procedure where no agreement possible
32Records of decisions, recommendations, and plans of family group conferences to be made available to interested persons
33Department to maintain records of proceedings of family group conferences
34Chief executive to give effect to decisions, recommendations, and plans of family group conference
35Police to comply with decisions, recommendations, and plans of family group conference
36Family group conference to reconvene to review its decisions, recommendations, and plans
37Proceedings of family group conference privileged
38Proceedings of family group conference not to be published
39Place of safety warrants
40Warrant to remove child or young person
41Person executing warrant to produce evidence of authority and identity [Repealed]
42Search without warrant
43Placement of child or young person placed in custody of chief executive
44Parent or guardian may apply for release of or access to child or young person
45Child or young person placed in custody of chief executive to be brought before court within 5 days unless sooner released
46Powers of court where application made under section 44 or child or young person brought before court under section 45
47Social worker or constable to furnish report to Commissioner where child or young person released before required to be brought before court
48Unaccompanied children and young persons
49Court may order medical examination of child or young person
50Ex parte application for order for medical examination
51Court may impose conditions on order for medical examination
52Medical practitioner to prepare report on examination
53Medical examination of child or young person at request of social worker
54Child or young person entitled to have adult present
55Restrictions on internal examinations and examinations under general anaesthetic
56Medical practitioner to prepare report on examination
57Social worker to make report to chief executive
58Fees for reports prepared under section 52 or section 56
59Application for production of documents relevant to investigation of whether child or young person in need of care or protection
60Ex parte application for order for production of document
61Court may order document to be produced
62Section 61 to apply notwithstanding any enactment or rule of law
63Right to remove, retain, and make copies of document produced under section 61
64Document produced under section 61 not to be used for any other purpose
65Use of documents in subsequent proceedings
66Government departments may be required to supply information
67Grounds for declaration that child or young person is in need of care or protection
68Application for declaration that child or young person is in need of care or protection
69Joint applications
70No application to be made unless family group conference has been held
71Court may make declaration in absence of proof of responsibility for neglect or ill-treatment of child or young person
72Court not to make declaration unless family group conference held
73Court not to make declaration unless satisfied that child’s or young person’s need for care or protection cannot be met by other means
74Court may require parties to undergo counselling
75Counsellor to arrange meeting and submit report on outcome
76Fees
77Privilege
78Custody of child or young person pending determination of proceedings
79Persons who may be granted custody under section 78
80Effect of order made under section 78
81Placement of child or young person under order made under section 78
82Child or young person may be returned to person who previously had care
83Orders of court on making of declaration
84Power to make other orders where declaration made on ground of child’s offending
85Recall to come before court
86Services orders
86AInterim services orders
86BNo services orders in respect of permanent caregivers
87Restraining orders
88Interim restraining orders
89Offence to contravene restraining order or interim restraining order
90When restraining order shall cease to have effect
91Support orders
92Interim support orders
92ARestriction on support orders where there is permanent caregiver
93Duty to provide support
94Duty of chief executive to appoint social worker to provide support
95Conditions of support order or interim support order
96Power of court to impose additional conditions
97Court may impose conditions in respect of parent, guardian, etc, of child or young person
98Court not to impose condition requiring medical treatment without person’s consent
99Person or organisation providing support to child or young person to report to court
100Failure to observe conditions of support order
101Custody orders
102Interim custody orders
103Court may impose conditions to facilitate return of child or young person
104Effect of custody order
105Living arrangements for child or young person placed in custody of chief executive
106Living arrangements where child or young person placed in custody of iwi social service, etc
107Person in whose custody child or young person is placed may determine access rights in absence of court order
108When custody order shall cease to have effect
109Custody to revert on expiry of order
110Guardianship orders
110AApplication for change of guardianship order
111Person not to be appointed as guardian without consent
112Chief executive may be appointed as guardian for specific purpose
113Court may impose conditions to facilitate return of child or young person
113ASpecial guardianship orders
113BEffect of special guardianship order
114Effect of guardianship order
115Disputes between guardians
116Review of guardian’s decision or refusal to give consent
117When guardianship orders to cease to have effect
118Reversion of guardianship on expiry or discharge of guardianship order
119Guardianship of child or young person on death of person appointed as guardian under this Act
120Restriction on making of guardianship and parenting orders under Care of Children Act 2004
121Court may make orders for access and exercise of other rights by parents and other persons
122Enforcement of access rights
123Power of entry
124Person executing warrant to produce evidence of authority and identity [Repealed]
125Application for variation or discharge of orders made under this Part
126Persons who may apply for variation or discharge of order
126ACourt may direct holding of family group conference to consider application
127Court may vary or discharge order
128Court to obtain and consider plan for child or young person before making certain orders
129Court to direct who is to prepare plan
130Content of plans
131Adjournment for purposes of obtaining plan
132Access to plans
133Court may order plan not to be disclosed
134Court to set date for review of plan
135Review of plan
136Access to reports and revised plans
137Court to consider report and make directions
138Court to set date for further review of plan
139Agreements for temporary care of children and young persons by chief executive, iwi social services, etc
140Agreements for extended care of children and young persons by chief executive, iwi social service, etc
141Agreements for extended care of severely disabled children and young persons
142Agreements with persons providing residential disability care
143All parents or guardians not required to be party to agreement
144Agreement not to be made without consent of child or young person
145Agreement not to be made without approval of family group conference
146Form and terms of agreements
147Further restrictions on making of agreements
148Effect of agreements
149Agreement may provide for consent to medical treatment
150Jurisdiction of Family Courts
151Jurisdiction of District Courts in cases of urgency
152Service of application for declaration
153Notice of application for declaration to be given to child or young person
154Service of application for variation or discharge of order
155Court may dispense with service
156Court may require party to attend hearing
157Court may require child or young person to attend hearing
158Applications may be heard together
159Appointment of lawyer to represent child or young person in proceedings
160Appointment of lawyer to assist court
161Further provisions relating to appointment under section 159 or 160
162Payment of lawyer appointed under section 159 or 160
163Appointment of lay advocate
164Further provisions relating to lay advocate
165Payment of lay advocate
166Persons entitled to be present at hearing of proceedings in Family Court
167Child or young person may give evidence in private
168Other powers of court to hear proceedings in private or exclude persons not affected
169Right to make representations
170Calling of mediation conference
171Objectives of mediation conference
172Procedure at mediation conference
173Presiding Judge to make record of proceedings at mediation conference
174Power of presiding Judge to make consent orders
175Power to require attendance at mediation conference
176Privilege
177Presiding Judge may hear subsequent proceedings
178Medical, psychiatric, and psychological reports
179Further provisions relating to medical, psychiatric, and psychological examinations
180Fees for reports prepared under section 178
181Court may order examination to be carried out in psychiatric hospital
182Release of child or young person from psychiatric hospital where detention no longer required
183Review of order made under section 178 or section 181
184Court may indicate matters to be dealt with in report
185Sections to have effect in place of sections 38 to 44 of Criminal Procedure (Mentally Impaired Persons) Act 2003
186Report by social worker
187Cultural and community reports
188Privilege for reports
189Adjournment for purposes of obtaining report
190Reports may be made orally
191Access to reports
192Court may order report not to be disclosed
193Right to tender evidence on report
194Court may call person making report as witness
195Evidence [Repealed]
196Special provisions applying to disclosure of communications to medical practitioner or clinical psychologist
197Standard of proof
198Special provisions applying to applications for declaration on ground of child’s offending
199Power of court to call witnesses
200Court to ensure that application for declaration that child or young person in need of care or protection dealt with promptly
201Adjournments
202Orders by consent
203Costs
204Rehearings
205Preventing removal of child or young person from New Zealand
206Offence to take child or young person out of New Zealand where proceedings pending
206ALeave required in certain cases to commence substantially similar proceedings
206BPower to dismiss proceedings
207Vexatious proceedings
207APurpose of Part
207BInterpretation
207CMeaning of protection order
207DChief executive may transfer protection order
207EChief executive to have regard to certain matters
207FConsent required
207GConsultation required
207HConditions and duration of order to be transferred
207INotice of decision to transfer
207JReview of decision to transfer
207KCourt may order transfer of protection order
207LService of application
207MCourt to have regard to certain matters
207NTerms, conditions, and duration of order to be transferred
207OAppeal against order for transfer
207PReview of order for transfer
207QCourt may order transfer of protection proceedings
207RService of application
207SCourt to have regard to certain matters
207TInterim order
207UAppeal against order for transfer
207VReview of order for transfer
207WTransferred proceedings discontinued
207XRegistration of orders and proceedings to be transferred to New Zealand
207YNotice of registration
207ZEffect of registration
207ZACourt to obtain plan for child or young person
207ZBHearing and determination of transferred proceedings
207ZCAboriginal or Torres Strait Islander children or young persons
207ZDApplication to have registration revoked
207ZEService of application
207ZFRevocation of registration
207ZGNotice of revocation
207ZHEffect of revocation on plan and documents
207ZIExpiry and revival of order transferred from New Zealand
207ZJExpiry and revival of ancillary orders
207ZKTransfer of court file
207ZLDisclosure of information to interstate officer
207ZMInformation disclosed to chief executive by interstate officer
207ZNDepartment not to disclose information identifying notifier
207ZOWritten consent of interstate officer
208Principles
209Consideration of warning as alternative to prosecution
210Administration of warning
211Formal Police caution
212Notice of warning or caution
213Evidence of warnings and formal Police cautions and of offences to which they relate not admissible in criminal proceedings
214Arrest of child or young person without warrant
214AArrest of child or young person in breach of bail condition
215Child or young person to be informed of rights before questioned by enforcement officer
215ARights to be explained to child or young person on request
216Enforcement officer to explain rights to child or young person who is to be charged with offence
217Rights to be explained to child or young person who is arrested
218Explanations to be given in manner and language appropriate to age and level of understanding of child or young person
219Explanations not required if child or young person already informed of rights
220Other enactments requiring information or particulars not affected
221Admissibility of statements made by children and young persons
222Persons who may be nominated for the purposes of section 221(2)(b) or (c)
223Section 221 not to apply where statement made before requirements of that section can be met
224Reasonable compliance sufficient
225Other enactments relating to admissibility of statements or confessions, or requiring information or particulars to be given, not affected
226Evidence of communications during consultation not admissible
227Child or young person at enforcement agency office for questioning in relation to commission or possible commission of offence or arrested entitled to consult with barrister or solicitor
228Entitlement of child or young person to consult with barrister or solicitor where taken to hospital following arrest or questioned at hospital
229Parents or guardians or other persons to be informed where child or young person at enforcement agency office for questioning in relation to commission or possible commission of offence or is arrested
230Evidence of communications during visit not admissible
231Persons who may be nominated for the purposes of section 229(1)(a)
232Notice of offence with which child or young person charged to be given to parents or guardians or other persons having care of child or young person
233Breath-alcohol and blood-alcohol provisions of Land Transport Act 1998 not affected
234Custody of child or young person following arrest
235Child or young person who is arrested may be placed in custody of chief executive
236Young person who is arrested may be detained in Police custody
237Child or young person who is arrested to be brought before court as soon as possible
238Custody of child or young person pending hearing
239Restrictions on power of court to order child or young person to be detained in custody
239AExpiry of sections 238(1A) to (1C), and 239(3)
240Conditions of bail
241Review of orders made under section 238
242Order under section 238 sufficient authority for detention of child or young person
243Other powers to grant bail not affected
244Immigration Act 2009 (other than sections 342 to 354) not affected
245Proceedings not to be instituted against young person unless youth justice co-ordinator consulted and family group conference held
246Procedure where young person arrested and brought before court
247Youth justice co-ordinator to convene family group conference
248Family group conference not required in certain cases
249Time limits for convening of family group conferences
250Consultation on convening of family group conference
251Persons entitled to attend family group conference
252Child or young person in custody to be permitted to attend family group conference
253Notification of convening of family group conference
254Youth justice co-ordinator to ascertain views of persons unable to attend family group conference
255Youth justice co-ordinator must ensure that relevant information and advice made available to family group conference
256Procedure at family group conference
257Department to provide administrative services to family group conferences
258Functions of family group conference
259Family group conference to ascertain whether child or young person admits offence
259AFamily group conference must consider attendance at parenting education, mentoring, and alcohol or drug rehabilitation programmes
260Family group conference may make decisions and recommendations and formulate plans
261Family group conference may make decisions, recommendations, and plans relating to care or protection of child or young person
262Youth justice co-ordinator to make record of decisions, recommendations, and plans of family group conference
263Youth justice co-ordinator to seek agreement to decisions, recommendations, and plans of family group conference
264Procedure where no agreement possible
265Records of decisions, recommendations, and plans of family group conference to be made available to interested persons
266Department to maintain records of proceedings of family group conferences
267Enforcement agencies to comply with decisions, recommendations, and plans of family group conference
268Chief executive to give effect to decisions, recommendations, and plans of family group conference
269Chief executive may provide financial assistance to enable decisions, etc, of family group conference to be carried out
269AChief executive to ascertain whether victims wish to be informed of progress in implementing decisions, recommendations, and plans
270Family group conference may reconvene to review its decisions, recommendations, and plans
271Proceedings of family group conference privileged and not to be published
272Jurisdiction of Youth Courts and children’s liability to be prosecuted for criminal offences
272AModifications and procedure for child aged 12 or 13 years charged with offence in section 272(1)(b) or (c)
273Manner of dealing with offences (other than murder or manslaughter)
274Young person may elect trial by jury in certain cases
275Manner of dealing with offence of murder or manslaughter, or where jury trial to be held
276Child or young person may forgo right to jury trial and elect to have proceedings determined by Youth Court
277Provisions applicable where child, young person, or adult jointly charged
277APlace and level of trial court for jury trial
278Parent or guardian may be summoned to appear when young person charged with offence
279Court to consider recommendations of family group conference
280Court may refer case to care and protection co-ordinator to determine whether matter should be dealt with under Part 2
280ACourt may refer case to person who commenced proceeding to be dealt with as child offending care or protection proceeding under Part 2
281Court not to make orders unless family group conference held
281ACourt to consider whether family group conference should be held
281BCourt may direct holding of family group conference at any time
282Power of court to discharge charge
283Hierarchy of court’s responses if charge against young person proved
284Factors to be taken into account on sentencing
285Restrictions on power of court to make certain orders under section 283
286Person or organisation not to be required to supervise young person without consent
286AParenting education, mentoring, or alcohol or drug rehabilitation programme order: general requirement for provider to have first agreed to provide programme concerned, and making of order subject to conditions
287Reparation limited to direct loss
288Order in respect of parent or guardian or other person having care not to be made without first informing of proposal to make order and giving opportunity to make representations
289Court must impose least restrictive outcome adequate in circumstances
290Judge must record in writing reasons for supervision with residence or transfer order
290ARestriction on who may provide residential component of specified programme or activity
291Transfer of other charges to District Court or High Court for sentence
292Whole or part of fine may be awarded to victim of offence suffering physical or emotional harm [Repealed]
293Effect of order imposing fine or requiring payment of compensation or restitution or forfeiture of property
293ADisqualification from driving
294Demerit points
295Recall to come before court
296Expiry of orders
296AOrders to which sections 296B and 296E apply
296BFailure to comply
296CWarrant to have young person arrested and brought before court
296DExecution of warrant under section 296C
296EVariation and cancellation
296FInterim suspension order
296GIntensive supervision order in response to young person’s non-compliance with judicially monitored condition of supervision or supervision with activity order
296HDuty of chief executive to provide for supervision under intensive supervision order
296IConditions of intensive supervision order
296JAdditional conditions imposing curfew with or without electronic monitoring of compliance
296KElectronic monitoring
296LPowers to detain and return, and arrest, young person breaching curfew condition
296MReview of intensive supervision order
297Powers of court in dealing with young person subject to order made under this Part
297AWritten statements of terms, and how court may respond to failures to comply
297BNature of programmes, who may consent to medical treatment, and related custody orders
298Community work order
299Failure to comply with community work order [Repealed]
300Variation or cancellation of community work order [Repealed]
301Procedural provisions relating to application under section 300 [Repealed]
302Application of Accident Compensation Act 2001 to young persons performing work under community work order
303Effect of subsequent sentence
304Duty of chief executive to provide for supervision
305Conditions of supervision order
306Power of court to impose additional conditions
307Supervision with activity order
308Conditions of supervision with activity order
308AJudicial monitoring of compliance with conditions of supervision or supervision with activity order
308BEffect of judicial monitoring direction
308CProgress reports
309Failure to observe conditions of supervision order or supervision with activity order [Repealed]
310Suspension, cancellation, and variation of supervision order or supervision with activity order [Repealed]
311Supervision with residence order
312Effect of supervision with residence order
313Court may make orders for access and exercise of other rights by parents and other persons
314Court must in certain cases release young person from custody before expiry of supervision with residence order
315Supervision with residence order to cease to run if young person absconds
316Court may cancel supervision with residence order if young person absconds
317When supervision with residence order ceases to have effect
318Search without warrant
319Medical treatment of young person in custody of chief executive
319AOrders must be reviewed
320Report to be made to court on effectiveness of certain orders
321Application of Acts relating to bail, criminal disclosure, criminal procedure, victims’ rights, and District Courts
322Time for instituting proceedings
323Appointment of youth advocate to represent child or young person
324Further provisions relating to youth advocate
325Payment of youth advocate
326Appointment of lay advocate
327Functions of lay advocate
328Further provisions relating to lay advocate
328APayment of lay advocate
329Persons entitled to be present at hearing
330Right to make representations in Youth Court
331Matters before court to be dealt with separately
332Arrangements for hearing of proceedings in Youth Court
333Medical, psychiatric, and psychological reports
334Report by social worker
335Report to be accompanied by plan
336Court may obtain cultural or community report
337Reports may be made orally
338Privilege for reports
339Access to reports and plans under this Part
340Written statement of terms of certain orders to be given to young person
341Rights of appeal against decisions of Family Courts
342Procedure for bringing appeal [Repealed]
343Notice of appeal to be given to local principal manager
344Notice of appeal not to affect orders unless court otherwise directs
345Interim custody order pending appeal
346Procedure on appeal
347Appeal to Court of Appeal
348Determination of appeals
349Court may refer appeals back for reconsideration [Repealed]
350Decision of High Court and Family Court to be sent to chief executive
351Appeals from decisions of Youth Court by young person
352Appeal by parents or guardians or other persons having care of young person
353Appeal by persons other than young person dealt with in Youth Court
354Appeal on a point of law only
355Application of Part 6 of Criminal Procedure Act 2011
356Effect of notice of appeal on certain orders
357Application of section 329 to hearing of appeal
358Presence of young person at hearing of appeal
359Presence of parents at hearing of appeal from decisions of Youth Court
360Notification of appeal and result of appeal to local principal manager
361Application of sections 362, 364, 365, 387, 390 to 392, 394, and 395
362Children and young persons may be placed in care of approved persons
363Payment to person or organisation providing care
364Authority to establish residences
364AResidence management committees [Repealed]
364BFunctions of residence management committees [Repealed]
365Chief executive may place children and young persons in residences
366Closing of residences and transfer of residents
367Secure care
368Grounds for placement in secure care
369Notice to be given where child or young person placed in secure care
370Time limits on detention in secure care
371Application for approval for continued detention in secure care
372Registrar may authorise continued detention in secure care until application is determined
373Persons entitled to be present at hearing of application under section 371
374Right to make representations
375Hearing to be held in residence wherever practicable
376Court may authorise continued detention in secure care
377Renewal of approval for continued detention in secure care
378Notification of decision of court
379Review of decision to grant or renew approval
380Application for review of detention in secure care
381Notice of application for review of detention in secure care
382Disposal of application for review of detention in secure care
383Review of refusal of application
383ALapse of authority for detention in secure care
384Discipline of children and young persons in residences
384AInterpretation
384BInspection of mail
384CChild or young person may be searched to detect unauthorised items
384DUse of dogs for searching
384EChild or young person may be strip searched
384FExplanation of purpose and consequences of inspections and searches
384GRestrictions on searches
384HUse of force in carrying out search
384IRecording of inspections and searches
384JChild or young person may make complaint
384KPower to seize articles, etc, found on inspection or search
385Children and young persons who abscond
386Search warrants
386AAdvice and assistance for people moving from care to independence
387Chief executive empowered to make payments for benefit of children and young persons
388Financial and other assistance in respect of children and young persons subject to orders made under this Act
388AFinancial and other assistance to permanent caregivers
389Financial assistance in other cases
389AReview of decisions about financial or other assistance to permanent caregivers
389BAppeal against decisions about financial or other assistance to permanent caregivers
390Power to control finances of young persons under guardianship or in custody
391Imposition of charge to meet expenses of providing care for children and young persons
392Manager may be appointed under Protection of Personal and Property Rights Act 1988 to manage property of children and young persons subject to guardianship or custody order
[Repealed]
393Recovery of cost of maintenance of children and young persons in care [Repealed]
394Limitation on tortious liability of chief executive and other persons having care of child or young person
395Police to be notified of deaths
395AVictims to be notified of deaths
396Approval of iwi social services, cultural social services, and child and family support services
397Restrictions on granting of approval
398Chief executive not to decline application without giving applicant opportunity to make submissions
399Revocation of approval
400Assessment of iwi social services, etc
401Powers of persons carrying out assessment of iwi social service, etc
402Convener of iwi social service or cultural social service to have power of decision for purposes of this Act
403Approval of community services
404Chief executive not to decline application without giving applicant opportunity to make submissions
405Revocation of approval
406Financial assistance to community services
407Chief executive may contract with community services for provision of services
408Assessment of community services
409Powers of person carrying out assessment of community service
[Repealed]
410Commissioner for Children [Repealed]
411Functions of Commissioner [Repealed]
412Powers of Commissioner [Repealed]
413Commissioner may regulate own procedure [Repealed]
414Commissioner not to make adverse comment unless opportunity to be heard given [Repealed]
415Annual report [Repealed]
416Appointment of Commissioner [Repealed]
417Term of office and conditions of employment of Commissioner [Repealed]
418Removal from office [Repealed]
419Superannuation or retiring allowances [Repealed]
420Proceedings privileged [Repealed]
421Commissioner deemed to be official [Repealed]
422Money to be appropriated by Parliament for purposes of this Part [Repealed]
423Appointment of care and protection co-ordinators
424Duties of care and protection co-ordinator
425Appointment of youth justice co-ordinators
426Duties of youth justice co-ordinator
427Delegation of functions of care and protection co-ordinator or youth justice co-ordinator to social worker
428Care and protection resource panels
429Functions of care and protection resource panels
430Care and protection resource panels may regulate own procedure
431Annual report
432Fees and allowances
433Establishment of Youth Courts
434Principal Youth Court Judge
435Designation of Youth Court Judges
435AStationing of Judges and sittings of courts
436District Court Judge may exercise jurisdiction in absence of Youth Court Judge
437Notice of proceedings and orders to be given to parents or guardians or other persons having care of child or young person
437APublication of reports of proceedings under Part 2, Part 3A, or section 371
438Publication of reports of proceedings under Part 4
439Proceedings not invalid because of mistake as to age
440Proceedings not to be questioned for want of form
441Court may determine age of child or young person in absence of evidence
442No court fees payable
443Issue and execution of warrants
444Liability of persons providing reports
445Witnesses expenses
445APerson executing warrant to produce evidence of authority and identity
445BAuthority to use facsimile copy of warrant
445CIssue and execution of warrants
445DCertain provisions of Search and Surveillance Act 2012 apply to some warrants
446Offences
446AChildren and young persons to whom section 446B applies
446BOffences available if child or young person is subject of certain protection orders or proceedings under Part 3A
447Regulations
448Rules of procedure
448ATransitional provisions relating to rules
449Consequential amendments
450Adoption Act 1955 amended
451Department of Social Welfare Act 1971 consequentially amended [Repealed]
452Local Government Act 1974 consequentially amended [Repealed]
453Summary Offences Act 1981 amended
454Criminal Justice Act 1985 amended
455Child Care Regulations 1985 consequentially amended
456Repeals and savings
456APurpose and application
457Complaints [Repealed]
458Informations [Repealed]
459Guardianship orders [Repealed]
460Plans and reports to be furnished to court in respect of orders deemed to be guardianship orders under this Act [Repealed]
461Review of orders deemed to be guardianship orders under this Act [Repealed]
462Applications for review of guardianship orders [Repealed]
463Supervision orders [Repealed]
464Applications for review of supervision orders [Repealed]
465Complaints for failure to observe conditions of supervision order [Repealed]
466Agreements for control of child or young person by the Director-General [Repealed]
467Homes registered or deemed to be registered under Part 9 of Children and Young Persons Act 1974 [Repealed]
467ABuilding Act 2004
468Agreements for assumption of care of child or young person by manager of home or recognised system of foster care [Repealed]
469Administration of property by Public Trustee [Repealed]
Reprint notes

An Act to reform the law relating to children and young persons who are in need of care or protection or who offend against the law and, in particular,—

(a)

to advance the well-being of families and the well-being of children and young persons as members of families, whanau, hapu, iwi, and family groups:

(b)

to make provision for families, whanau, hapu, iwi, and family groups to receive assistance in caring for their children and young persons:

(c)

to make provision for matters relating to children and young persons who are in need of care or protection or who have offended against the law to be resolved, wherever possible, by their own family, whanau, hapu, iwi, or family group:

(d)
[Repealed]

(e)

to repeal the Children and Young Persons Act 1974

Title paragraph (d): repealed, on 26 November 2003, by section 37 of the Children’s Commissioner Act 2003 (2003 No 121).

 
1 Short Title and commencement

(1)

This Act may be cited as the Children, Young Persons, and Their Families Act 1989.

(2)

This Act shall come into force on 1 November 1989.

2 Interpretation

(1)

In this Act, unless the context otherwise requires,—

care and protection co-ordinator means a care and protection co-ordinator appointed by the chief executive pursuant to section 423

care and protection resource panel means a care and protection resource panel established pursuant to section 428

chief executive means, subject to any enactment, the person holding office as the chief executive of the department

child means a boy or girl under the age of 14 years

child abuse means the harming (whether physically, emotionally, or sexually), ill-treatment, abuse, neglect, or deprivation of any child or young person

child and family support service means any organisation or body approved by the chief executive as a child and family support service pursuant to section 396(3)

Commissioner means the Children’s Commissioner continued under section 6 of the Children’s Commissioner Act 2003

community service means any service approved by the chief executive as a community service pursuant to section 403

convene, in relation to a family group conference, means to take the appropriate steps under sections 20 and 25 (in the case of a family group conference authorised or required under Part 2) or under sections 247 and 253 (in the case of a conference authorised or required under Part 4) in order to cause the conference to meet; and reconvene has a corresponding meaning

court, in relation to Parts 2, 3, and 3A, means a Family Court, and in relation to Parts 4 and 5, means a Youth Court

cultural social service means any incorporated body approved by the chief executive as a cultural social service pursuant to section 396(2)

custody means the right to possession and care of a child or young person

department means the department that is, with the authority of the Prime Minister, for the time being responsible for the administration of this Act

document means a document in any form; and includes—

(a)

any writing on any material:

(b)

any information recorded or stored by means of any tape-recorder, computer, or other device; and any material subsequently derived from information so recorded or stored:

(c)

any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:

(d)

any book, map, plan, graph, or drawing:

(e)

any photograph, film, negative, tape, or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced

enforcement agency means—

(a)

the New Zealand Police:

(b)

any department (as defined in section 2(1) of the State Sector Act 1988):

(c)

a local authority

enforcement agency office means—

(a)

a Police station:

(b)

any premises occupied by—

(i)

any department (as defined in section 2(1) of the State Sector Act 1988):

(ii)

any local authority

enforcement officer means—

(a)

any constable:

(b)

an enforcement officer (as defined in section 2(1) of the Land Transport Act 1998):

(c)

any person acting in the course of his or her official duties (being duties that consist of or include the detection, investigation, or prosecution of offences) as an officer or employee of—

(i)

the Public Service (as defined in section 2(1) of the State Sector Act 1988); or

(ii)

a local authority

ex parte application means an application made without notice to the respondent to the application

family group, in relation to a child or young person, means a family group, including an extended family,—

(a)

in which there is at least 1 adult member—

(i)

with whom the child or young person has a biological or legal relationship; or

(ii)

to whom the child or young person has a significant psychological attachment; or

(b)

that is the child’s or young person’s whanau or other culturally recognised family group

family group conference,—

(a)

in relation to Part 2, means a meeting convened or reconvened by a care and protection co-ordinator in accordance with section 20:

(b)

in relation to Part 4, means a meeting convened or reconvened by a youth justice co-ordinator in accordance with section 247 or section 270 or section 281 or section 281B

family resource centre means any premises that provide temporary accommodation for a child or young person and any person who has the care of that child or young person, where that accommodation is provided as part of a programme designed to provide assistance to that person

guardianship has the meaning given to it by section 15 of the Care of Children Act 2004; and guardian has a corresponding meaning, and includes, without limitation, a person who is a guardian by virtue of this Act

iwi social service means any incorporated body approved by the chief executive as an iwi social service pursuant to section 396(1)

lay advocate does not include any person who is a barrister or solicitor

medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine

Minister means, subject to any enactment, the Minister who is, with the authority of the Prime Minister, for the time being responsible for the administration of this Act

near relative means a grandparent, aunt, uncle, brother, or sister; and includes a brother or sister of the half-blood as well as of the full-blood

parent, in relation to a child, includes a step-parent of the child, but only if the step-parent shares responsibility for the day-to-day care of the child with a parent of the child

permanent caregiver, in relation to a child or young person, means—

(a)

a special guardian; or

(b)

a person—

(i)

appointed as a guardian of the child or young person under section 27 of the Care of Children Act 2004, where that appointment was made in substitution for an order under section 78, 101, or 110 of this Act, or for an agreement under section 140 of this Act; and

(ii)

who has the day-to-day care of the child or young person pursuant to a parenting order made under section 48 of the Care of Children Act 2004 or because there is no other guardian who has the day-to-day care of the child or young person

psychiatric hospital means a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992

psychologist means a health practitioner who is, or is deemed to be, registered with the Psychologists Board continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of psychology

residence

(a)

means any residential centre, family home, group home, foster home, family resource centre, or other premises or place, approved or recognised for the time being by the chief executive as a place of care or treatment for the purposes of this Act; and

(b)

includes any place of care or treatment, so approved, whether administered by the Crown or not; but

(c)

does not include—

(i)

a prison; or

(ii)

a psychiatric hospital or a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or

(iii)
[Repealed]

(iv)

a children’s health camp operated by Children’s Health Camps—The New Zealand Foundation for Child and Family Health and Development

secure care, in relation to a child or young person in a residence established under section 364, means containment in that residence within a locked room or enclosure with visible physical barriers

social worker means a person employed under Part 5 of the State Sector Act 1988 in the department as a social worker

special guardian means a guardian of a child or young person appointed under section 110 who is appointed as a special guardian under section 113A

subsequent child means a child, born or unborn, who has a parent who is a person described in section 18B

traffic offence means—

(a)

any offence against the Road User Charges Act 2012, the Land Transport Act 1998, or the Land Transport Management Act 2003 or against any regulation, rule, or bylaw made under any of those Acts:

(b)

any offence against any regulation, rule, or bylaw made under any other Act if the offence relates to the use of motor vehicles or parking places or transport stations

victim has the meaning given in section 2B

working day means a day of the week other than—

(a)

Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and

(ab)

if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and

(b)

a day in the period commencing with 25 December in a year and ending with 15 January in the following year; and

(c)

in relation to a requirement to file a document with any court or to supply a document before a sitting of any court,—

(i)

the day observed as the anniversary of the province in which the court is situated; and

(ii)

any other day that is observed by the court as a court holiday

young person means a boy or girl of or over the age of 14 years but under 17 years; but does not include any person who is or has been married or in a civil union

youth advocate means a barrister or solicitor appointed pursuant to section 323 to represent a child or young person

youth justice co-ordinator means a youth justice co-ordinator appointed by the chief executive pursuant to section 425.

(2)

Where any proceedings are being considered or have been taken in respect of any offence allegedly committed by a person when that person was a child or young person, the age of that person at the date of the alleged offence shall be that person’s age for the purpose of—

(a)

whether there is jurisdiction to take any proceedings in respect of that alleged offence, and, subject to paragraph (d), which court has jurisdiction in respect of proceedings that may be taken; and

(b)

the proceedings taken,—

but nothing in this subsection shall—

(c)

require or authorise any family group conference in respect of the alleged offence before or at any stage of the proceedings if, at the time the conference would otherwise be required, that person has attained the age of 18 years; or

(d)

require any proceedings to be taken in a Youth Court if, at the time the charging document is filed, that person has attained the age of 18 years; or

(e)

derogate from the provisions of section 6 of the Sentencing Act 2002 (which shall apply in respect of proceedings under Part 4 as if the proving of a charge was a conviction).

(3)

Where any charging document is filed in a District Court pursuant to subsection (2)(d), section 322 shall apply, with all necessary modifications, to the proceedings.

(4)

Where any proceedings have been taken under Part 2 in respect of any alleged incident, the age of any child or young person at the date of the alleged incident shall be that person’s age for the purpose of the proceedings.

Compare: 1974 No 72 s 2; 1981 No 113 s 50(4); 1982 No 135 s 2; 1983 No 129 s 2

Section 2(1) care and protection co-ordinator: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) chief executive: inserted, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) child abuse: inserted, on 8 January 1995, by section 2(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 2(1) child and family support service: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) Commissioner: replaced, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 2(1) community service: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) convene: inserted, on 8 January 1995, by section 2(2) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 2(1) court: amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 2(1) Cultural Authority: repealed, on 8 January 1995, by section 2(3) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 2(1) cultural social service: inserted, on 8 January 1995, by section 2(3) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 2(1) cultural social service: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) department: replaced, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) Director-General: repealed, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) enforcement officer paragraph (a): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 2(1) enforcement officer paragraph (b): replaced, on 1 March 1999, by section 215(1) of the Land Transport Act 1998 (1998 No 110).

Section 2(1) family group conference paragraph (b): amended, on 8 January 1995, by section 2(4) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 2(1) guardianship: amended, on 1 July 2014, by section 6(2) of the KiwiSaver (Vulnerable Children) Amendment Act 2014 (2014 No 42).

Section 2(1) guardianship: amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 2(1) indictable offence: repealed, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

Section 2(1) Iwi Authority: repealed, on 8 January 1995, by section 2(5) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 2(1) iwi social service: inserted, on 8 January 1995, by section 2(5) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 2(1) iwi social service: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) medical practitioner: inserted, on 18 September 2004, by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48).

Section 2(1) Minister: replaced, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) near relative: amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

Section 2(1) parent: replaced, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

Section 2(1) permanent caregiver: inserted, on 30 June 2016, by section 4 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 2(1) psychiatric hospital: replaced, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) psychologist: inserted, on 18 September 2004, by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48).

Section 2(1) purely indictable offence: repealed, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

Section 2(1) residence paragraph (a): amended, on 1 October 2010, by section 5 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010 (2010 No 2).

Section 2(1) residence paragraph (a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) residence paragraph (c)(i): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 2(1) residence paragraph (c)(ii): replaced, on 1 September 2004, by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).

Section 2(1) residence paragraph (c)(iii): repealed, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) residence paragraph (c)(iv): amended, on 1 April 2000, by section 8 of the Children’s Health Camps Board Dissolution Act 1999 (1999 No 141).

Section 2(1) Social Welfare District or District: repealed, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) social worker: replaced, on 1 April 1990, by section 35(1)(d) of the Social Welfare (Transitional Provisions) Act 1990 (1990 No 26).

Section 2(1) social worker: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(1) special guardian: inserted, on 30 June 2016, by section 4 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 2(1) subsequent child: inserted, on 30 June 2016, by section 4 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 2(1) summary offence: repealed, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

Section 2(1) traffic offence: replaced, on 23 July 2011, by section 4 of the Children, Young Persons, and Their Families Amendment Act 2011 (2011 No 33).

Section 2(1) traffic offence paragraph (a): amended, on 1 August 2012, by section 94 of the Road User Charges Act 2012 (2012 No 1).

Section 2(1) victim: replaced, on 6 December 2014, by section 4 of the Children, Young Persons, and Their Families Amendment Act 2014 (2014 No 36).

Section 2(1) working day: replaced, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 2(1) working day paragraph (ab): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).

Section 2(1) young person: amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

Section 2(1) youth justice co-ordinator: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 2(2): replaced, on 8 January 1995, by section 2(6) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 2(2)(d): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

Section 2(2)(e): amended, on 30 June 2002, by section 186 of the Sentencing Act 2002 (2002 No 9).

Section 2(3): inserted, on 8 January 1995, by section 2(6) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 2(3): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

Section 2(4): inserted, on 8 January 1995, by section 2(6) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

2A Transitional and savings provisions relating to amendments to this Act

(1)

Schedule 1AA contains transitional and savings provisions—

(a)

relating to amendments made to this Act on or after the commencement of the Children, Young Persons, and Their Families Amendment Act (No 2) 2013; and

(b)

that affect other provisions of this Act (see subsection (2)).

(2)

The transitional and savings provisions set out in Schedule 1AA, which relate to amendments made to this Act on or after the commencement of the Children, Young Persons, and Their Families Amendment Act (No 2) 2013, have effect for the purposes of this Act.

Section 2A: inserted, on 5 December 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2013 (2013 No 110).

2B Meaning of victim

(1)

In this Act, victim means—

(a)

a person against whom an offence is committed by a child or young person:

(b)

a person who, through, or by means of, an offence committed by a child or young person, suffers physical injury or loss of, or damage to, property:

(c)

a parent or guardian of a child or young person who is a victim within the meaning of paragraph (a) or (b), unless that parent or guardian is—

(i)

the child or young person charged with the commission of the offence concerned:

(ii)

the child or young person against whom a charge in respect of the offence has been proved before a Youth Court:

(d)

a member of the immediate family of a person who, as a result of an offence committed by a child or young person, dies or is incapable, unless that member is—

(i)

the child or young person charged with the commission of the offence concerned:

(ii)

the child or young person against whom a charge in respect of the offence has been proved before a Youth Court.

(2)

If an offence is committed by a child or young person then, despite subsection (1), victim does not include—

(a)

any other person against whom (whether as a principal or party or accessory after the fact or otherwise)—

(i)

that offence is proved before a Youth Court; or

(ii)

an offence relating to the same incident or series of incidents as that offence is proved before a Youth Court; or

(b)

any other person who (whether as principal or party or accessory after the fact or otherwise)—

(i)

is charged with the commission of, or convicted or found guilty of, that offence; or

(ii)

is charged with the commission of, or convicted or found guilty of, an offence relating to the same incident or series of incidents as that offence.

(3)

For the purposes of the definition of victim in subsection (1),—

immediate family and incapable have the meanings given in section 4 of the Victims’ Rights Act 2002

offence includes an alleged offence.

Section 2B: inserted, on 6 December 2014, by section 5 of the Children, Young Persons, and Their Families Amendment Act 2014 (2014 No 36).

3 Act to bind the Crown

This Act binds the Crown.

Part 1 General objects, principles, and duties

General objects

4 Objects

The object of this Act is to promote the well-being of children, young persons, and their families and family groups by—

(a)

establishing and promoting, and assisting in the establishment and promotion, of services and facilities within the community that will advance the well-being of children, young persons, and their families and family groups and that are—

(i)

appropriate having regard to the needs, values, and beliefs of particular cultural and ethnic groups; and

(ii)

accessible to and understood by children and young persons and their families and family groups; and

(iii)

provided by persons and organisations sensitive to the cultural perspectives and aspirations of different racial groups in the community:

(b)

assisting parents, families, whanau, hapu, iwi, and family groups to discharge their responsibilities to prevent their children and young persons suffering harm, ill-treatment, abuse, neglect, or deprivation:

(c)

assisting children and young persons and their parents, family, whanau, hapu, iwi, and family group where the relationship between a child or young person and his or her parents, family, whanau, hapu, iwi, or family group is disrupted:

(d)

assisting children and young persons in order to prevent them from suffering harm, ill-treatment, abuse, neglect, and deprivation:

(e)

providing for the protection of children and young persons from harm, ill-treatment, abuse, neglect, and deprivation:

(f)

ensuring that where children or young persons commit offences,—

(i)

they are held accountable, and encouraged to accept responsibility, for their behaviour; and

(ii)

they are dealt with in a way that acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways:

(g)

encouraging and promoting co-operation between organisations engaged in providing services for the benefit of children and young persons and their families and family groups.

Compare: 1974 No 72 s 3

General principles

5 Principles to be applied in exercise of powers conferred by this Act

Subject to section 6, any court which, or person who, exercises any power conferred by or under this Act shall be guided by the following principles:

(a)

the principle that, wherever possible, a child’s or young person’s family, whanau, hapu, iwi, and family group should participate in the making of decisions affecting that child or young person, and accordingly that, wherever possible, regard should be had to the views of that family, whanau, hapu, iwi, and family group:

(b)

the principle that, wherever possible, the relationship between a child or young person and his or her family, whanau, hapu, iwi, and family group should be maintained and strengthened:

(c)

the principle that consideration must always be given to how a decision affecting a child or young person will affect—

(i)

the welfare of that child or young person; and

(ii)

the stability of that child’s or young person’s family, whanau, hapu, iwi, and family group:

(d)

the principle that consideration should be given to the wishes of the child or young person, so far as those wishes can reasonably be ascertained, and that those wishes should be given such weight as is appropriate in the circumstances, having regard to the age, maturity, and culture of the child or young person:

(e)

the principle that endeavours should be made to obtain the support of—

(i)

the parents or guardians or other persons having the care of a child or young person; and

(ii)

the child or young person himself or herself—

to the exercise or proposed exercise, in relation to that child or young person, of any power conferred by or under this Act:

(f)

the principle that decisions affecting a child or young person should, wherever practicable, be made and implemented within a time-frame appropriate to the child’s or young person’s sense of time:

(g)

the principle that decisions affecting a child or young person should be made by adopting a holistic approach that takes into consideration, without limitation, the child’s or young person’s age, identity, cultural connections, education, and health.

Compare: 1974 No 72 ss 4A–4C; 1983 No 129 s 3

Section 5(g): inserted, on 1 July 2014, by section 5 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

6 Welfare and interests of child or young person paramount

In all matters relating to the administration or application of this Act (other than Parts 4 and 5 and sections 351 to 360), the welfare and interests of the child or young person shall be the first and paramount consideration, having regard to the principles set out in sections 5 and 13.

Section 6: replaced, on 8 January 1995, by section 3 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

General duties

7 Duties of chief executive

(1)

It is the duty of the chief executive to take such positive and prompt action and steps as will in the chief executive’s opinion best ensure—

(a)

that the objects of this Act are attained; and

(b)

that those objects are attained in a manner that is consistent with the principles set out in sections 5 and 6.

(2)

In carrying out the duty imposed by subsection (1), the chief executive shall—

(a)

monitor, and advise the Minister on, the effect of social policies and social issues on children, young persons, families, whanau, hapu, iwi, and family groups:

(b)

promote—

(i)

the establishment of services (including social work services, family support services, and community-based services designed to advance the welfare of children and young persons in the community or the home); and

(ii)

the adoption of policies (including the provision of financial support to parents, families, and family groups)—

that are designed to provide assistance to children and young persons who lack adequate parental care, or require protection from harm, or need accommodation or social or recreational activities:

(ba)

in relation to child abuse,—

(i)

promote, by education and publicity, among members of the public (including children and young persons) and members of professional and occupational groups, awareness of child abuse, the unacceptability of child abuse, the ways in which child abuse may be prevented, the need to report cases of child abuse, and the ways in which child abuse may be reported; and

(ii)

develop and implement protocols for agencies (both governmental and non-governmental) and professional and occupational groups in relation to the reporting of child abuse, and monitor the effectiveness of such protocols:

(c)

ensure, wherever possible, that all policies adopted by the department, and all services provided by the department,—

(i)

recognise the social, economic, and cultural values of all cultural and ethnic groups; and

(ii)

have particular regard for the values, culture, and beliefs of the Maori people; and

(iii)

support the role of families, whanau, hapu, iwi, and family groups; and

(iv)

avoid the alienation of children and young persons from their family, whanau, hapu, iwi, and family group:

(d)

establish and fund care and protection resource panels:

(e)

establish procedures to ensure that the cases of children and young persons in respect of whom action has been taken under this Act are regularly reviewed in order to assess the adequacy and appropriateness of that action:

(f)

ensure that persons providing services under this Act receive adequate training and comply with appropriate standards:

(g)

monitor and assess the services provided under this Act by the department and by other organisations, groups, and individuals.

Compare: 1974 No 72 ss 5, 6

Section 7 heading: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 7(1): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 7(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 7(2)(ba): inserted, on 1 July 1995, by section 4(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

8 Parents and others to be informed of decisions

(1)

Where any person takes any action, or makes any decision, under this Act that significantly affects any child or young person, that person shall ensure that, wherever practicable, the following persons are informed, as soon as practicable, of that action or decision and of the reasons for it:

(a)

every person who is a parent or guardian of, or a person having the care of, the child or young person:

(b)

the child or young person.

(2)

It is not necessary to inform a child or young person of any action or decision if—

(a)

that child or young person is incapable of understanding it; or

(b)

it is plainly not in the child’s or young person’s interests to be so informed.

(3)

The information required by subsection (1) to be given to any person shall be given—

(a)

orally and, where practicable, in writing; and

(b)

where practicable, in a manner and in language that the person understands.

9 Interpreters

(1)

Where—

(a)

any court hears any proceedings under this Act relating to a child or young person; or

(b)

any person takes or proposes to take any action under this Act in relation to a child or young person,—

it is the duty of that court or, as the case requires, that person to ensure that the requirements of this section are carried out wherever practicable.

(2)

The requirements of this section are as follows:

(a)

that where—

(i)

the first or preferred language of the child or young person is Maori or any other language other than English; or

(ii)

the child or young person is unable, by reason of a physical disability, to understand English,—

the services of an interpreter are provided for the child or young person:

(b)

that where—

(i)

the first or preferred language of any parent or guardian or other person having the care of the child or young person is Maori or any other language other than English; or

(ii)

that parent or guardian or that other person is unable, by reason of a physical disability, to understand English,—

the services of an interpreter are provided for that parent or guardian or that other person.

(3)

Nothing in this section limits or affects Te Ture mō Te Reo Māori 2016/the Māori Language Act 2016.

Section 9(3): amended, on 30 April 2016, by section 50 of Te Ture mō Te Reo Māori 2016/the Māori Language Act 2016 (2016 No 17).

10 Duty of court and counsel to explain proceedings

(1)

Where, in any proceedings under this Act, a child or young person, or any parent or guardian or other person having the care of a child or young person, appears before a Family Court or a Youth Court, the court shall—

(a)

explain in a manner and in language that can be understood by the child or young person or other person the nature of the proceedings, including, in the case of proceedings in a Youth Court, the nature and, where the child or young person or other person is not legally represented, the legal implications of the allegations; and

(b)

satisfy itself that the child or young person or other person understands the proceedings; and

(c)

where the court makes any order under section 83(1) or section 84 or section 283, explain to the child or young person to whom the order relates and to any parent or guardian or other person having the care of the child or young person, in a manner and in language that can be understood by that child or young person or other person,—

(i)

the nature and requirements of the order:

(ii)

any provisions for variation of the order:

(iii)

the existence of rights of appeal against the order or the finding on which the order is based.

(2)

Where, in any proceedings under this Act, a child or young person, or any parent or guardian or other person having the care of a child or young person, appears before a Family Court or a Youth Court, the barrister or solicitor representing that child or young person or other person shall—

(a)

explain to the person whom that barrister or solicitor represents, in a manner and in language that can be understood by that person, the nature of the proceedings, including, in the case of proceedings in a Youth Court, the nature and legal implications of the allegations; and

(b)

satisfy himself or herself that the person whom that barrister or solicitor represents understands the proceedings; and

(c)

where the court makes any order under section 83(1) or section 84 or section 283, explain to the person whom that barrister or solicitor represents, in a manner and in language that can be understood by that person, the matters specified in subparagraphs (i) to (iii) of subsection (1)(c).

Compare: 1974 No 72 s 40(a); 1983 No 129 s 9

11 Duty of court and counsel to encourage and assist child or young person to participate in proceedings

Where, in any proceedings under this Act, a child or young person appears before a Family Court or a Youth Court, that court and the barrister or solicitor representing the child or young person shall, where necessary and appropriate, encourage and assist the child or young person to participate in those proceedings to the degree appropriate to the age and level of maturity of the child or young person.

12 Duty of medical practitioner to minimise distress to child or young person

Every medical practitioner who carries out a medical examination of any child or young person under any provision of this Act shall carry out that examination in a way that causes the least possible distress to the child or young person.

Part 2 Care and protection of children and young persons

Principles

13 Principles

(1)

Every court or person exercising powers conferred by or under this Part, Part 3 or 3A, or sections 341 to 350, must adopt, as the first and paramount consideration, the welfare and interests of the relevant child or young person (as required by section 6).

(2)

In determining the welfare and interests of a child or young person, the court or person must be guided by the principle that children and young people must be protected from harm and have their rights upheld, and also the principles in section 5 as well as the following principles:

(a)
[Repealed]

(b)

the principle that the primary role in caring for and protecting a child or young person lies with the child’s or young person’s family, whanau, hapu, iwi, and family group, and that accordingly—

(i)

a child’s or young person’s family, whanau, hapu, iwi, and family group should be supported, assisted, and protected as much as possible; and

(ii)

intervention into family life should be the minimum necessary to ensure a child’s or young person’s safety and protection:

(c)

the principle that it is desirable that a child or young person live in association with his or her family, whanau, hapu, iwi, and family group, and that his or her education, training, or employment be allowed to continue without interruption or disturbance:

(d)

where a child or young person is considered to be in need of care or protection, the principle that, wherever practicable, the necessary assistance and support should be provided to enable the child or young person to be cared for and protected within his or her own family, whanau, hapu, iwi, and family group:

(e)

the principle that a child or young person should be removed from his or her family, whanau, hapu, iwi, and family group only if there is a serious risk of harm to the child or young person:

(f)

where a child or young person is removed from his or her family, whanau, hapu, iwi, and family group, the principles that,—

(i)

wherever practicable, the child or young person should be returned to, and protected from harm within, that family, whanau, hapu, iwi, and family group; and

(ii)

where the child or young person cannot immediately be returned to, and protected from harm within, his or her family, whanau, hapu, iwi, and family group, until the child or young person can be so returned and protected he or she should, wherever practicable, live in an appropriate family-like setting—

(A)

that, where appropriate, is in the same locality as that in which the child or young person was living; and

(B)

in which the child’s or young person’s links with his or her family, whanau, hapu, iwi, and family group are maintained and strengthened; and

(iii)

where the child or young person cannot be returned to, and protected from harm within, his or her family, whanau, hapu, iwi, and family group, the child or young person should live in a new family group, or (in the case of a young person) in an appropriate family-like setting, in which he or she can develop a sense of belonging, and in which his or her sense of continuity and his or her personal and cultural identity are maintained:

(g)

where a child or young person cannot remain with, or be returned to, his or her family, whanau, hapu, iwi, and family group, the principle that, in determining the person in whose care the child or young person should be placed, priority should, where practicable, be given to a person—

(i)

who is a member of the child’s or young person’s hapu or iwi (with preference being given to hapu members), or, if that is not possible, who has the same tribal, racial, ethnic, or cultural background as the child or young person; and

(ii)

who lives in the same locality as the child or young person:

(h)

where a child or young person cannot remain with, or be returned to, his or her family, whanau, hapu, iwi, and family group, the principle that the child or young person should be given an opportunity to develop a significant psychological attachment to the person in whose care the child or young person is placed:

(i)

where a child is considered to be in need of care or protection on the ground specified in section 14(1)(e), the principle set out in section 208(g).

Compare: 1974 No 72 s 4

Section 13(1): inserted, on 1 July 2014, by section 6(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 13(2): amended, on 1 July 2014, by section 6(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 13(2)(a): repealed, on 1 July 2014, by section 6(3) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Definition of child or young person in need of care or protection

14 Definition of child or young person in need of care or protection

(1)

A child or young person is in need of care or protection within the meaning of this Part if—

(a)

the child or young person is being, or is likely to be, harmed (whether physically or emotionally or sexually), ill-treated, abused, or seriously deprived; or

(b)

the child’s or young person’s development or physical or mental or emotional well-being is being, or is likely to be, impaired or neglected, and that impairment or neglect is, or is likely to be, serious and avoidable; or

(ba)

the child is a subsequent child of a parent to whom section 18A applies, and the parent has not demonstrated to the satisfaction of a social worker (under section 18A) or the court (under section 18C) that he or she meets the requirements of section 18A(3); or

(c)

serious differences exist between the child or young person and the parents or guardians or other persons having the care of the child or young person to such an extent that the physical or mental or emotional well-being of the child or young person is being seriously impaired; or

(d)

the child or young person has behaved, or is behaving, in a manner that—

(i)

is, or is likely to be, harmful to the physical or mental or emotional well-being of the child or young person or to others; and

(ii)

the child’s or young person’s parents or guardians, or the persons having the care of the child or young person, are unable or unwilling to control; or

(e)

in the case of a child of or over the age of 10 years and under 14 years, the child has committed an offence or offences the number, nature, or magnitude of which is such as to give serious concern for the well-being of the child; or

(f)

the parents or guardians or other persons having the care of the child or young person are unwilling or unable to care for the child or young person; or

(g)

the parents or guardians or other persons having the care of the child or young person have abandoned the child or young person; or

(h)

serious differences exist between a parent, guardian, or other person having the care of the child or young person and any other parent, guardian, or other person having the care of the child or young person to such an extent that the physical or mental or emotional well-being of the child or young person is being seriously impaired; or

(i)

the ability of the child or young person to form a significant psychological attachment to the person or persons having the care of the child or young person is being, or is likely to be, seriously impaired because of the number of occasions on which the child or young person has been in the care or charge of a person (not being a person specified in subsection (2)) for the purposes of maintaining the child or young person apart from the child’s or young person’s parents or guardians.

(2)

The persons referred to in subsection (1)(i) are as follows:

(a)

any person who has custody of the child or young person pursuant to the order of any court, whether or not that court is a court within the meaning of this Act:

(b)

any person who has the child or young person in that person’s care—

(i)

pursuant to an agreement under section 139 or section 140 or section 141 or section 142; or

(ii)

for the purpose of adoption, and the requirements of section 6 of the Adoption Act 1955 are being complied with:

(c)

any person who is caring for the child or young person in—

(i)

any residential accommodation provided for children or young persons attending a registered school within the meaning of the Education Act 1989:

(ii)

a hospital care institution within the meaning of section 58(4) of the Health and Disability Services (Safety) Act 2001.

Compare: 1974 No 72 s 27(2); 1977 No 126 s 7(1)

Section 14(1)(ba): inserted, on 30 June 2016, by section 7 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 14(2)(c): replaced, on 1 October 2002, by section 58(1) of the Health and Disability Services (Safety) Act 2001 (2001 No 93).

14A Conduct outside New Zealand

For the purposes of this Act, it does not matter whether the conduct constituting a ground referred to in section 14(1) occurred partly or wholly outside New Zealand.

Section 14A: inserted, on 1 November 1999, by section 2 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Reporting of child abuse

15 Reporting of ill-treatment or neglect of child or young person

Any person who believes that any child or young person has been, or is likely to be, harmed (whether physically, emotionally, or sexually), ill-treated, abused, neglected, or deprived may report the matter to a social worker or a constable.

Section 15: amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

16 Protection of person reporting ill-treatment or neglect of child or young person

No civil, criminal, or disciplinary proceedings shall lie against any person in respect of the disclosure or supply, or the manner of the disclosure or supply, by that person pursuant to section 15 of information concerning a child or young person (whether or not that information also concerns any other person), unless the information was disclosed or supplied in bad faith.

Section 16: amended, on 8 January 1995, by section 5 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

17 Investigation of report of ill-treatment or neglect of child or young person

(1)

Where any social worker or constable receives a report pursuant to section 15 relating to a child or young person, that social worker or constable shall, as soon as practicable after receiving the report, undertake or arrange for the undertaking of such investigation as may be necessary or desirable into the matters contained in the report and shall, as soon as practicable after the investigation has commenced, consult with a care and protection resource panel in relation to the investigation.

(2)

Where, after an investigation under subsection (1) into the matters contained in a report under section 15, the social worker or constable to whom the report was made reasonably believes that the child or young person to whom the report relates is in need of care or protection, that social worker or constable shall, as soon as practicable, notify a care and protection co-ordinator of those matters in accordance with section 18.

(3)

Where any person receives a report pursuant to section 15 relating to a child or young person, that person shall, as soon as practicable after—

(a)

that report is investigated under subsection (1); or

(b)

a decision is made not to investigate the report,—

unless it is impracticable or undesirable to do so, inform the person who made the report whether or not the report has been investigated and, if so, whether any further action has been taken with respect to it.

Section 17(1): replaced, on 8 January 1995, by section 6 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 17(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 17(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

18 Referral of care or protection cases to care and protection co-ordinator or youth justice co-ordinator by social workers or constables

(1)

Where any social worker or constable believes, after inquiry, that any child or young person is in need of care or protection (other than on the ground specified in section 14(1)(ba) or (e)), that social worker or constable shall forthwith report the matter to a care and protection co-ordinator, who shall convene a family group conference in accordance with section 20.

(2)

Where any social worker suspects that any child is in need of care or protection on the ground specified in section 14(1)(e), that social worker may refer the matter to the appropriate enforcement agency.

(3)

Where any enforcement officer believes, after inquiry, that any child is in need of care or protection on the ground specified in section 14(1)(e), that enforcement officer shall forthwith report the matter to a youth justice co-ordinator, who after consulting with that enforcement officer, and if that enforcement officer believes that the making of an application for a declaration under section 67 in respect of that child is required in the public interest, shall convene a family group conference in accordance with section 247.

Section 18 heading: amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 18(1): amended, on 30 June 2016, by section 8 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 18(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

18A Assessment of parent of subsequent child

(1)

This section applies to a person who—

(a)

is a person described in section 18B; and

(b)

is the parent of a subsequent child; and

(c)

has, or is likely to have, the care or custody of the subsequent child; and

(d)

is not a person to whom subsection (7) applies.

(2)

If a social worker believes on reasonable grounds that a person is a person to whom this section applies, the social worker must, after informing the person (where practicable) that he or she is to be assessed under this section, assess whether the person meets the requirements of subsection (3) in respect of the subsequent child.

(3)

A person meets the requirements of this subsection if,—

(a)

in a case where the parent’s own act or omission led to him or her being a person described in section 18B, the parent is unlikely to inflict on the subsequent child the kind of harm that led to the parent being so described; or

(b)

in any other case, the parent is unlikely to allow the kind of harm that led to the parent being a person described in section 18B to be inflicted on the subsequent child.

(4)

Following the assessment,—

(a)

if subsection (5) applies, the social worker must apply for a declaration under section 67 that the subsequent child is in need of care or protection on the ground in section 14(1)(ba); or

(b)

in any other case, the social worker must decide not to apply as described in paragraph (a), and must instead apply under section 18C for confirmation of the decision not to apply under section 67.

(5)

The social worker must apply as described in subsection (4)(a) if the social worker is not satisfied that the person, following assessment under this section, has demonstrated that he or she meets the requirements of subsection (3).

(6)

No family group conference need be held before any application referred to in subsection (4) is made to the court, and nothing in section 70 applies.

(7)

This subsection applies to the parent of a subsequent child if, since he or she last became a person described in section 18B,—

(a)

the parent has been assessed under this section by a social worker in relation to a subsequent child and, following that assessment,—

(i)

the court has confirmed, under section 18C, a decision made under subsection (4)(b); or

(ii)

the social worker applied for a declaration under section 67 that the child was in need of care or protection on the ground in section 14(1)(ba), but the application was refused on the ground that the court was satisfied that the parent had demonstrated that he or she met the requirements of subsection (3); or

(b)

the parent was, before this section came into force, subject to an investigation carried out by a social worker under section 17 in relation to a child who would, at that time, have fallen within the definition of a subsequent child, and the social worker did not at that time form the belief that the child was in need of care or protection on a ground in section 14(1)(a) or (b).

Section 18A: inserted, on 30 June 2016, by section 9 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

18B Person described in this section

(1)

A person described in this section is a person—

(a)

who has been convicted under the Crimes Act 1961 of the murder, manslaughter, or infanticide of a child or young person who was in his or her care or custody at the time of the child’s or young person’s death; or

(b)

who has had the care of a child or young person removed from him or her on the basis described in subsection (2)(a) and (b) and, in accordance with subsection (2)(c), there is no realistic prospect that the child or young person will be returned to the person’s care.

(2)

Subsection (1)(b) applies, in relation to a child or young person removed from the care of a person, if—

(a)

the court has declared under section 67, or a family group conference has agreed, that the child or young person is in need of care or protection on a ground in section 14(1)(a) or (b); and

(b)

the court has made an order under section 101 (not being an order to which section 102 applies) or 110 of this Act, or under section 48 of the Care of Children Act 2004; and

(c)

the court has determined (whether at the time of the order referred to in paragraph (b) or subsequently), or, as the case requires, the family group conference has agreed, that there is no realistic prospect that the child or young person will be returned to the person’s care.

(3)

If a person is a person described in this section on more than 1 of the grounds listed in subsection (1), the references in section 18A(3) to the kind of harm that led a person to being a person described in this section is taken to be a reference to any or all of those kinds of harm.

Section 18B: inserted, on 30 June 2016, by section 9 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

18C Confirmation of decision not to apply for declaration under section 67

(1)

An application under this section for confirmation of a decision under section 18A(4)(b) relating to the parent of a subsequent child must include—

(a)

information showing that the person is a person to whom section 18A applies; and

(b)

an affidavit, signed by the social worker, setting out the circumstances of the application and the reasons for the social worker’s belief that the parent meets the requirements of section 18A(3).

(2)

The application must be served in accordance with section 152(1) as if it were an application for a declaration under section 67.

(3)

When considering the application, the court may (but need not) give any person an opportunity to be heard on the application and, if it does, may appoint a barrister or solicitor (under section 159) to represent the subsequent child.

(4)

After considering the application, the court may,—

(a)

if subsection (5) applies, confirm the social worker’s decision under section 18A(4)(b) not to apply for a declaration under section 67; or

(b)

decline to confirm the social worker’s decision under section 18A(4)(b), in which case section 18D applies; or

(c)

dismiss the application on the ground that it does not relate to a person to whom section 18A applies; or

(d)

adjourn the hearing and require the social worker to—

(i)

provide such information as the court specifies, within the period specified by the court; or

(ii)

reconsider all or any aspect of the assessment and report to the court within a period specified by the court.

(5)

The court may confirm the decision of a social worker under section 18A(4)(b) only if it is satisfied, on the basis of the written material before it (and, if the court has heard any person under subsection (3), any other material heard), that the parent in respect of whom the application is made has demonstrated that he or she meets the requirements of section 18A(3).

(6)

Except as provided in this section, nothing in Part 3 applies in respect of an application for, or a decision of a court on, confirmation of a decision made under section 18A(4)(b).

Section 18C: inserted, on 30 June 2016, by section 9 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

18D Court declining to confirm decision

If, under section 18C(4)(b), the court declines to confirm a social worker’s decision under section 18A(4)(b), the court must give written reasons for its decision, and the application for confirmation—

(a)

must be treated as an application for a declaration under section 67 made by the chief executive on the ground in section 14(1)(ba), as if leave of the court had been granted under section 68(c); and

(b)

must be served and heard in accordance with Part 3 and the rules of court, except that, although section 70 does not apply, if a family group conference is convened pursuant to section 72(3), the chief executive (or his or her representative) is entitled to attend the conference as if he or she were entitled to do so under section 22(1)(a) to (h).

Section 18D: inserted, on 30 June 2016, by section 9 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

19 Referral of care or protection cases to care and protection co-ordinator by other persons or by court

(1)

Where—

(a)

after inquiry, any body or organisation (including a government department or other agency of the Crown, or a local authority) concerned with the welfare of children and young persons; or

(b)

in any proceedings, any court—

believes that any child or young person is in need of care or protection on 1 or more of the grounds specified in section 14(1) (other than on the ground specified in section 14(1)(ba)), that body, organisation, or court may refer the matter to a care and protection co-ordinator.

(1A)

Every referral pursuant to subsection (1) shall be accompanied by—

(a)

a statement of the reasons for believing that the child or young person to whom the referral relates is in need of care or protection; and

(b)

particulars sufficient to identify any person, body, or organisation that might be contacted to substantiate that belief; and

(c)

a statement indicating whether or not the referral is being made with the consent or knowledge of—

(i)

the parents or guardians or other persons having the care of the child or young person to whom the referral relates; or

(ii)

the family, whanau, or family group of that child or young person; and

(d)

any recommendation as to the course of action the care and protection co-ordinator might take in respect of the referral.

(2)

Every care and protection co-ordinator to whom a case is referred pursuant to subsection (1) shall, where it appears to that care and protection co-ordinator to be necessary to do so,—

(a)

except where paragraph (b) applies, convene a family group conference in accordance with section 20; or

(b)

where the child is believed to be in need of care or protection on the ground specified in section 14(1)(e), report the matter to the appropriate enforcement agency; or

(c)

take such other action as is appropriate in the circumstances.

(3)

For the purposes of determining whether or not it is necessary to convene a family group conference pursuant to subsection (2)(a), a care and protection co-ordinator may arrange for a case to be investigated by a social worker.

(4)

Every care and protection co-ordinator to whom a case is referred pursuant to subsection (1) by a court shall,—

(a)

within 28 days after receiving that referral, furnish to the court a written report stating—

(i)

what action (if any) has been taken with respect to the case as a result of the referral; and

(ii)

if any such action has been taken, whether that action has resolved the matter, and, if so, how that matter has been resolved; and

(iii)

what further action (if any) is proposed with respect to the case, and, if any such action is proposed, when that action is likely to be completed; and

(b)

subject to paragraph (c), where the report furnished pursuant to paragraph (a) indicates that further action is proposed with respect to the case, within 28 days of the furnishing of that report, furnish to the court a written report stating—

(i)

what progress (if any) has been made with respect to that action; and

(ii)

when that action is likely to be completed; and

(c)

where the report furnished pursuant to paragraph (a) indicates that further action is proposed with respect to the case, on the completion of that action, furnish to the court a written report stating whether that action has resolved that matter, and, if so, how that matter has been resolved.

Section 19(1): amended, on 30 June 2016, by section 10 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 19(1): amended, on 8 January 1995, by section 7(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 19(1A): inserted, on 8 January 1995, by section 7(2) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 19(4): inserted, on 8 January 1995, by section 7(3) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Family group conferences

20 Convening of family group conferences

Where, pursuant to this Part, a care and protection co-ordinator is authorised or required to convene or reconvene a family group conference, that care and protection co-ordinator shall, subject to section 21, fix the date on which and the time and place at which the conference is to be held.

21 Care and protection co-ordinator to consult family, whanau, or family group on convening of family group conference

Every care and protection co-ordinator shall, before convening any family group conference pursuant to this Part in respect of any child or young person,—

(a)

consult with a care and protection resource panel; and

(b)

make all reasonable endeavours to consult with the child’s or young person’s family, whanau, or family group in relation to—

(i)

the date on which, and the time and place at which, the conference is to be held; and

(ii)

the persons who should attend the conference; and

(iii)

the procedure to be adopted at the conference,—

and, subject to section 22, shall, so far as it is practicable and consistent with the principles of this Act, give effect to the wishes of the child’s or young person’s family, whanau, or family group in relation to those matters.

22 Persons entitled to attend family group conference

(1)

Subject to subsection (2), the following persons are entitled to attend a family group conference convened under this Part:

(a)

the child or young person in respect of whom the conference is held, unless the care and protection co-ordinator convening the conference is of the opinion that—

(i)

the attendance of that child or young person would not be in the interests of that child or young person, or would, for any other reason, be undesirable; or

(ii)

the child or young person would be unable, by reason of its age or level of maturity, to understand the proceedings:

(b)

every person who is—

(i)

a parent or guardian of, or a person having the care of, that child or young person; or

(ii)

a member of the family, whanau, or family group of the child or young person,—

unless the care and protection co-ordinator convening the conference is of the opinion that that person’s attendance would not be in the interests of the child or young person, or would be undesirable for any other reason:

(c)

the care and protection co-ordinator who is convening the conference, or any care and protection co-ordinator who is acting for that person:

(d)

where the conference has been convened on the basis of a report under section 18(1) from a social worker or a constable, that social worker or constable, or any social worker or constable who is acting for that person:

(e)

where the conference has been convened on the basis of a referral of a matter under section 19(1)(a) by any body or organisation, a representative of that body or organisation:

(f)

where the conference has been convened or reconvened, for the purposes of section 145, in respect of a child or young person, a representative of the person who has the care of that child or young person pursuant to an agreement to which that section applies, or who it is proposed should have the care of that child or young person pursuant to such an agreement:

(g)

if the child or young person is under the guardianship of the court under the Care of Children Act 2004, any person appointed as agent for the court under that Act, or any representative of that person:

(h)

any barrister or solicitor or lay advocate representing the child or young person:

(i)

any person whose attendance at that conference is in accordance with the wishes of the family, whanau, or family group of the child or young person as expressed under section 21.

(2)

No person to whom paragraph (c) or paragraph (d) or paragraph (e) or paragraph (f) or paragraph (h) of subsection (1) applies is entitled to be present at any family group conference during any discussions or deliberations held among the members of the family, whanau, or family group of the child or young person in respect of whom the conference is held, unless those members request any such person to be present.

(3)

If a family group conference is reconvened to review a decision, recommendation, or plan, every person who, at the time of the reconvened conference, is a person to whom subsection (1) applies is entitled to attend the conference.

Section 22(1)(d): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 22(1)(g): replaced, on 3 June 1998, by section 8 of the Guardianship Amendment Act 1998 (1998 No 48).

Section 22(1)(g): amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 22(3): inserted, on 30 June 2016, by section 11 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

23 Care and protection co-ordinator to ensure that relevant information and advice made available to family group conference

(1)

Every care and protection co-ordinator who convenes a family group conference under this Part shall take all reasonable steps to ensure that all information and advice that the co-ordinator considers are required by the conference to carry out its functions (including information and advice relating to the health and education needs of every child or young person in respect of whom the conference is convened) are made available to the conference.

(2)

Subject to section 22, where it is appropriate for any person (including a member of a care and protection resource panel) to attend a family group conference for the purpose of conveying to that conference any information or advice required by the conference to carry out its functions, that person may attend that conference for that purpose, but may otherwise attend the conference only with the agreement of the conference.

Section 23(1): amended, on 30 June 2016, by section 12(a) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 23(1): amended, on 30 June 2016, by section 12(b) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

24 Care and protection co-ordinator to ascertain views of persons unable to attend family group conference

(1)

Every care and protection co-ordinator who convenes a family group conference under this Part shall take all reasonable steps to ascertain the views of the following persons in relation to the matters to be considered at the conference:

(a)

any person who is excluded from attendance at the conference pursuant to paragraph (a)(i) or paragraph (b) of section 22(1):

(b)

any person who is entitled to attend the conference but who has notified the care and protection co-ordinator that he or she or it is unable, for any reason, to do so.

(2)

Where, in respect of any family group conference, a care and protection co-ordinator ascertains the views of any person pursuant to subsection (1), that co-ordinator shall ensure that those views are made known at that conference.

25 Notification of convening of family group conference

(1)

Subject to subsection (2), every care and protection co-ordinator who convenes a family group conference under this Part shall take all reasonable steps to ensure that notice of the date on which, and the time and place at which, the conference is to be held is given to every person who is entitled to attend that conference.

(2)

No notice is required to be given pursuant to subsection (1) to any person whose whereabouts cannot, after reasonable enquiries, be ascertained.

(3)

Every notice required by subsection (1) shall be given a reasonable time before the conference is to be held.

(4)

Failure to notify any person in accordance with this section shall not affect the validity of the proceedings of a family group conference unless it is shown that the failure is likely to have materially affected the outcome of that conference.

26 Procedure at family group conference

(1)

Subject to this Part, a family group conference may regulate its procedure in such manner as it thinks fit.

(2)

Subject to section 5(f), a family group conference may from time to time be adjourned to a time and place determined by the conference.

27 Department to provide administrative services to family group conference

The department shall provide such administrative services as may be necessary to enable a family group conference to discharge its functions.

28 Functions of family group conference

The functions of a family group conference convened under this Part are as follows:

(a)

to consider, in relation to the child or young person in respect of whom the conference was convened, such matters relating to the care or protection of that child or young person as the conference thinks fit:

(b)

where the conference considers that the child or young person in respect of whom it was convened is in need of care or protection, to make such decisions or recommendations, and to formulate such plans, in relation to that child or young person as the conference considers necessary or desirable, having regard to the principles set out in sections 5, 6, and 13:

(c)

to review from time to time—

(i)

the decisions and recommendations made, and the plans formulated, by that conference:

(ii)

the implementation of any such decisions, recommendations, and plans.

29 Family group conference may make decisions and recommendations and formulate plans

(1)

A family group conference convened under this Part may make such decisions and recommendations and formulate such plans as it considers necessary or desirable in relation to the care or protection of the child or young person in respect of whom the conference was convened.

(2)

In making such decisions and recommendations and formulating such plans, the conference shall have regard to the principles set out in sections 5, 6, and 13.

(3)

Every care and protection co-ordinator who convenes a family group conference shall cause to be made a written record of the details of the decisions and recommendations made, and the plans formulated, by that conference pursuant to this section.

29A Content of plan

(1)

Every plan of which a written record is prepared under section 29(3) must, without limitation,—

(a)

specify, contain, or state all the matters listed in section 130(1) (except as provided in section 130(2)); and

(b)

specify a date by which the plan must be reviewed.

(2)

The review date referred to in subsection (1)(b) must be,—

(a)

if the plan relates to a child under the age of 7 years, within 6 months after the date on which the plan comes into effect in accordance with section 30; or

(b)

in any other case, within 12 months after that date.

Section 29A: inserted, on 30 June 2016, by section 13 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

30 Care and protection co-ordinator to seek agreement to decisions, recommendations, and plans of family group conference

(1)

Where a family group conference makes any decision or recommendation, or formulates any plan, pursuant to section 29(1) or subsection (4) of this section, the care and protection co-ordinator who convened that conference shall,—

(a)

where the conference was convened under section 18(1) on the basis of a report from a social worker or a constable,—

(i)

communicate that decision, recommendation, or plan to that social worker or constable (or any person acting for that social worker or that constable), and to every person who will be directly involved in the implementation of the decision, recommendation, or plan; and

(ii)

seek the agreement of that social worker or constable (or any person acting for that social worker or that constable), and of every other person to whom that decision, recommendation, or plan is communicated pursuant to subparagraph (i), to that decision, recommendation, or plan:

(b)

where the conference was convened under section 19(2)(a) on the basis of a referral from any body, organisation, or court,—

(i)

communicate that decision, recommendation, or plan to that body, organisation, or court, and to every person who will be directly involved in the implementation of that decision, recommendation, or plan; and

(ii)

seek the agreement of that organisation or body, and of every other person (other than a court) to whom that decision, recommendation, or plan is communicated pursuant to subparagraph (i), to that decision, recommendation, or plan.

(2)

Where, pursuant to paragraph (a)(i) or paragraph (b)(i) of subsection (1), a care and protection co-ordinator meets with any person, body, organisation, or court for the purpose of communicating to that person, body, organisation, or court any decision, recommendation, or plan made or formulated by a family group conference, the care and protection co-ordinator may be accompanied by a person nominated by that family group conference.

(3)

Where a care and protection co-ordinator is unable to secure agreement, under subsection (1), to a decision, recommendation, or plan made or formulated by a family group conference, the care and protection co-ordinator may, for the purpose of enabling that conference to reconsider that decision, recommendation, or plan, reconvene that conference.

(4)

Any family group conference reconvened under subsection (3) may confirm, rescind, or modify its previous decision, recommendation, or plan, or rescind its previous decision, recommendation, or plan and make or formulate a new decision, recommendation, or plan.

(5)

Any decision, recommendation, or plan confirmed or modified under subsection (4), and any new decision, recommendation, or plan made or formulated under that subsection, shall be deemed to have been made or formulated pursuant to section 29.

Section 30(1)(a): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 30(1)(a)(i): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 30(1)(a)(ii): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

31 Procedure where no agreement possible

(1)

Where—

(a)

the members of a family group conference are unable to agree on what decisions, recommendations, or plans should be made in relation to the child or young person in respect of whom the conference was convened; or

(b)

a care and protection co-ordinator is unable to secure agreement under section 30 to the decisions, recommendations, and plans made or formulated by a family group conference,—

the care and protection co-ordinator who convened the conference—

(c)

shall,—

(i)

where the conference was convened under section 18(1) on the basis of a report from a social worker or a constable, make a report on the matter to that social worker or constable; or

(ii)

in any other case, report the matter to a social worker:

(d)

shall, where proceedings have been commenced under this Act in any court in relation to the child or young person in respect of whom the conference was convened, report the matter to that court:

(e)

shall, in every case, consult with a care and protection resource panel.

(2)

Where a care and protection co-ordinator makes a report, under subsection (1)(c)(i) or (ii), to any social worker or constable, that social worker or constable may take such action under this Act as that person considers appropriate.

Section 31(1)(c)(i): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 31(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

32 Records of decisions, recommendations, and plans of family group conferences to be made available to interested persons

(1)

Every care and protection co-ordinator who convenes a family group conference under this Part shall ensure that a copy of every record made pursuant to section 29(3) in relation to that conference is given or sent to—

(a)

the child or young person in respect of whom the conference was convened, unless the child or young person would be unable, by reason of its age or level of maturity, to understand the contents of the record; and

(b)

every person who is a parent or guardian of that child or young person or has the care of that child or young person; and

(c)

any barrister or solicitor or lay advocate representing the child or young person; and

(d)

any other person who is or will be directly affected by any decision, recommendation, or plan detailed in that record; and

(e)

where there is an appropriate iwi social service or cultural social service with respect to the child or young person, that social service; and

(f)

the appropriate care and protection resource panel.

(2)

Where any child or young person is the subject of any proceedings under this Act before any court, a copy of the record made pursuant to section 29(3) in respect of any family group conference held in relation to that child or young person shall be made available to that court.

Section 32(1)(e): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

33 Department to maintain records of proceedings of family group conferences

(1)

Every written record made pursuant to section 29(3) in relation to a family group conference shall be kept at the District Office of the department nearest to where the conference is held.

(2)

The following persons shall have access to any such record:

(a)

any person to whom a copy of that record is required to be sent pursuant to section 32:

(b)

any care and protection co-ordinator:

(c)

any social worker:

(d)

any other person who, in the opinion of a care and protection co-ordinator, has a genuine and proper interest in the matter.

(3)

Nothing in this section limits or affects the Official Information Act 1982.

34 Chief executive to give effect to decisions, recommendations, and plans of family group conference

(1)

The chief executive shall consider every decision, recommendation, or plan that is made or formulated by a family group conference pursuant to this Part (other than a decision, recommendation, or plan to which the agreement of a social worker is not secured under section 30), and, unless the chief executive considers that it is impracticable, unreasonable, or clearly inconsistent with the principles set out in sections 5, 6, and 13, shall give effect to that decision, recommendation, or plan by the provision of such services and resources, and the taking of such action and steps, as are necessary and appropriate in the circumstances of the particular case.

(2)

The chief executive may, from time to time, make such grants or provide such financial assistance as may be necessary to give effect to any decision, recommendation, or plan made or formulated by a family group conference pursuant to this Part.

Section 34 heading: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 34(1): amended, on 30 June 2016, by section 14 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 34(1): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 34(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

35 Police to comply with decisions, recommendations, and plans of family group conference

Where—

(a)

any decision, recommendation, or plan is made or formulated by a family group conference; and

(b)

agreement to that decision, recommendation, or plan has been secured under section 30; and

(c)

the implementation of that decision, recommendation, or plan involves any action on the part of the Police,—

unless the Police consider that it is impracticable, unreasonable, or clearly inconsistent with the principles set out in sections 5, 6, and 13 to do so, it is the duty of the Police to give effect to that decision, recommendation, or plan by the taking of such action and steps as are necessary and appropriate in the circumstances of the particular case.

Section 35: amended, on 30 June 2016, by section 15 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

36 Family group conference to reconvene to review its decisions, recommendations, and plans

(1)

For the purpose of reviewing a decision, recommendation, or plan made or formulated by a family group conference, the care and protection co-ordinator who convened the conference—

(a)

must (subject to subsection (1A)) reconvene the conference on or before the review date (if any) specified in the plan; and

(b)

must reconvene the conference if required to do so, in accordance with subsection (1B), by a social worker; and

(c)

must reconvene the conference if required to do so, in accordance with subsection (1B), by an iwi social service, a cultural social service, or a child and family support service, but only if that service—

(i)

was the body or organisation that referred the relevant child or young person to a care and protection co-ordinator under section 19; or

(ii)

is a body or organisation directly involved in the implementation of the decision, recommendation, or plan to be considered; and

(d)

may reconvene the conference, at any time, at the co-ordinator’s own motion or at the request of at least 2 members of the conference that made or formulated the decision, recommendation, or plan under review.

(1A)

Subsection (1)(a) does not apply if—

(a)

the care and protection co-ordinator, after consulting the social worker, is of the view that no further action under the plan is required; or

(b)

before the review date, a court makes any of the following orders in respect of the child or young person to whom the plan relates:

(i)

a services order under section 86:

(ii)

a support order under section 91:

(iii)

a custody order (other than an interim order) under section 101:

(iv)

a guardianship order under section 110 that appoints any person as the sole guardian of the child or young person:

(v)

a special guardianship order under section 113A.

(1B)

A social worker, or a service referred to in subsection (1)(c), may require a care and protection co-ordinator to reconvene a family group conference under subsection (1)(b) or (c) only if the social worker or service is satisfied that there has been a change of circumstances such that the decision, recommendation, or plan no longer adequately addresses the needs of the child or young person to whom it relates.

(2)

Sections 20 to 35 shall apply, with all necessary modifications, with respect to every family group conference reconvened under this section.

Section 36 heading: amended, on 30 June 2016, by section 16(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 36(1): replaced, on 30 June 2016, by section 16(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 36(1A): inserted, on 30 June 2016, by section 16(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 36(1B): inserted, on 30 June 2016, by section 16(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

37 Proceedings of family group conference privileged

(1)

No evidence shall be admissible in any court, or before any person acting judicially, of any information, statement, or admission disclosed or made in the course of a family group conference.

(2)

Nothing in subsection (1) applies to a record made by a care and protection co-ordinator under section 29(3).

38 Proceedings of family group conference not to be published

(1)

Subject to subsection (2), no person shall publish any report of the proceedings of any family group conference.

(2)

Nothing in subsection (1) applies to the publication of—

(a)

statistical information relating to family group conferences:

(b)

the results of any bona fide research relating to family group conferences.

(3)

In no case shall it be lawful to publish, in any report of the proceedings of any family group conference, any particulars that are identifiable by any person (other than the person to whom those particulars relate) as particulars relating to any particular person who was the subject of, or a participant in, that family group conference.

(4)

Every person who contravenes subsection (1) or subsection (3) commits an offence and is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $2,000:

(b)

in the case of a body corporate, to a fine not exceeding $10,000.

Section 38(4): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

Powers to remove child or young person

39 Place of safety warrants

(1)

Any District Court Judge or, if no District Court Judge is available, any issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012) who, on application in writing verified in accordance with section 99 of that Act, is satisfied that there are reasonable grounds for suspecting that a child or young person is suffering, or is likely to suffer, ill-treatment, neglect, deprivation, abuse, or harm may issue a warrant authorising any constable or a social worker, either by name or generally, to search for the child or young person.

(2)

An application for a warrant under subsection (1) may be made by a constable or a social worker.

(3)

Any person authorised by warrant under this section to search for any child or young person may—

(a)

enter and search, by force if necessary, any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place:

(b)

if that person believes, on reasonable grounds, that the child or young person has suffered, or is likely to suffer, ill-treatment, serious neglect, abuse, serious deprivation, or serious harm,—

(i)

remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the chief executive; or

(ii)

where the child or young person is in a hospital, direct the medical superintendent of that hospital to keep that child or young person in that hospital.

(4)

Where any direction is issued pursuant to subsection (3)(b)(ii) in respect of any child or young person, that child or young person shall be deemed to have been placed in the custody of the chief executive pursuant to this section.

Compare: 1974 No 72 s 7(1)–(3)

Section 39(1): amended, on 1 October 2012, by section 207(1) of the Search and Surveillance Act 2012 (2012 No 24).

Section 39(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 39(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 39(3)(b)(i): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 39(4): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

40 Warrant to remove child or young person

(1)

Where an application for a declaration under section 67 has been made in respect of a child or young person, any District Court Judge or, if no District Court Judge is available, any issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012) may, on application in writing verified in accordance with section 99 of that Act, where there are reasonable grounds for believing that the child or young person is—

(a)

suffering, or is likely to suffer, ill-treatment, serious neglect, abuse, serious deprivation, or serious harm; or

(b)

so seriously disturbed as to be likely—

(i)

to act in a manner harmful to the child or young person or any other person; or

(ii)

to cause serious damage to property,—

issue a warrant authorising any constable or a social worker, either by name or generally, to search for the child or young person.

(2)

An application for a warrant under subsection (1) may be made by a constable or a social worker.

(3)

The alleged commission of an offence shall not of itself be sufficient grounds for the issue of a warrant under this section.

(4)

Any person authorised by warrant under this section to search for any child or young person may—

(a)

enter and search, by force if necessary, any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place:

(b)

either—

(i)

remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the chief executive; or

(ii)

where the child or young person is in a hospital, direct the medical superintendent of that hospital to keep that child or young person in that hospital.

(5)

Where any direction is issued pursuant to subsection (4)(b)(ii) in respect of any child or young person, that child or young person shall be deemed to have been placed in the custody of the chief executive pursuant to this section.

Compare: 1974 No 72 s 28(1)–(3)

Section 40(1): amended, on 1 October 2012, by section 207(2) of the Search and Surveillance Act 2012 (2012 No 24).

Section 40(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 40(4)(b)(i): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 40(5): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

41 Person executing warrant to produce evidence of authority and identity
[Repealed]

Section 41: repealed, on 2 September 1996, by section 2(2) of the Children, Young Persons, and Their Families Amendment Act 1996 (1996 No 112).

42 Search without warrant

(1)

Any constable who believes on reasonable grounds that it is critically necessary to protect a child or young person from injury or death may, without warrant,—

(a)

enter and search, by force if necessary, any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place:

(b)

remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the chief executive.

(2)

Every constable who exercises any powers conferred by subsection (1) shall, on first entering any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place, and if requested, at any subsequent time,—

(a)

produce evidence of identity; and

(b)

disclose that those powers are being exercised under this section.

(3)

A constable who exercises the power conferred by subsection (1) shall, within 3 days after the day on which the power is exercised, forward to the Commissioner of Police a written report on the exercise of the power and the circumstances in which it came to be exercised.

Compare: 1974 No 72 s 8

Section 42(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 42(1)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 42(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 42(3): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

43 Placement of child or young person placed in custody of chief executive

(1)

Subject to subsection (2), where a child or young person is placed in the custody of the chief executive pursuant to section 39 or section 40 or section 42, the chief executive may place the child or young person with—

(a)

a parent or guardian of the child or young person; or

(b)

any other person who previously had the care of the child or young person; or

(c)

any member of the child’s or young person’s family, whanau, or family group; or

(d)

any person approved by a social worker.

(2)

If it is not practicable or appropriate to place the child or young person with any of the persons specified in any of paragraphs (a) to (d) of subsection (1), the chief executive may place the child or young person in a residence.

(3)

Where a child or young person is placed in the custody of the chief executive pursuant to section 39 or section 40 or section 42, the chief executive may, at any time, release the child or young person from that custody.

Section 43 heading: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 43(1): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 43(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 43(3): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

44 Parent or guardian may apply for release of or access to child or young person

(1)

Where a child or young person is placed in the custody of the chief executive pursuant to section 39 or section 40 or section 42, any parent or guardian or other person previously having the care of the child or young person may apply to the court for the release of that child or young person, or for access to that child or young person while he or she is in the custody of the chief executive, and the court may make any order that it is empowered to make under section 46.

(2)

An application may be made under subsection (1) at any time before the child or young person is released from the custody of the chief executive or is brought before the court in accordance with section 45.

Section 44(1): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 44(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

45 Child or young person placed in custody of chief executive to be brought before court within 5 days unless sooner released

A child or young person who is placed in the custody of the chief executive pursuant to section 39 or section 40 or section 42

(a)

shall be brought before the court not later than the fifth day after the date on which that child or young person is so placed, unless, before that day,—

(i)

the child or young person is released from that custody; or

(ii)

an order is made under section 78 with respect to the custody of that child or young person:

(b)

may be kept in the custody of the chief executive until the child or young person is brought before the court in accordance with paragraph (a), or for such further period as may be directed by a Family Court Judge.

Section 45 heading: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 45: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 45(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

46 Powers of court where application made under section 44 or child or young person brought before court under section 45

Where an application is made to the court under section 44, or a child or young person is brought before the court pursuant to section 45, the court may—

(a)

make an order—

(i)

directing that the child or young person be released from custody; and

(ii)

subject to any order in force under the Care of Children Act 2004 and relating to who has the role of providing day-to-day care for the child or young person, directing that the role of providing day-to-day care for the child or young person be exercised by any person the court thinks fit:

(b)

if an application for a declaration under section 67 has been made in respect of the child or young person, make an order under section 78 relating to the custody of the child or young person pending the determination of the application:

(c)

make any order that it is empowered to make under section 121.

Section 46(a)(ii): replaced, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

47 Social worker or constable to furnish report to Commissioner where child or young person released before required to be brought before court

(1)

Where—

(a)

a child or young person is placed in the custody of the chief executive pursuant to section 39 or section 40 or section 42; and

(b)

the child or young person is released from that custody before the child or young person is required by section 45(a) to be brought before the court,—

the social worker or constable who placed the child or young person in that custody shall, as soon as practicable after the release of the child or young person, send to the Commissioner a report containing the details required by subsection (2).

(2)

The details to be included in a report required by subsection (1) in relation to the placing of a child or young person in the custody of the chief executive are as follows:

(a)

where the child or young person was placed in the custody of the chief executive pursuant to a warrant issued under section 39 or section 40, the grounds on which that warrant was issued and the reasons why the child or young person was so placed:

(b)

where the child or young person was placed in the custody of the chief executive pursuant to section 42, the reasons why the child or young person was so placed:

(c)

where and with whom the chief executive placed the child or young person while the child or young person was in the chief executive’s custody:

(d)

whether a medical examination of the child or young person was carried out pursuant to section 53, and, if so, the findings of that examination:

(e)

the reason for releasing the child or young person from the custody of the chief executive:

(f)

the details of any further action that the social worker or constable has taken, or is proposing to take, in relation to the child or young person.

Section 47 heading: amended, on 1 October 2008, pursuant to section 116(a)(i) of the Policing Act 2008 (2008 No 72).

Section 47(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 47(1)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 47(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 47(2)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 47(2)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 47(2)(c): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 47(2)(e): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 47(2)(f): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

48 Unaccompanied children and young persons

(1)

Where a child or young person is found unaccompanied by a parent or guardian or other person who usually has the care of the child or young person in a situation in which the child’s or young person’s physical or mental health is being, or is likely to be, impaired, a constable may, using such force as may reasonably be necessary, take the child or young person and—

(a)

with the consent of the child or young person, deliver the child or young person into the custody of a parent or guardian or other person usually having the care of the child or young person; or

(b)

if—

(i)

the child or young person does not wish to be returned to a parent or guardian or other person having the care of the child or young person; or

(ii)

no parent or guardian or other such person is willing or able to have custody of the child or young person,—

place the child or young person in the custody of the chief executive by delivering the child or young person to a social worker.

(2)

Placement of a child or young person in the custody of the chief executive shall be sufficient authority for the detention of the child or young person by a social worker or in a residence under this Act until—

(a)

the child or young person agrees to being returned to a parent or guardian or other person usually having the care of the child or young person who is willing to have the care of the child or young person; or

(b)

an application is made to the court for a declaration under section 67 and the child or young person is brought before the court for the purpose of determining whether the child or young person is to be held in custody pending the disposal of the application; or

(c)

where the circumstances of the case indicate that the child or young person is, or may be, in need of care or protection, the expiry of 5 days after the day on which the child or young person was placed in custody, or in any other case, 3 days after that date—

whichever first occurs.

(3)

In subsections (1) and (2) the term young person means a person of or over the age of 14 years but under the age of 17 years.

Compare: 1974 No 72 s 12; 1981 No 113 s 50; 1982 No 135 s 4

Section 48(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 48(1)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 48(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 48(3): amended, on 8 January 1995, by section 8 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Medical examination of child or young person

49 Court may order medical examination of child or young person

(1)

Where the court is satisfied—

(a)

that there are reasonable grounds for suspecting that a child or young person is suffering ill-treatment, abuse, neglect, deprivation, or serious harm; and

(b)

that it is expedient that a medical examination of that child or young person be carried out for the purpose of determining whether that suspicion is well-founded,—

the court may order the child or young person to attend for a medical examination by a medical practitioner.

(2)

An application for an order under subsection (1) may be made by a social worker or a constable.

(3)

Every application for an order under subsection (1) shall be served on the barrister or solicitor representing the child or young person and on such other persons as the court directs.

(4)

The following persons shall be entitled to appear and be heard on the hearing of an application under this section:

(a)

the applicant:

(b)

any person on whom the application is served:

(c)

with the leave of the court, any other person.

Section 49(1): amended, on 18 September 2004, by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48).

Section 49(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

50 Ex parte application for order for medical examination

(1)

An order may be made under section 49 on an ex parte application if the court is satisfied—

(a)

that the delay that would be caused by proceeding on notice would or might entail risk to the personal safety of the child or young person who is the subject of the application; or

(b)

that proceeding on notice would be likely to prejudice investigations into whether the child or young person is in need of care or protection.

(2)

No order may be made under section 49 on an ex parte application unless the barrister or solicitor representing the child or young person has been given an opportunity to be heard.

(3)

Where an order is made under section 49 on an ex parte application, any person affected by the order may apply at any time for a variation or discharge of the order.

51 Court may impose conditions on order for medical examination

Any order under section 49 may be made on such terms and conditions as the court thinks fit, including restrictions on the nature of the medical examination that may be carried out and the procedures that may be used to carry out that examination.

52 Medical practitioner to prepare report on examination

(1)

Every medical practitioner who carries out a medical examination of a child or young person pursuant to an order under section 49 shall forthwith prepare a written report of the results of that examination and shall supply that report to the court.

(2)

A copy of every report supplied to the court pursuant to subsection (1) shall be given by the Registrar to—

(a)

every person entitled to appear and be heard on the application to which the report relates:

(b)

any other person whom the court considers has a proper interest in receiving a copy of the report.

53 Medical examination of child or young person at request of social worker

(1)

This section applies to any child or young person—

(a)

in respect of whom a warrant has been issued under section 39; or

(b)

who is placed in the custody of the chief executive under that section or under section 40 or section 42.

(2)

A social worker may, with the consent of any parent or guardian of the child or young person, arrange for any child or young person to whom this section applies to be medically examined by a medical practitioner.

(3)

Where, after making reasonable efforts to do so, a social worker does not obtain the consent of a parent or guardian of a child or young person to a medical examination under subsection (2), a social worker may require the child or young person to be medically examined by a medical practitioner.

Section 53(1)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 53(2): amended, on 18 September 2004, by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48).

Section 53(3): amended, on 18 September 2004, by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48).

54 Child or young person entitled to have adult present

Every child or young person who is medically examined under section 53 is entitled to have present during that examination 1 adult—

(a)

who is nominated for that purpose by that child or young person or, if the age or level of maturity of the child or young person makes it impracticable for him or her to make such a nomination, by a social worker; and

(b)

who consents to be present.

55 Restrictions on internal examinations and examinations under general anaesthetic

(1)

No medical examination carried out under section 53 shall include any internal examination of the genitals or anus of any child or young person unless—

(a)

the medical practitioner carrying out the examination believes that the child or young person may have been subject to recent physical or sexual abuse involving either or both of those parts of the body; and

(b)

the child or young person consents to such an examination of that part of the body.

(2)

No medical examination carried out under section 53 shall include any medical procedure that involves the administration of a general anaesthetic to the child or young person.

(3)

Nothing in subsection (1)(b) requires the consent of any child or young person to any examination if the age or level of maturity of the child or young person makes it impracticable to obtain such consent.

56 Medical practitioner to prepare report on examination

Every medical practitioner who carries out a medical examination of a child or young person under section 53 shall forthwith prepare a written report of the results of that examination and shall supply that report to the social worker by whom the examination was arranged or required, as the case may be.

57 Social worker to make report to chief executive

A social worker who exercises the power under section 53(3) to require a medical examination to be carried out shall, within 3 days after the day on which that examination is carried out, forward to the chief executive a written report on the exercise of that power and the circumstances in which it came to be exercised.

Section 57 heading: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 57: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

58 Fees for reports prepared under section 52 or section 56

Where any person prepares a report pursuant to section 52 or section 56, the fees and expenses of that person shall be paid—

(a)

out of money appropriated by Parliament for the purpose; or

(b)

if the court so decides, by such party or parties to the proceedings as the court may order.

Production of documents relevant to investigation

59 Application for production of documents relevant to investigation of whether child or young person in need of care or protection

(1)

Subject to subsection (4), where—

(a)

any social worker or constable believes, on reasonable grounds, that any person has in that person’s possession, custody, or power any document that contains, or that the social worker or constable considers is likely to contain, information necessary or relevant for the purpose of determining whether any child or young person is in need of care or protection (other than on the ground specified in section 14(1)(e)); and

(b)

that person has refused to allow that document to be inspected by that social worker or constable,—

that social worker or constable may apply to the court for an order requiring that person to produce that document for inspection by that social worker or constable.

(2)

Subject to section 60, notice of an application under subsection (1) for an order for the production of a document shall be given by the applicant to the person in respect of whom the order is sought and to such other person or persons as the court directs.

(3)

The applicant and every person to whom notice of an application under subsection (1) is given shall be entitled to appear and be heard on the hearing of the application.

(4)

Nothing in subsection (1) applies in respect of any document the production of which would breach legal professional privilege.

Section 59(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 59(1)(a): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 59(1)(b): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

60 Ex parte application for order for production of document

(1)

An order may be made under section 61 on an ex parte application if the court is satisfied that proceeding on notice would be likely to prejudice investigations into whether a child or young person is in need of care or protection.

(2)

Where an order is made under section 61 on an ex parte application, the person in respect of whom the order is made, or any other person affected by the order, may apply at any time for a variation or discharge of the order.

61 Court may order document to be produced

(1)

Where an application is made under section 59 for the production of any document, and the court is satisfied that the document contains information necessary or relevant for the purpose of determining whether any child or young person is in need of care or protection (other than on the ground specified in section 14(1)(e)), the court may, subject to section 59(4), order the person named in the application as the person who has the document in that person’s possession, custody, or power to produce that document for inspection by the applicant.

(2)

The court may inspect any document for the purpose of determining whether to make an order under this section for the production of that document, and for that purpose may order that document to be produced to the court.

(3)

Every person commits an offence and is liable on conviction to a fine not exceeding $2,000 who, being a person who is ordered pursuant to this section to produce any document, refuses or fails to comply with that order.

Section 61(3): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

62 Section 61 to apply notwithstanding any enactment or rule of law

(1)

Subject to section 59(4), section 61 applies notwithstanding any enactment, or any rule of law, that obliges any person to maintain secrecy in relation to, or not to disclose, any matter, and any compliance with that section is not a breach of the relevant obligation of secrecy or non-disclosure or of the enactment or rule of law by which that obligation is imposed.

(2)

Subject to section 59(4), no person shall be excused from producing any document under section 61

(a)

on the ground that the production of that document could or would tend to incriminate that person or subject that person to any penalty or forfeiture; or

(b)

on the ground of any other privilege that could otherwise be claimed by that person in relation to the production of the document in any proceedings in a court.

63 Right to remove, retain, and make copies of document produced under section 61

A social worker or constable to whom a document is produced for inspection under section 61 may—

(a)

remove and retain that document for so long as is necessary for a full inspection of that document:

(b)

make copies of that document.

Section 63: amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

64 Document produced under section 61 not to be used for any other purpose

(1)

A social worker or constable to whom a document is produced for inspection under section 61

(a)

shall make use of that document, and any copy of that document taken pursuant to section 63(b), only for the purposes of this Part; and

(b)

except for the purposes of this Part, shall not disclose that document, or any copy of that document taken pursuant to section 63(b), to any other person.

(2)

Every person commits an offence and is liable on conviction to a fine not exceeding $2,000 who contravenes subsection (1).

Section 64(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 64(2): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

65 Use of documents in subsequent proceedings

(1)

No document produced, pursuant to an order under section 61, to any social worker or constable shall be admissible as evidence in any proceedings under this Act or any other Act if, but for the provisions of section 62, that document could not, by virtue of any enactment, rule of law, or privilege, have been ordered to be so produced.

(2)

No document or information shall be privileged from being given in evidence in any proceedings under this Act or any other Act, and no objection to the admissibility of any document or information in any such proceedings shall be upheld, merely because the document or information was obtained as a result of the production of any document pursuant to an order under section 61.

Section 65(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

66 Government departments may be required to supply information

(1)

Every government department, agent, or instrument of the Crown and every statutory body shall, when required, supply to every care and protection co-ordinator, social worker, or constable such information as it has in its possession relating to any child or young person where that information is required—

(a)

for the purposes of determining whether that child or young person is in need of care or protection (other than on the ground specified in section 14(1)(e)); or

(b)

for the purposes of any proceedings under this Part.

(2)

No information obtained pursuant to subsection (1)—

(a)

shall be used for the purposes of investigating any offence:

(b)

shall be admissible as evidence in any proceedings other than proceedings under this Part.

(3)

Nothing in subsection (1) limits or affects the Official Information Act 1982.

Section 66(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Proceedings in respect of children and young persons in need of care or protection

67 Grounds for declaration that child or young person is in need of care or protection

(1)

A court may, on application, where it is satisfied on any of the grounds specified in section 14(1) that a child or young person is in need of care or protection, make a declaration that the child or young person is in need of care or protection.

(2)

However, on an application under section 18A(4)(a) or 18D in relation to a person to whom section 18A applies, if the court is satisfied that the subsequent child is in need of care or protection on the ground in section 14(1)(ba), it must make the declaration unless it is satisfied that the parent has demonstrated that he or she meets the requirements of section 18A(3).

Compare: 1974 No 72 s 27(2); 1977 No 126 s 7(1)

Section 67(2): inserted, on 30 June 2016, by section 17 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

68 Application for declaration that child or young person is in need of care or protection

An application for a declaration that a child or young person is in need of care or protection may be made by—

(a)

a social worker; or

(b)

a constable; or

(c)

with the leave of the court, any other person.

Compare: 1974 No 72 s 27(1)

Section 68(b): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

69 Joint applications

An application for a declaration that a child or young person is in need of care or protection may be made jointly by a social worker or constable and a parent or guardian or other person having the care of the child or young person.

Section 69: amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

70 No application to be made unless family group conference has been held

(1)

Subject to subsection (2), no application for a declaration that a child or young person is in need of care or protection may be made unless a family group conference has been held under this Part (or, in the case of an application on the ground specified in section 14(1)(e), under Part 4) in relation to the matter that forms the ground on which the application is made.

(2)

Subsection (1) does not apply where—

(a)

the child or young person in respect of whom the application is made has been placed in the custody of the chief executive under section 39 or section 42; or

(b)

the applicant believes that the interests of the child or young person in respect of whom the application is made require that an interim restraining order be granted as a matter of urgency, and an application for such an order is made at the same time as the application; or

(ba)

an application for a custody order under section 78 is made at the same time as the application, and the applicant believes,—

(i)

where the application is made on the ground specified in section 14(1)(e),—

(A)

that it is not possible to make suitable alternative arrangements for the custody of the child in respect of whom the application is made pending the determination of the application; or

(B)

that it is in the public interest that the child be held in custody pending the determination of the application:

(ii)

in any other case, that the interests of the child or young person in respect of whom the application is made require that such a custody order be granted as a matter of urgency; or

(c)

the application is made on the ground specified in section 14(1)(g) and, after reasonable enquiries, it is not possible to ascertain the whereabouts of any member of the family, whanau, or family group of the child or young person to whom the application relates.

(3)

Where, pursuant to any of paragraphs (a) to (ba) of subsection (2), an application for a declaration under section 67 is made without a family group conference having been held, the Registrar shall forthwith refer the application to,—

(a)

in the case of an application made on the ground specified in section 14(1)(e), a youth justice co-ordinator; or

(b)

in any other case, a care and protection co-ordinator—

for the purposes of convening a family group conference.

Section 70(2)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 70(2)(a): amended, on 1 November 1989, by section 6(1)(a) of the Children, Young Persons, and Their Families Amendment Act 1989 (1989 No 70).

Section 70(2)(b): replaced, on 8 January 1995, by section 9(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 70(2)(ba): inserted, on 8 January 1995, by section 9(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 70(3): replaced, on 8 January 1995, by section 9(2) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

71 Court may make declaration in absence of proof of responsibility for neglect or ill-treatment of child or young person

Where—

(a)

an application for a declaration that a child or young person is in need of care or protection is made on any of the grounds specified in paragraph (a) or paragraph (b) of section 14(1); and

(b)

the court is satisfied that, but for the failure of the evidence to establish that a parent or guardian of the child or young person or a person having the care of the child or young person is culpable in relation to the harm suffered by the child or young person, the grounds for making the declaration are made out,—

the court may find those grounds made out.

Compare: 1974 No 72 s 29A; 1983 No 129 s 6(1)

72 Court not to make declaration unless family group conference held

(1)

Subject to subsection (2), the court shall not make a declaration under section 67 that a child or young person is in need of care or protection unless a family group conference has been held under this Part (or, in the case of an application on the ground specified in section 14(1)(e), under Part 4) in relation to the matter that forms the ground of the application.

(2)

Nothing in subsection (1) applies in respect of any application to which section 70(2)(c) applies.

(3)

Where an application is made to the court for a declaration under section 67, the court may, at any stage of the hearing of that application, on the application of any party to the proceedings or of its own motion, direct a care and protection co-ordinator to convene a family group conference in relation to the matter that forms the ground of the application.

73 Court not to make declaration unless satisfied that child’s or young person’s need for care or protection cannot be met by other means

(1)

The court shall not make a declaration under section 67 that a child or young person is in need of care or protection unless it is satisfied that it is not practicable or appropriate to provide care or protection for the child or young person by any other means, including the implementation of any decision, recommendation, or plan made or formulated by a family group conference convened in relation to that child or young person.

(2)

In deciding whether or not to make a declaration under section 67 that a child or young person is in need of care or protection on any of the grounds specified in paragraph (a) or paragraph (b) of section 14(1), the court shall take into account, among other things, any evidence before the court—

(a)

that the kind of harm suffered by the child or young person will neither continue nor be repeated:

(b)

that a parent or guardian or other person having the care of the child or young person will be capable of ensuring that the kind of harm suffered by the child or young person will be neither continued nor repeated.

Counselling

74 Court may require parties to undergo counselling

(1)

Where an application is made to the court for a declaration under section 67 in relation to a child or young person, the court may direct all or any of the following persons to participate in counselling of a nature specified by the court:

(a)

the child or young person in respect of whom the application is made:

(b)

any parent or guardian of the child or young person or any person having the care of the child or young person:

(c)

where the application is accompanied by or joined with an application for a restraining order or an interim restraining order, any person in respect of whose conduct that order or interim order is sought.

(2)

Where a direction made under subsection (1) does not specify the person who is to undertake the counselling, the direction shall be referred to the Registrar of the court, and that Registrar shall, on receipt of the direction, refer to an appropriate counsellor the person or persons in respect of whom the direction is given.

(3)

In determining, for the purposes of any direction made under subsection (1), the nature of the counselling and the person who is to carry out the counselling, the court or Registrar, as the case may be, shall have regard to the views of the person or persons in respect of whom that direction is given.

Compare: 1980 No 94 s 10

75 Counsellor to arrange meeting and submit report on outcome

(1)

Where a direction is made under section 74(1), the counsellor who is to undertake the counselling shall—

(a)

arrange to meet the person or persons in respect of whom the direction is given; or

(b)

by letter sent by post request that person or those persons to attend before the counsellor at a specified time and place—

for the purpose of the counselling.

(2)

As soon as practicable after a direction is made under section 74, the person undertaking the counselling pursuant to that direction shall submit a written report to the court on the outcome of that counselling.

Compare: 1980 No 94 s 11

76 Fees

Any fees charged by any counsellor in respect of any counselling carried out pursuant to any direction made under section 74 shall, to the extent that those fees are reasonable, be paid out of a Crown Bank Account from money appropriated by Parliament for the purpose.

Section 76: amended, on 25 January 2005, pursuant to section 83(7) of the Public Finance Act 1989 (1989 No 44).

77 Privilege

(1)

No evidence shall be admissible in any court, or before any person acting judicially, of any information, statement, or admission disclosed or made to any person in the course of carrying out that person’s functions as a counsellor pursuant to a direction made under section 74.

(2)

Except to the extent that it is necessary for a counsellor to do so in the proper discharge of that person’s functions, every person who acts as a counsellor pursuant to a direction made under section 74 commits an offence and is liable on conviction to a fine not exceeding $1,000 who discloses to any other person any information, statement, or admission received by or made to that person in the exercise of that person’s functions pursuant to such a direction.

Compare: 1980 No 94 s 18

Section 77(2): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

Custody of child or young person pending determination of proceedings

Heading: replaced, on 8 January 1995, by section 10 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

78 Custody of child or young person pending determination of proceedings

(1)

In any proceedings in a court under Part 2 in relation to a child or young person, the court may, on the application of any party to the proceedings, or a barrister or solicitor representing the child or young person, or of its own motion, make an order relating to the custody of the child or young person pending the determination of the proceedings.

(2)

Without limiting the generality of subsection (1), the court may make an order under that subsection in relation to a child or young person in the following cases:

(a)

where the child or young person has been placed in the custody of the chief executive pursuant to section 39 or section 40 or section 42 and is brought before the court pursuant to section 45:

(b)

where the court is satisfied that the child or young person is in need of care or protection for the period of the order:

(c)

in the case of an application for a declaration under section 67 on the ground specified in section 14(1)(e), where—

(i)

it is not possible to make suitable alternative arrangements for the custody of the child pending the determination of the application; or

(ii)

it is in the public interest that the child be held in custody pending the determination of the application:

(d)

where the court has made a declaration under section 67 and has adjourned the proceedings pending their disposition:

(e)

where an application for a variation or discharge of any order (or the variation or discharge of any condition of any order) is made to the court under section 125, at any time before such application is finally disposed of:

(f)

where a report is furnished to the court pursuant to section 135, at any time before the court has completed its consideration of the report and accompanying revised plan under section 137.

(3)

An order under subsection (1) may be made on such terms and conditions as the court thinks fit.

Section 78: replaced, on 8 January 1995, by section 10 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 78(2)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

79 Persons who may be granted custody under section 78

(1)

An order made under section 78 may place a child or young person in the custody of any of the following persons:

(a)

the chief executive:

(b)

an iwi social service:

(c)

a cultural social service:

(d)

the director of a child and family support service:

(e)

any other person.

(2)

The court shall not make an order under section 78 placing any child or young person in the custody of any person (other than the chief executive) unless that person consents to the making of the order.

Section 79(1)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 79(1)(b): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 79(1)(c): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 79(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

80 Effect of order made under section 78

Section 104, section 105 (other than paragraph (a), paragraph (b)(i), and paragraph (c) of subsection (1) of that section), section 106, and section 107, so far as applicable and with all necessary modifications, shall apply with respect to every order made under section 78 as if it were an order made under section 101.

81 Placement of child or young person under order made under section 78

(1)

Where, pursuant to an order made under section 78, a child or young person is placed in the custody of any person (being the chief executive or an iwi social service or a cultural social service or the director of a child and family support service), that order is sufficient authority for that person to place the child or young person—

(a)

with a member of the child’s or young person’s family, whanau, or family group:

(b)

where the child or young person is placed in the custody of the chief executive, in a residence.

(2)

Subject to subsection (1), the person in whose custody a child or young person is so placed may, from time to time, during the currency of the order, change the placement of the child or young person.

Compare: 1974 No 72 s 43(8)

Section 81: replaced, on 8 January 1995, by section 11 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 81(1): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 81(1)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

82 Child or young person may be returned to person who previously had care

(1)

This section applies where a child or young person is placed in the custody of the chief executive, an iwi social service, a cultural social service, or the director of a child and family support service pursuant to an order made under section 78.

(2)

Subject to subsection (5), where this section applies, the person in whose custody the child or young person is placed may, at any time before the order expires or is discharged, if that person considers it appropriate to do so, return the child or young person to the custody of the parent or guardian or other person who had the care of the child or young person immediately before the order was made.

(3)

The person so returning the child or young person may impose such conditions relating to the supervision of the child or young person as that person thinks fit.

(4)

Subject to subsection (5), where,—

(a)

pursuant to subsection (2), a child or young person is returned to the custody of another person; and

(b)

at any time before the order made under section 78 expires or is discharged, the person so returning the child or young person considers that it is no longer desirable in the interests of the child or young person that he or she be in the custody of that other person,—

the person may direct that other person to return the child or young person to the custody of that person.

(5)

No person shall—

(a)

return a child or young person to the custody of any other person pursuant to subsection (2); or

(b)

issue a direction under subsection (4) in relation to a child or young person—

without first consulting with the barrister or solicitor representing that child or young person.

(6)

Where a person gives a direction under subsection (4),—

(a)

any social worker acting under the specific or general authority of that person may—

(i)

remove the child or young person to whom the direction relates, using such force as is reasonably necessary for the purpose; and

(ii)

place the child or young person with such person, or (where the person giving the direction is the chief executive) in such residence, as the person giving the direction thinks fit:

(b)

subsections (2) and (3) of section 105 shall apply, so far as applicable and with all necessary modifications, in relation to the removal of the child or young person pursuant to the direction.

Section 82: replaced, on 8 January 1995, by section 11 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 82(1): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 82(6)(a)(ii): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Orders under this Part

83 Orders of court on making of declaration

(1)

Where the court makes a declaration under section 67 relating to a child or young person, it may do 1 or more of the following things:

(a)

discharge the child or young person, or any parent or guardian or other person having the care of the child or young person, or both, from the proceedings without further order:

(b)

order that the child or young person, or any parent or guardian or other person having the care of the child or young person, or both, come before the court, if called upon within 2 years of the making of the order, so that the court may take further action under this section:

(c)

order 1 or more of the following persons to receive counselling from such person or persons, and subject to such conditions, as are specified by the court:

(i)

the child or young person:

(ii)

any parent or guardian or other person having the care of the child or young person:

(iii)

any person in respect of whose conduct a restraining order or an interim restraining order was sought or made in the proceedings:

(d)

make a services order under section 86:

(e)

make a restraining order under section 87:

(f)

make a support order under section 91:

(g)

make a custody order under section 101:

(h)

make an order under section 110 appointing a guardian of the child or young person.

(2)

Where the court makes an order under subsection (1)(c), sections 74 to 77 shall apply, with all necessary modifications, with respect to that order as if it were a direction made under section 74(1).

Compare: 1974 No 72 s 31(1)(b), (c), (d), (h); 1983 No 129 s 7(1)

84 Power to make other orders where declaration made on ground of child’s offending

(1)

Where the court makes a declaration under section 67 in relation to a child, and the declaration is made on the ground specified in section 14(1)(e), the court may, in addition to or instead of making any order referred to in section 83(1), make any 1 or more of the following orders:

(a)

an order admonishing the child:

(b)

where the court is satisfied that any person (other than the child) suffered—

(i)

any emotional harm; or

(ii)

any loss of or damage to property—

through or by means of the child’s offending, an order directing the child, or any parent or guardian of the child, to pay to the person who suffered the emotional harm or the loss of or damage to property such sum as it thinks fit by way of reparation:

(c)

an order directing the child, or any parent or guardian or other person having the care of the child, to deliver to the person who appears to the court to be entitled to it any property in the possession of the child or in the possession of any person for the child:

(d)

an order for the forfeiture of property to the Crown in any case where the forfeiture of that property would have been obligatory or could have been ordered under any enactment applicable to the offence if the child were an adult and had been convicted of an offence by a District Court.

(2)

Any sum ordered to be paid pursuant to subsection (1)(b) in respect of the loss of or damage to property shall be limited to the cost of replacement or (as the case may require) the cost of repair, and shall not include any loss or damage of a consequential nature.

(3)

No order shall be made under subsection (1)(b) against the chief executive or any other person who has been appointed to be a guardian of the child under section 110.

(4)

No order shall be made under subsection (1)(b) in respect of the parent or guardian of the child unless that parent or guardian has been informed by the court of the proposal to make the order and has been given an opportunity to make representations to the court.

Compare: 1974 No 72 s 31(1)(e), (f), (g); 1985 No 120 s 22(5); 1987 No 168 s 4

Section 84(3): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

85 Recall to come before court

(1)

Where the court makes an order under section 83(1)(b), the court may, at any time during the duration of the order, direct, on the application of—

(a)

a social worker; or

(b)

a constable; or

(c)

the applicant in the proceedings in which the order was made,—

the issue to the person in respect of whom the order was made of a summons, in a form prescribed for the purposes of this subsection by rules of court, to appear before the court.

(2)

Where a person appears before the court on a summons issued under subsection (1), the court may consider the matter and after taking into account such factors as may be relevant since the making of the order, exercise any of the powers conferred on it under section 83 or section 84 except—

(a)

the power conferred by section 83(1)(b); and

(b)

where any power conferred by paragraph (b), paragraph (c), or paragraph (d) of section 84(1) was exercised in the first instance, any such power.

Compare: 1974 No 72 s 31(2)

Section 85(1): amended, on 13 September 2002, by section 6 of the Family Courts Amendment Act 2000 (2000 No 65).

Section 85(1)(b): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Services orders

86 Services orders

(1)

Where the court makes a declaration under section 67 in relation to a child or young person, it may—

(a)

make an order directing the chief executive or any other person or organisation named in the order to provide such services and assistance as may be specified in the order for such period and on such terms and conditions as may be specified to a parent or guardian or other person having the care of the child or young person:

(b)

make an order directing the chief executive or any other person or organisation named in the order to provide such services and assistance as may be specified in the order for such period and on such terms and conditions as may be specified to the child or young person.

(2)

The court shall not make an order under subsection (1) unless the chief executive (where the order is to be directed to the chief executive) or the person or organisation that would be required to provide services and assistance pursuant to the order (in any other case)—

(a)

is given notice of the court’s intention to consider making the order; and

(b)

is given an opportunity to appear and be heard by the court before the order is made; and

(c)

subject to subsection (3), consents to the making of the order.

(3)

An order directing the chief executive to provide services and assistance may be made under this section without the consent of the chief executive, but only if the court, after having regard to any reasons advanced on behalf of the chief executive as to why the order should not be made, is satisfied—

(a)

that requiring the chief executive to provide those services and assistance is not clearly impracticable; and

(b)

that the child or young person in respect of whom the court proposes to make an order under this section is in the care of a person or organisation clearly consistently with the principles set out in sections 5, 6, and 13.

Section 86: replaced, on 8 January 1995, by section 12 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 86(1)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 86(1)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 86(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 86(3): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 86(3)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

86A Interim services orders

Where an application is made to the court for a declaration under section 67 in relation to a child or young person, the court may, on application by the applicant, or a barrister or solicitor representing the child or young person, or of its own motion, make such an order as it is empowered to make under section 86 pending the determination of the application.

Section 86A: inserted, on 8 January 1995, by section 12 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

86B No services orders in respect of permanent caregivers

(1)

Despite sections 86 and 86A, a court must not make a services order or an interim services order under either of those sections in respect of—

(a)

a person who is, or is to be made, a permanent caregiver of a child or young person; or

(b)

a child or young person who is, or is to be, in the care of a permanent caregiver.

(2)

If a services order or an interim services order in respect of a permanent caregiver, or in respect of a child or young person in the care of a permanent caregiver, is in force on the date on which this section comes into force,—

(a)

on and from that date, sections 134 to 137 have no effect so far as they relate to the order; and

(b)

the order ceases to have effect on the date on which it is next due for review.

Section 86B: inserted, on 30 June 2016, by section 18 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Restraining orders

87 Restraining orders

(1)

Where the court makes a declaration under section 67 in relation to a child or young person, it may, on or at any time after making that declaration, make an order restraining any person named in the order from doing all or any of the following things:

(a)

residing with the child or young person:

(b)

using or threatening violence or causing or threatening to cause physical harm to the child or young person:

(c)

molesting the child or young person by watching or besetting the child’s or young person’s place of residence, work, or education, or by following or waylaying the child or young person in any public place within the meaning of section 2 of the Summary Offences Act 1981, or by contacting the child or young person in any way:

(d)

molesting any person with whom the child or young person is residing by watching or besetting that person’s place of residence, work, or education, or by following or waylaying that person in any public place within the meaning of section 2 of the Summary Offences Act 1981, or by contacting that person in any way.

(2)

Subject to any rules of court empowering the court to make an order under this section on an ex parte application, the court shall not make an order under this section restraining the conduct of any person unless that person has been informed by the court of the proposal to make the order and has been given an opportunity to make representations to the court.

Section 87(2): amended, on 13 September 2002, by section 6 of the Family Courts Amendment Act 2000 (2000 No 65).

88 Interim restraining orders

Where an application is made to the court for a declaration under section 67 in relation to a child or young person, the court may, on application by the applicant, or a barrister or solicitor representing the child or young person, or of its own motion, make such an order as it is empowered to make under section 87 pending the determination of the application.

89 Offence to contravene restraining order or interim restraining order

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months, or to a fine not exceeding $2,000, who does any act in contravention of a restraining order or an interim restraining order.

Section 89: amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

90 When restraining order shall cease to have effect

Where the court makes an order under section 87 or section 88 in relation to a child or young person, that order shall cease to have effect when that child or young person attains the age of 20 years or sooner marries or enters into a civil union.

Section 90: amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

Support orders

91 Support orders

(1)

Where the court makes a declaration under section 67 in relation to a child or young person, it may make an order directing the chief executive or any other person or organisation named in the order to provide support to that child or young person for such period (not exceeding 12 months) as is specified in the order.

(2)

The court shall not make an order under subsection (1) unless the chief executive (where the order is to be directed to the chief executive) or the person or organisation that would be required to provide support pursuant to the order (in any other case)—

(a)

is given notice of the court’s intention to consider making the order; and

(b)

is given an opportunity to appear and be heard by the court before the order is made; and

(c)

subject to subsection (3), consents to the making of the order.

(3)

An order directing the chief executive to provide support may be made under this section without the consent of the chief executive, but only if the court, after having regard to any reasons advanced on behalf of the chief executive as to why the order should not be made, is satisfied—

(a)

that requiring the chief executive to provide those services and assistance is not clearly impracticable; and

(b)

that the child or young person in respect of whom the court proposes to make an order under this section is in the care of a person or organisation clearly consistently with the principles set out in sections 5, 6, and 13.

Section 91: replaced, on 8 January 1995, by section 13 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 91(1): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 91(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 91(3): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 91(3)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

92 Interim support orders

Where an application is made to the court for a declaration under section 67 in relation to a child or young person, the court may, on application by the applicant, or a barrister or solicitor representing the child or young person, or of its own motion, make such an order as it is empowered to make under section 91 pending the determination of the application.

92A Restriction on support orders where there is permanent caregiver

(1)

A court must not make a support order or an interim support order under section 91 or 92 of a kind referred to in subsection (2) in respect of a child or young person who is, or who is to be, in the care of a permanent caregiver.

(2)

The kind of order that must not be made is an order directing the chief executive or any other person or organisation to provide financial or other assistance that could be provided by the chief executive under section 388 or 388A, whether or not that assistance is actually provided.

Section 92A: inserted, on 30 June 2016, by section 19 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

93 Duty to provide support

Where an order is made under section 91 or section 92 in relation to a child or young person, it is the duty of the chief executive (where the order is directed to the chief executive) or the person or organisation directed to provide support pursuant to the order (in any other case)—

(a)

to monitor the standard of care, protection, and control being provided to, or exercised over, that child or young person; and

(b)

to provide, or co-ordinate the provision of, such services and resources (including financial services and resources), whether from the community or otherwise, as will ensure that appropriate care, protection, and control are provided to, or exercised over, that child or young person.

Section 93: replaced, on 8 January 1995, by section 14 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 93: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

94 Duty of chief executive to appoint social worker to provide support

Where, pursuant to section 91 or section 92, the chief executive is directed to provide support to a child or young person, the chief executive shall from time to time appoint a social worker to provide support to the child or young person on behalf of the chief executive.

Compare: 1974 No 72 s 45A; 1983 No 129 s 12(1)

Section 94 heading: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 94: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

95 Conditions of support order or interim support order

Where the court makes an order under section 91 or section 92 directing a person or organisation specified in the order to provide support to a child or young person, the following conditions shall apply:

(a)

the social worker or person or organisation that is to provide the support may, at all reasonable times, visit and enter the building or place in which the child or young person is living:

(b)

the child or young person shall not reside at an address at which, or with a person with whom, that social worker or person or organisation has directed the child or young person not to reside:

(c)

every person—

(i)

who is a parent or guardian or other person having the care of the child or young person; and

(ii)

with whom the child or young person is residing—

shall ensure that the social worker or person or organisation knows at all times of the address at which the child or young person is residing for the time being:

(d)

in the case of a child or young person in respect of whom a declaration is made on the ground specified in section 14(1)(d) or (e), the child or young person shall not associate with any specified person, or with persons of any specified class, with whom the social worker or person or organisation has, in writing, warned the child or young person not to associate.

Compare: 1974 No 72 s 46(1); 1983 No 129 s 12(1)

96 Power of court to impose additional conditions

(1)

The court, in making an order under section 91 or section 92 directing a person or organisation to provide support to a child or young person, may, in its discretion, impose any or all of the following conditions:

(a)

in the case of a child or young person in respect of whom a declaration is made on the ground specified in section 14(1)(d) or (e),—

(i)

that the child or young person shall not associate with any specified person or with persons of any specified class:

(ii)

that the child or young person attend and remain at, for such weekday, evening, and weekend hours each week and for such number of months as the court thinks fit, any specified centre that is approved by the department and that conducts educational, recreational, instructional, cultural, or work programmes, or sporting activity, and take part in such activity as may be required by the person in charge of the centre:

(iii)

in the case of a child in respect of whom a declaration is made on the ground specified in section 14(1)(e), such other conditions as the court thinks fit to reduce the likelihood of further offending by the child:

(b)

that the child or young person shall undergo any specified medical examination and treatment or any specified psychological or psychiatric examination, counselling, and therapy:

(c)

such conditions relating to the child’s or young person’s place of residence as the court thinks fit.

(2)

The court shall not impose a condition under subsection (1)(a)(ii) without the consent of the child or young person.

Compare: 1974 No 72 s 47(1)(d), (e), (g), (i); 1983 No 129 s 12(1)

97 Court may impose conditions in respect of parent, guardian, etc, of child or young person

(1)

The court, in making an order under section 91 or section 92 directing any person or organisation to provide support to a child, or to a young person of or over the age of 14 years and under 16 years, may impose such conditions as the court thinks fit for the purpose of assisting any parent or guardian or other person having the care of the child or young person, or any other person residing with the child or young person, to carry out their duties and responsibilities and to promote co-operation between the parents or other persons, the child or young person, and the social worker or person or organisation that is to provide support to the child or young person.

(2)

The court shall not impose any conditions under subsection (1) unless the parent or guardian or other person having the care of, or residing with, the child or young person has been given an opportunity to make representations to the court and the court has regard to those representations.

98 Court not to impose condition requiring medical treatment without person’s consent

The court shall not impose any condition under section 96 or section 97 requiring any person to undergo any medical, psychiatric, or psychological examination or treatment, or any psychological or psychiatric counselling or therapy, unless consent to the examination, treatment, or counselling is given—

(a)

in the case of a child or young person under the age of 16 years—

(i)

by a parent or guardian (not being the chief executive) of the child or young person; or

(ii)

if there is no such parent or guardian in New Zealand or no such parent or guardian can be found with reasonable diligence or is capable of giving consent, by a person in New Zealand who has been acting in the place of a parent; or

(iii)

if there is no person in New Zealand who has been so acting, or if no such person can be found with reasonable diligence or is capable of giving consent, by the court or the chief executive:

(b)

in the case of any other person, by that person.

Compare: 1974 No 72 s 47(1)(e); 1983 No 129 s 12(1)

Section 98(a)(i): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 98(a)(iii): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

99 Person or organisation providing support to child or young person to report to court

Where, pursuant to section 91, any person or organisation is directed to provide support to a child or young person, that person or organisation shall, on the expiry of the period specified in the order, furnish to the court a report in writing containing an assessment of the effectiveness of the order, the child’s or young person’s response to it, and such other information as that person or organisation considers relevant.

100 Failure to observe conditions of support order

(1)

Where the court makes an order under section 91 or section 92 directing any person or organisation to provide support to a child or young person, the chief executive or that person or organisation may, in any case where the child or young person or a parent or guardian or other person having the care of, or residing with, the child or young person has failed to comply with a condition of the order (including any condition imposed under section 96 or section 97), apply to the court for a declaration that the child or young person or the parent or guardian or other person having the care of, or residing with, the child or young person has failed to comply with the condition.

(2)

The court may, on any application under subsection (1), where it is satisfied that any child or young person or any parent or guardian or other person having the care of, or residing with, the child or young person has failed, without reasonable excuse, to comply with the condition of the order, make such a declaration and make any order under section 127 as if an application had been made under section 125 in relation to the order.

(3)

Every application under this section shall be served on—

(a)

the child or young person to whom the order relates; and

(b)

any parent or guardian or other person having the care of the child or young person; and

(c)

if the application relates to any person residing with the child or young person, that person.

Compare: 1974 No 72 s 48(1)–(3)

Section 100(1): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Custody orders

101 Custody orders

(1)

Where the court makes a declaration under section 67 in relation to a child or young person, it may make an order placing that child or young person in the custody of any of the following persons for such period as may be specified in the order:

(a)

the chief executive:

(b)

an iwi social service:

(c)

a cultural social service:

(d)

the director of a child and family support service:

(e)

any other person.

(2)

Any such order may be made on such terms and conditions as the court thinks fit.

(3)

The court shall not make an order under subsection (1) placing any child or young person in the custody of any person (other than the chief executive) unless that person consents to the making of the order.

Section 101(1)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 101(1)(b): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 101(1)(c): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 101(3): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

102 Interim custody orders

(1)

Where the court makes a declaration under section 67, it may, instead of making a final order under section 101, make an interim custody order under that section.

(2)

No interim custody order made pursuant to this section shall continue in force for more than 6 months after the date on which it is made.

(3)

Where an interim custody order is made pursuant to this section, the court may, on application by any person who was the applicant in the proceedings in which the order was made, or any person on whom the application in those proceedings was served in accordance with section 152, or the person in whose custody the child or young person was placed,—

(a)

make 1 but only 1 further interim custody order under section 101; or

(b)

make a final order under that section; or

(c)

make such other order referred to in section 83(1) or section 84(1) as the court thinks fit; or

(d)

dismiss the application.

103 Court may impose conditions to facilitate return of child or young person

Where the court makes an order under section 101 placing a child or young person in the custody of the chief executive or an iwi social service or a cultural social service or the director of a child and family support service, it may impose such conditions as it thinks fit for the purpose of facilitating the return of the child or young person to the parents or guardians or other persons previously having the care of the child or young person.

Section 103: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 103: amended, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

104 Effect of custody order

(1)

Where the court makes an order under section 101 placing a child or young person in the custody of any person,—

(a)

that person has the role of providing day-to-day care for the child or young person as if a parenting order had been made under section 48(1) of the Care of Children Act 2004 giving that person the role of providing day-to-day care for the child or young person; and

(b)

except to the extent that they are preserved by the court in any order made under section 121, all the rights, powers, and duties of every other person having custody of the child or young person shall be suspended and shall have no effect; and

(c)

for the purposes of section 92 of the Care of Children Act 2004,—

(i)

the order constitutes an order about the role of providing day-to-day care for the child or young person; and

(ii)

the person in whose custody the child or young person is placed is a person who, under the order, has the role of providing day-to-day care for the child or young person.

(2)

Any custody order shall be sufficient authority for any constable or any social worker or any other person authorised in that behalf by the chief executive to place the child or young person to whom the order relates—

(a)

where the order places the child or young person in the custody of the chief executive, with such person, or in such residence, as the principal manager of the department for the area in which the court is situated may direct:

(b)

where the order places the child or young person in the custody of an iwi social service or a cultural social service, with such person as the convener of the social service directs:

(c)

where the order places the child or young person in the custody of the director of a child and family support service, with such person or in such residence as that director directs:

(d)

where the order places the child or young person in the custody of any other person, with that person.

(3)

Any person authorised by subsection (2) to place any child or young person with any person or in any residence—

(a)

may use such force as is reasonably necessary for that purpose:

(b)

may exercise that authority from time to time in order to return the child or young person to that person or residence:

(c)

may, for the purpose of exercising that authority, exercise the powers conferred by section 105(2), and the provisions of subsections (2) and (3) of section 105 shall apply accordingly with all necessary modifications.

Section 104(1)(a): replaced, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 104(1)(c): replaced, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 104(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 104(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 104(2)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 104(2)(b): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

105 Living arrangements for child or young person placed in custody of chief executive

(1)

Where the court makes an order under section 101 placing a child or young person in the custody of the chief executive,—

(a)

the chief executive may transfer the child or young person from one residence under this Act to any other residence under this Act:

(b)

any social worker, acting with the specific or general authority of the chief executive, may arrange for the child or young person—

(i)

to be placed in any residence:

(ii)

to be placed in any school or other institution that provides care or training or physical or mental health care:

(iii)

to undertake employment or any training for employment:

(c)

any social worker, acting with the specific or general authority of the chief executive, may arrange for the child or young person to live temporarily with the parents or guardians or other person previously having the care of the child or young person or with any other person, on such terms and conditions as the social worker may specify:

(d)

any social worker, acting with the specific or general authority of the chief executive, may at any time cancel any arrangement made under paragraph (b) or paragraph (c) and, after any such cancellation, may remove the child or young person to a residence or to such other place as the social worker may decide, using such force as is reasonably necessary for that purpose.

(2)

For the purpose of removing any child or young person pursuant to subsection (1)(d), a social worker may enter and search any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises, or place, with or without assistance and by force if necessary.

(3)

The social worker exercising any powers under subsection (2) shall, on first entering any dwelling house, building, aircraft, ship, carriage, vehicle, premises, or place, and, if requested, at any subsequent time—

(a)

produce evidence of identity; and

(b)

disclose that those powers are being exercised under subsection (2).

Section 105 heading: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 105(1): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 105(1)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 105(1)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 105(1)(c): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 105(1)(d): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

106 Living arrangements where child or young person placed in custody of iwi social service, etc

(1)

Where the court makes an order under section 101 placing a child or young person in the custody of an iwi social service or a cultural social service or the director of a child and family support service, the convener of the social service or the director of that support service, as the case may require,—

(a)

may from time to time direct that the child or young person be removed from the person with whom or the residence in which that child or young person was placed pursuant to section 104 and placed with some other person or in some other residence; and

(b)

may request any social worker or any constable to assist in carrying out any direction given under paragraph (a), and any social worker or constable so assisting may use such force as is reasonably necessary for that purpose.

(2)

For the purposes of assisting in the carrying out of any direction given under subsection (1)(a), any social worker or constable may exercise the powers conferred by section 105(2), and the provisions of subsections (2) and (3) of section 105 shall apply accordingly with all necessary modifications.

Section 106: replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 106(1)(b): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 106(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

107 Person in whose custody child or young person is placed may determine access rights in absence of court order

Where—

(a)

the court makes an order under section 101 placing a child or young person in the custody of any person; and

(b)

the court has not made an order under section 113B(1)(b) or section 121 granting any person access to the child or young person,—

the person in whose custody the child or young person is placed shall, subject to any order of any court, have the sole authority to decide whether, and on what terms and conditions (if any), any person is to have access to the child or young person.

Section 107(b): amended, on 30 June 2016, by section 20 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

108 When custody order shall cease to have effect

Where the court makes an order under section 101 placing a child or young person in the custody of any person, that order shall cease to have effect when—

(a)

the order expires in accordance with section 102; or

(b)

the terms of the order expire; or

(c)

in the case of a young person, that young person attains the age of 17 years; or

(d)

in the case of a young person, that young person marries or enters into a civil union; or

(e)

the child or young person is adopted by any person other than a parent of the child or young person—

whichever first occurs.

Section 108(d): amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

109 Custody to revert on expiry of order

Where an order made under section 101 placing a child or young person in the custody of any person expires, custody of the child or young person shall revert to the person having custody of the child or young person immediately before the order was made.

Guardianship orders

110 Guardianship orders

(1)

Where the court makes a declaration under section 67 in relation to any child or young person, or on an application referred to in section 110A, it may make an order appointing any of the following persons to be a guardian of the child or young person:

(a)

the chief executive:

(b)

an iwi social service:

(c)

a cultural social service:

(d)

the director of a child and family support service:

(e)

any other person.

(2)

A guardian appointed under subsection (1) must be appointed as—

(a)

the sole guardian of the child or young person; or

(b)

a guardian of the child or young person in addition to any other guardian.

(3)

The director of a child and family support service may not be appointed as the sole guardian of a child or young person.

(4)

If a person who is appointed as a sole or additional guardian of a child or young person under this section is a natural person, the court may also make an order under section 113A appointing the person as a special guardian of the child or young person (including when the order under this section is made at a hearing under section 127).

Section 110: replaced, on 30 June 2016, by section 21 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

110A Application for change of guardianship order

(1)

If a person is, in relation to a child or young person, a permanent caregiver who is not a special guardian, the person may, with the leave of the court, make a combined application for a guardianship order under section 110 and a special guardianship order under section 113A.

(2)

Leave of the court may be given only if the court is satisfied that—

(a)

the application is made with the intention of replacing a guardianship order made under section 27 of the Care of Children Act 2004 and all associated parenting orders under section 48 of that Act with the guardianship orders referred to in subsection (1); and

(b)

the person has exercised all mechanisms available under the Care of Children Act 2004 to resolve disputes with any parent or other guardian of the child or young person that relate to the circumstances referred to in subsection (4)(a).

(3)

An application under this section must be treated as if it were an application under section 125 for the variation or discharge of an order made under Part 2, and, for that purpose, must be served and heard in accordance with Part 3 (with any necessary modifications).

(4)

On an application under this section, the court may make the orders applied for only if—

(a)

the court is satisfied that—

(i)

the person has been unable to effectively exercise his or her guardianship responsibilities or responsibilities to provide day-to-day care to the child or young person under the orders made under the Care of Children Act 2004; and

(ii)

that inability is due to the conduct of the parents or other guardians of the child or young person, and that conduct forms a pattern of behaviour; and

(iii)

the child’s or young person’s welfare is being threatened or seriously disturbed as a result; and

(b)

following an application under section 29A of the Care of Children Act 2004, the court will at the same time revoke both the person’s appointment as a guardian under that Act and any associated parenting orders under section 48 of that Act.

Section 110A: inserted, on 30 June 2016, by section 21 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

111 Person not to be appointed as guardian without consent

The court shall not make an order under section 110 appointing any person (other than the chief executive) as a guardian unless—

(a)

it gives notice of its intention to consider making the order to that person; and

(b)

that person is given an opportunity to appear and be heard by the court before the court makes such an order; and

(c)

that person consents to the making of the order.

Section 111: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

112 Chief executive may be appointed as guardian for specific purpose

Any order under section 110 appointing the chief executive as a guardian may specify that the appointment is for a particular purpose only.

Section 112 heading: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 112: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

113 Court may impose conditions to facilitate return of child or young person

Where the court makes an order under section 110 appointing the chief executive or an iwi social service or a cultural social service to be the sole guardian of a child or young person, it may impose such conditions as it thinks fit for the purpose of facilitating the return of the child or young person to the parents or guardians or other persons previously having the care of the child or young person.

Section 113: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 113: amended, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

113A Special guardianship orders

(1)

The court may make an order under this section appointing a person referred to in section 110(4) as a special guardian of a child or young person only if—

(a)

the appointment is made for the purpose of providing the child or young person with a long-term, safe, nurturing, stable, and secure environment that enhances his or her interests; and

(b)

either—

(i)

the child or young person has no other guardian; or

(ii)

the special guardian either replaces, or is additional to, an existing guardian of the child or young person.

(2)

For the purposes of this section and section 113B, existing guardian means any person (other than a special guardian) who is a guardian of the child or young person, or who would be a guardian of the child or young person if the court had not made a guardianship order under section 110.

Section 113A: inserted, on 30 June 2016, by section 22 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

113B Effect of special guardianship order

(1)

Where a special guardianship order is made in respect of a child or young person, then, whether the special guardian is a sole or additional guardian and despite anything in this section,—

(a)

the special guardian has custody of the child or young person, and—

(i)

no order under section 101 may be made in respect of the child or young person; but

(ii)

section 114(2)(b) and (c) applies as if the special guardian were a sole guardian; and

(b)

the order must specify the access and other rights (not being custody or guardianship rights), including any terms and conditions that apply to those rights, of each existing guardian in relation to the child or young person.

(2)

Where a special guardianship order specifies the access and other rights of any existing guardian,—

(a)

no existing guardian may apply for an order under section 121(2)(c) or (d) concerning his or her access or other rights in relation to the child or young person, but any other parent or person may apply for orders under that section in relation to the child or young person, as if the special guardian were a sole guardian; and

(b)

section 122 applies to any access rights specified in the order as if those access rights had been granted by an order made under section 121.

(3)

If a person who is appointed as the sole guardian of a child or young person is also appointed as a special guardian, the provisions of this Act relating to sole guardians apply, except that—

(a)

sections 134 and 135 (about reviewing plans) do not apply to the court plan that was prepared for the purposes of section 128; and

(b)

despite section 117(1)(a), the order ceases to have effect when the child or young person attains the age of 18 years or sooner marries or enters into a civil union.

(4)

If a person who is appointed as an additional guardian of a child or young person is also appointed as a special guardian,—

(a)

the order must set out which guardianship rights (which may include those set out in section 16(2) of the Care of Children Act 2004) are to be held exclusively by the special guardian and which are to be shared between the existing guardian and the special guardian; and

(b)

the order must require that the existing guardian is informed of any decisions made by the special guardian in the exercise of any guardianship rights held exclusively by the special guardian; and

(c)

the provisions of this Act relating to additional guardians apply, except as follows:

(i)

no existing guardian may apply under section 115 in respect of any guardianship rights held exclusively by the special guardian; and

(ii)

sections 134 and 135 (about reviewing plans) do not apply to the court plan that was prepared for the purposes of section 128; and

(iii)

despite section 117(1)(a), the order ceases to have effect when the child or young person attains the age of 18 years or sooner marries or enters into a civil union.

(5)

Every special guardianship order must require that, if the child or young person to whom the order applies begins to live with anyone other than the special guardian on more than a temporary basis, the special guardian must,—

(a)

if the child or young person, immediately before the guardianship order was made, was in the custody of the chief executive or a natural person, advise a social worker; or

(b)

if the child or young person, immediately before the guardianship order was made, was in the custody of an iwi social service, cultural social service, or the director of a child and family support service, advise that service or director, as appropriate.

(6)

The obligation on the chief executive imposed by section 7(2)(e) does not apply in respect of a child or young person in respect of whom a special guardianship order is made.

(7)

If a child or young person has more than 1 existing guardian, or more than 1 special guardian, this section and any other applicable sections must be applied with all necessary modifications to each existing guardian and each special guardian.

Section 113B: inserted, on 30 June 2016, by section 22 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

114 Effect of guardianship order

(1)

Where the court makes an order under section 110 appointing any person as a guardian of any child or young person (whether as sole guardian or as a guardian in addition to any other person),—

(a)

that person shall be a guardian of that child or young person as if that person had been appointed under section 27 of the Care of Children Act 2004; and

(b)

if the child or young person is, at the time of the making of the order, under the guardianship of the court under an order made under the Care of Children Act 2004, that guardianship is suspended during the time when the person appointed under section 110 is the guardian (subject to section 117(2)).

(2)

Where the court makes an order under section 110 appointing any person as the sole guardian of any child or young person,—

(a)

except to the extent that they are preserved by any other order made under this Act, all of the rights, powers and duties of every other person who is the guardian of that child or young person, or who may become a guardian during the time when the person appointed under that section is the guardian, shall be suspended and shall have no effect; and

(b)

for the purposes of section 92 of the Care of Children Act 2004,—

(i)

the order constitutes an order about the role of providing day-to-day care for the child or young person; and

(ii)

the person in whose custody the child or young person is placed is a person who, under the order, has the role of providing day-to-day care for the child or young person; and

(c)

subject to any custody order made by the court under section 101, the child or young person shall be deemed to have been placed in the custody of that person pursuant to that section, and the provisions of sections 104 to 107, so far as applicable and with all necessary modifications, shall apply accordingly.

Compare: 1974 No 72 s 49(1); 1983 No 129 s 13

Section 114(1)(a): amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 114(1)(b): replaced, on 3 June 1998, by section 8 of the Guardianship Amendment Act 1998 (1998 No 48).

Section 114(1)(b): amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 114(2)(b): replaced, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

115 Disputes between guardians

Where—

(a)

pursuant to section 110, any person is appointed as guardian of a child or young person in addition to any other guardian; and

(b)

those guardians are unable to agree on any matter concerning the exercise of their guardianship,—

any of those guardians may apply to the court for its direction, and the court may make such order relating to the matter as it thinks fit.

Compare: 1968 No 63 s 13

116 Review of guardian’s decision or refusal to give consent

(1)

For the purposes of this section young person means a boy or girl of or over the age of 14 years but under 20 years.

(2)

Where—

(a)

a young person is affected by a decision or by a refusal of consent by a guardian appointed under section 110; and

(b)

that decision or refusal of consent is in respect of an important matter,—

that young person may apply to the court for a review of that decision or refusal.

(3)

Where an application is made under this section in respect of a decision or refusal, the court may, if it thinks it reasonable in the circumstances to do so, review the decision or refusal and make such order in respect of that decision or refusal as it thinks fit.

(4)

Any consent given by the court pursuant to this section shall have the same effect as if it had been given by the guardian.

(5)

Nothing in this section limits or affects—

(a)

the provisions of the Marriage Act 1955 with respect to consents for minors to marry:

(b)

the provisions of the Civil Union Act 2004 with respect to consents for people under the age of 18 years to enter civil unions:

(c)

the provisions of the Care of Children Act 2004 with respect to consents for people under the age of 18 years to become parties to de facto relationships.

Compare: 1968 No 63 s 14; 1971 No 149 s 3

Section 116(5): replaced, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

117 When guardianship orders to cease to have effect

(1)

Every guardianship order made under section 110 shall cease to have effect when—

(a)

the young person to whom it relates attains the age of 20 years or sooner marries or enters into a civil union; or

(b)

the child or young person to whom it relates is adopted by any person other than its parents—

whichever occurs first.

(2)

A guardianship order made under section 110 ceases to have effect if, after it is made, a court having jurisdiction under section 31 of the Care of Children Act 2004

(a)

orders that the child or young person to whom the order relates be placed under the guardianship of the court under that Act; or

(b)

orders that the child or young person must continue to be under the guardianship of the court, if the child or young person was under the guardianship of the court at the time of the making of the order under section 110.

(3)

Subsection (2) does not apply if the court making an order under that subsection orders that a guardianship order under section 110 continues in force.

Compare: 1974 No 72 s 49(7), (8); 1983 No 129 s 13

Section 117(1)(a): amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

Section 117(2): replaced, on 3 June 1998, by section 8 of the Guardianship Amendment Act 1998 (1998 No 48).

Section 117(2): amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 117(3): replaced, on 3 June 1998, by section 8 of the Guardianship Amendment Act 1998 (1998 No 48).

118 Reversion of guardianship on expiry or discharge of guardianship order

Where an order made under section 110 expires or is discharged, guardianship of the child or young person in respect of whom the order is made shall revert to the person who would have been the guardian of the child or young person if the order had never been made unless some other person has in the meantime become entitled to guardianship by virtue of an order made under the Adoption Act 1955 in which case guardianship shall revert to the person so entitled.

Compare: 1974 No 72 s 49(9); 1983 No 129 s 13

119 Guardianship of child or young person on death of person appointed as guardian under this Act

On the death of any person (being a person referred to in subsection (1)(e) of section 110) appointed the guardian of a child or young person pursuant to an order made under that section, and who at the time of that person’s death was the sole guardian of the child or young person, guardianship of the child or young person shall vest,—

(a)

where an iwi social service or a cultural social service was the sole guardian of the child or young person immediately before that person’s appointment, in that iwi social service or cultural social service as if that social service had been appointed the sole guardian of the child or young person:

(b)

in any other case, in the chief executive as if the chief executive had been appointed the sole guardian of the child or young person.

Section 119(a): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 119(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Effect of custody and guardianship orders on jurisdiction under Care of Children Act 2004

Heading: amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

120 Restriction on making of guardianship and parenting orders under Care of Children Act 2004

(1)

If a child or young person is subject to an order made under section 78 or section 101 or section 110 of this Act, none of the following may be made under the Care of Children Act 2004:

(a)

an order in respect of the guardianship of that child or young person; and

(b)

an order about the role of providing day-to-day care for that child or young person; and

(c)

an order for contact with that child or young person.

(1A)

Subsection (1) is subject to subsection (2) and section 117(2).

(2)

Nothing in subsection (1) affects the power of a court having jurisdiction under section 31 of the Care of Children Act 2004 to make an order under that section in respect of any child or young person who is subject to an order made under section 78 or section 101.

Section 120 heading: amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 120(1): replaced, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 120(1A): inserted, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 120(2): replaced, on 3 June 1998, by section 8 of the Guardianship Amendment Act 1998 (1998 No 48).

Section 120(2): amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Access and exercise of other rights

121 Court may make orders for access and exercise of other rights by parents and other persons

(1)

Where an application is made to the court under section 44 in respect of any child or young person, the court may make an order granting access to that child or young person to the applicant.

(2)

Where the court—

(a)

makes an order under section 78 relating to the custody of a child or young person pending the determination of any proceedings; or

(b)

makes a custody order or an interim custody order under section 101 in relation to a child or young person; or

(c)

makes an order under section 110 appointing the chief executive or any other person the sole guardian of a child or young person,—

it may, on making the order, or at any time after making the order, on application made by any parent of the child or young person or any other person, make an order—

(d)

granting access to that child or young person to that parent or other person:

(e)

conferring on that parent or other person such rights in relation to the child or young person as it thinks fit.

(3)

Any order made under subsection (1) or subsection (2) may be made on such terms and conditions as the court thinks fit.

Section 121(2)(a): amended, on 8 January 1995, by section 15 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 121(2)(c): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

122 Enforcement of access rights

(1)

The court may at any time, on the application of any person entitled to access to a child or young person under an order made under section 121, issue a warrant authorising any social worker or any constable or any other person named in the warrant to take possession of the child or young person and deliver him or her to the person entitled to access in accordance with the order.

(2)

The power conferred on the court by subsection (1) may, if the court thinks fit, be exercised on the making of the order.

(3)

Where, pursuant to this section, the court declines to enforce a right of access under an order made under section 121, it may of its own motion vary or discharge the order accordingly.

Compare: 1968 No 63 s 19(2), (3), (8); 1979 No 52 s 3(1); 1980 No 95 s 9(c)

Section 122(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

123 Power of entry

For the purpose of executing any warrant issued under section 122, any social worker or constable or any other person named in the warrant may enter and search any dwelling house, building, aircraft, ship, carriage, vehicle, premises, or place, with or without assistance and by force if necessary.

Compare: 1968 No 63 s 19(4)

Section 123: amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

124 Person executing warrant to produce evidence of authority and identity
[Repealed]

Section 124: repealed, on 2 September 1996, by section 2(2) of the Children, Young Persons, and Their Families Amendment Act 1996 (1996 No 112).

Variation and discharge of orders

125 Application for variation or discharge of orders made under this Part

(1)

Any 1 or more of the persons specified in section 126 may, subject to that section, apply to the court for the variation or discharge of any of the following orders, or for the variation or cancellation of any condition of any such order:

(a)

an order made under section 78 relating to the custody of a child or young person pending the determination of any proceedings:

(b)

an order made under section 83(1)(c) requiring any person to receive counselling:

(c)

an order made under section 84(1)(b) directing the payment of reparation for any emotional harm or the loss of or damage to property:

(d)

any services order or interim services order made under section 86 or section 86A:

(e)

any restraining order or interim restraining order made under section 87 or section 88:

(f)

any custody order or interim custody order made under section 101:

(g)

any guardianship order made under section 110:

(ga)

any special guardianship order made under section 113A (but only with leave, as required by subsection (1A)):

(h)

any order made under section 121 granting access to, or conferring rights in respect of, any child or young person.

(1A)

Leave of the court must be obtained before an application is made for the variation or discharge of a special guardianship order made under section 113A, unless—

(a)

the application is made by the chief executive, a social worker, an iwi social service, a cultural social service, or the director of a child and family support service; or

(b)

all parties to the proposed application agree to the making of the application.

(1B)

Leave may be given for the purpose of subsection (1A) only if—

(a)

in the case of an application for discharge, there has been a significant change in the circumstances of the child or young person to whom the order relates; and

(b)

in the case of an application for variation, there has been a significant change in the circumstances of the child or young person to whom the order relates, or in the circumstances of his or her parents or any guardian.

(2)

Any 1 or more of the persons specified in section 126 may, subject to that section, apply to the court for the variation, suspension, or discharge of any support order or interim support order made under section 91 or section 92, or for the variation, suspension, or cancellation of any condition of any such order.

Compare: 1974 No 72 s 64

Section 125(1)(a): amended, on 8 January 1995, by section 16(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 125(1)(d): replaced, on 8 January 1995, by section 16(2) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 125(1)(ga): inserted, on 30 June 2016, by section 23(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 125(1A): inserted, on 30 June 2016, by section 23(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 125(1B): inserted, on 30 June 2016, by section 23(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

126 Persons who may apply for variation or discharge of order

The following persons may make an application under section 125 in respect of an order specified in that section:

(a)

the child or young person in respect of whom the order was made:

(b)

any parent or guardian of that child or young person:

(c)

any barrister or solicitor representing the child or young person:

(d)

any near relative of that child or young person:

(e)

any member of that child’s or young person’s whanau or family group:

(f)

any person on whom the application for the declaration under section 67 in respect of which the order was made has been served in accordance with section 152:

(g)

the chief executive:

(h)

the director of any child and family support service:

(i)

any iwi social service or cultural social service:

(j)

in respect of an order made under section 83(1)(c), any person required to receive counselling pursuant to that order:

(k)

in respect of any services order or interim services order made under section 86 or section 86A, any person or organisation required to provide services or assistance pursuant to the order:

(l)

in respect of any restraining order or interim restraining order made under section 87 or section 88, any person named in that order:

(m)

in respect of any support order or interim support order made under section 91 or section 92, any person or organisation directed, pursuant to that order, to provide support to a child or young person:

(n)

in respect of any custody order or interim custody order made under section 101, or any order made under section 78, any person granted custody of the child or young person by that order:

(o)

with the leave of the court, any other person.

Section 126(g): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 126(i): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 126(k): replaced, on 8 January 1995, by section 17 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

126A Court may direct holding of family group conference to consider application

(1)

Where an application is made under section 125, the court, at any stage of the proceedings, may direct a care and protection co-ordinator to convene a family group conference for the purpose of considering such matters relating to the child or young person as the court directs, and may adjourn the hearing of the application until the conference has been held.

(2)

The provisions of sections 20 to 36 shall apply with all necessary modifications with respect to the convening of a family group conference for the purposes of this section.

Section 126A: inserted, on 8 January 1995, by section 18 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

127 Court may vary or discharge order

(1)

On the hearing of any application under section 125(1) for the variation or discharge of any order, or the variation or discharge of any condition of any order, the court may—

(a)

vary the order in such manner as it thinks fit:

(b)

discharge the order:

(c)

discharge the order and substitute any other order referred to in section 83(1) or section 84(1):

(ca)

make any order referred to in section 83(1) or section 84(1) in addition to the order (whether or not the court exercises any other power specified in paragraph (a) or any of paragraphs (d) to (g) in relation to the order):

(d)

vary any condition of the order in such manner as it thinks fit:

(e)

discharge any condition of the order:

(f)

discharge any condition of the order and substitute any condition that could have been imposed when the order was first made:

(g)

impose a further condition of the order.

(2)

On the hearing of any application under section 125(2) for the variation, suspension, or discharge of any support order or interim support order made under section 91 or section 92, or for the variation, suspension, or cancellation of any condition of any such order, the court may—

(a)

vary the order in such manner as it thinks fit:

(b)

suspend the order for such period as may be specified:

(c)

discharge the order:

(d)

discharge the order and substitute any other order referred to in section 83(1) or section 84(1):

(da)

make any order referred to in section 83(1) or section 84(1) in addition to the order (whether or not the court exercises any other power specified in paragraph (a) or paragraph (b) or any of paragraphs (e) to (i) in relation to the order):

(e)

vary any condition of the order in such manner as it thinks fit:

(f)

suspend any condition of the order for such period as may be specified:

(g)

discharge any condition of the order:

(h)

discharge any condition of the order and substitute any condition that could have been imposed when the order was first made:

(i)

impose a further condition of the order.

(3)

Where the court makes any order under this section, the court may, where it considers it necessary or desirable to do so, make such order under section 134 as it thinks fit with respect to any plan or revised plan in force concerning the child or young person.

Compare: 1974 No 72 s 64

Section 127(1)(ca): inserted, on 8 January 1995, by section 19(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 127(2)(da): inserted, on 8 January 1995, by section 19(2) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 127(3): replaced, on 8 January 1995, by section 19(3) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Plans for children and young persons

128 Court to obtain and consider plan for child or young person before making certain orders

(1)

Where the court proposes to make any 1 or more of the orders specified in subsection (2) in respect of any child or young person, the court shall, before making any such order, obtain, in relation to that child or young person, a plan prepared in accordance with sections 129 and 130.

(2)

The orders referred to in subsection (1) are as follows:

(a)

a services order under section 86:

(b)

a support order under section 91 in respect of any child or young person:

(c)

an order (other than an interim order) under section 101 placing any child or young person in the custody of any person:

(d)

an order under section 110 appointing any person as the sole guardian of a child or young person:

(e)

a special guardianship order under section 113A.

(3)

Where, pursuant to subsection (1), the court is required to obtain a plan in relation to a child or young person, that plan shall be prepared notwithstanding that a plan prepared pursuant to this section is already in force in relation to that child or young person, and on the preparation of that plan any plan already in force in relation to the child or young person shall cease to be in force.

(4)

Notwithstanding anything in subsection (1), where—

(a)

the court proposes to make an order in respect of a child or young person; and

(b)

but for this subsection, the court would be required, pursuant to subsection (1), to obtain a plan in respect of the order; and

(c)

the making of the order would be in accordance with a decision, recommendation, or plan made or formulated by a family group conference; and

(d)

that conference has already formulated, in respect of the child or young person, a plan that complies with the requirements of section 130; and

(e)

either—

(i)

that plan was prepared in consultation with the chief executive or a social worker; or

(ii)

the chief executive consents to that plan being treated as a plan obtained by the court pursuant to subsection (1),—

the court may treat that plan as a plan obtained by the court pursuant to subsection (1), and that subsection and the other provisions of this Act that relate to plans obtained pursuant to that subsection shall apply accordingly as if the plan had been prepared by the chief executive.

Section 128(2)(a): amended, on 8 January 1995, by section 20(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 128(2)(e): inserted, on 30 June 2016, by section 24 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 128(4): inserted, on 8 January 1995, by section 20(2) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 128(4): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 128(4)(e)(i): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 128(4)(e)(ii): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

129 Court to direct who is to prepare plan

(1)

Where, pursuant to section 128, the court is required to obtain a plan in respect of any order, the plan shall be prepared by such person as the court directs.

(1A)

Where—

(a)

a person is directed, pursuant to subsection (1), to prepare a plan; and

(b)

that person is not a social worker; and

(c)

that plan has any implications for the chief executive,—

the plan shall be of no effect unless it has been prepared in consultation with the chief executive or his or her representative, and contains an express statement to the effect.

(1B)

For the purposes of subsection (1A), a plan has implications for the chief executive if it proposes that—

(a)

the chief executive be required to provide services or assistance pursuant to a services order under section 86; or

(b)

the chief executive be required to provide support pursuant to a support order under section 91; or

(c)

a child or young person be placed in the custody or care of the chief executive; or

(d)

the chief executive be appointed as the sole guardian, or as an additional guardian, of a child or young person; or

(e)

a child or young person receive counselling or other services under this Act, where that counselling or those services would be provided at the department’s expense; or

(f)

either—

(i)

a child or young person be placed in the custody or care of any person or organisation; or

(ii)

any person or organisation be appointed as the sole guardian, or as an additional guardian, of a child or young person,—

and that the chief executive provide financial assistance to that person or organisation; or

(g)

any order (whether a services order under section 86 or a support order under section 91, or any other order) be made in relation to any person or organisation, and that the chief executive provide financial assistance to that person or organisation for the purpose of assisting that person or organisation to give effect to the order.

(2)

Where the court considers that any plan prepared pursuant to section 128 is inadequate, it may direct the person who prepared the plan to furnish to the court a revised plan, and may indicate any specific matter that it requires to be dealt with in that plan.

Section 129(1A): inserted, on 8 January 1995, by section 21 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 129(1A): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 129(1A)(c): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 129(1B): inserted, on 8 January 1995, by section 21 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 129(1B): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 129(1B)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 129(1B)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 129(1B)(c): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 129(1B)(d): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 129(1B)(f): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 129(1B)(g): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

130 Content of plans

(1)

Every plan prepared pursuant to section 128 in respect of a child or young person shall—

(a)

specify the objectives sought to be achieved for that child or young person, and the period within which those objectives should be achieved:

(b)

contain details of the services and assistance to be provided for that child or young person and for any parent or guardian or other person having the care of the child or young person:

(c)

specify the persons or organisations who will provide such services and assistance:

(d)

state the responsibilities and personal objectives of the child or young person:

(e)

state the responsibilities and personal objectives of any parent, guardian, or other person who, under the plan, will have the care of the child or young person:

(ea)

set out the following:

(i)

the responsibilities and personal objectives of any parent, guardian, or other person who, under the plan, will not have the care of the child or young person, but who had the care of the child or young person previously and wishes to have the child or young person returned to his or her care:

(ii)

the steps that each such parent, guardian, or other person must take, or the behavioural changes each must make, before the child or young person can be returned to his or her care:

(iii)

the time frames within which those steps or changes must be taken or made:

(iv)

the time within which a decision will be made about whether to return the child or young person to the care of any parent, guardian, or other person:

(f)

contain such other matters relating to the education, employment, recreation, and welfare of the child or young person as are relevant.

(2)

A plan need not contain the matters set out in subsection (1)(ea) if the plan is prepared on the basis that there is no realistic possibility that the child or young person will be returned to the care of a parent, guardian, or other person referred to in subsection (1)(ea)(i), or if the plan relates only to a services order under section 86 or a support order under section 91.

(3)

If a plan does not contain the matters set out in subsection (1)(ea), it must, instead, set out the child’s or young person’s long-term needs and proposals for how those needs will be met (unless the plan relates only to a services order or a support order).

Section 130(1)(d): replaced, on 30 June 2016, by section 25(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 130(1)(e): replaced, on 30 June 2016, by section 25(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 130(1)(ea): inserted, on 30 June 2016, by section 25(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 130(2): inserted, on 30 June 2016, by section 25(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 130(3): inserted, on 30 June 2016, by section 25(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

131 Adjournment for purposes of obtaining plan

(1)

Any adjournment for the purposes of obtaining a plan pursuant to section 128 shall not exceed 28 days unless the court in any special case otherwise determines, but may otherwise be on such conditions as the court thinks fit.

(2)

Where any proceedings are adjourned for the purposes of obtaining any plan pursuant to section 128, the person responsible for preparing that plan shall make all reasonable endeavours to ensure that the plan is filed with the court at least 2 working days before the date set for the hearing of those proceedings to resume.

132 Access to plans

(1)

Subject to section 133, a copy of every plan furnished to the court pursuant to section 128 shall be given by the Registrar of the court—

(a)

to every person entitled to appear and be heard on the application to which the plan relates and to any barrister or solicitor appearing for that person:

(b)

to any lay advocate, barrister or solicitor, or other person representing the child or young person to whom the application relates or a parent or guardian or other person usually having the care of the child or young person:

(c)

to the chief executive:

(d)

to any other person whom the court considers has a proper interest in receiving a copy of the plan.

(2)

Every such copy shall, wherever possible, be supplied not later than 1 working day before the sitting of the court.

Section 132(1)(c): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

133 Court may order plan not to be disclosed

The court may order that the whole or any part of a plan given to any person pursuant to section 132(1) shall not be disclosed to any person specified in the order where it is satisfied that such disclosure would be, or would be likely to be, detrimental to the physical or mental health, or the emotional well-being, of any child or young person or other person to whom the plan relates.

134 Court to set date for review of plan

(1)

Where a plan is prepared pursuant to section 128 in respect of any child or young person, the court shall, on making any of the orders referred to in subsection (2) of that section in respect of that child or young person, fix a date by which a review of that plan is to be carried out.

(2)

The date fixed pursuant to subsection (1) on the making of an order shall be,—

(a)

where the order is made in respect of a child under the age of 7 years, not later than 6 months from the date of the making of the order:

(b)

in any other case, not later than 12 months from the date of the making of the order.

(3)

The court shall not fix a date pursuant to subsection (1) that is later than the date on which any order made, or proposed to be made, pursuant to this Part in respect of the child or young person is to expire.

(4)

On fixing a date pursuant to subsection (1), the court may also direct who is to review the plan pursuant to section 135. If the court does not make such a direction, the person who prepared the plan shall be deemed to have been directed pursuant to this subsection to review the plan.

(5)

The court may at any time, on the application of any party to the proceedings, or a barrister or solicitor representing the child or young person, or of its own motion, amend any direction made or deemed to have been made under subsection (4), or revoke any such direction and substitute another direction.

Section 134(2)(a): amended, on 1 November 1989, by section 6(1)(c) of the Children, Young Persons, and Their Families Amendment Act 1989 (1989 No 70).

Section 134(4): inserted, on 8 January 1995, by section 22(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 134(5): inserted, on 8 January 1995, by section 22(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

135 Review of plan

(1)

Subject to section 127(3), the person who is directed, pursuant to section 134, to review a plan prepared under section 128 in respect of a child or young person shall, not later than the date fixed pursuant to section 134 for the review of that plan, review that plan and furnish to the court a report setting out the results of that review, together with a revised plan in respect of that child or young person.

(2)

Section 130 shall apply to a revised plan as if it were a plan required to be prepared pursuant to section 128.

(3)

Every report furnished to the court pursuant to subsection (1) in respect of the review of a plan shall—

(a)

state which of the objectives set out in the plan have been achieved and which of those objectives are yet to be achieved:

(b)

state, in respect of those objectives that are yet to be achieved, what action is required to achieve those objectives:

(c)

state, in respect of any order made by the court under this Part in relation to the child or young person to whom the plan relates, whether that order should continue in force, or be varied, suspended, or discharged, and whether any condition of that order should be continued in force, or be varied, suspended, or discharged, and the reasons for those recommendations:

(d)

state whether the court should make any other order under this Part in relation to that child or young person, and the reasons for that recommendation:

(e)

state, in respect of those persons who were required to be given a copy of the plan pursuant to section 132, whether each of those persons agrees with the recommendations contained in the report.

(4)

On the request of a person who is required to review a plan, for the purpose of reviewing the plan a care and protection co-ordinator—

(a)

must convene a family group conference, unless the plan relates only to a services order under section 86; and

(b)

may convene a family group conference if the plan relates only to a services order.

(5)

The provisions of sections 20 to 36 shall apply with all necessary modifications with respect to the convening of a family group conference for the purposes of subsection (4).

Section 135(1): replaced, on 8 January 1995, by section 23(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 135(4): replaced, on 30 June 2016, by section 26 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 135(5): inserted, on 8 January 1995, by section 23(2) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

136 Access to reports and revised plans

The provisions of sections 132 and 133 shall apply, with such modifications as may be necessary, with respect to every report, and every revised plan, furnished to the court pursuant to section 135.

137 Court to consider report and make directions

(1)

Where a report is furnished to the court pursuant to section 135 in respect of the review of any plan prepared in relation to any child or young person, the court shall consider the report and the accompanying revised plan, and may do any 1 or more of the following things:

(a)

in relation to any order that is in force under this Part and that relates to that child or young person,—

(i)

make any order under section 127 as if an application had been made under section 125 in relation to that order; or

(ii)

direct any person to make an application under section 125 in relation to that order:

(b)

make, in respect of that child or young person, any order referred to in section 83(1) or section 84(1):

(c)

direct a care and protection co-ordinator to convene a family group conference for the purpose of considering such matters relating to that child or young person as the court may specify:

(d)

require any person to appear before the court for the purpose of being examined as to any matter relating to, or arising out of,—

(i)

the plan prepared pursuant to section 128:

(ii)

the report furnished under section 135 on the review of that plan:

(iii)

the revised plan accompanying that report:

(e)

where the court considers that the report furnished under section 135, or the revised plan, or both, are inadequate, direct the person who prepared the report to furnish to the court a further report, or a further revised plan, or both, and may indicate any specific matter that it requires to be dealt with in that report or plan:

(f)

make any order that it is empowered to make under section 178 or section 181 or section 186 or section 187 in relation to the hearing of an application for a declaration under section 67, and the provisions of those sections, of sections 179, 180, 182, 183, 184, and 185, and of sections 188 to 194 shall apply with such modifications as may be necessary with respect to every report required to be furnished to the court under this paragraph.

(1A)

When considering the report and revised plan, the court may, but need not, give to any person the opportunity to be heard.

(2)

The provisions of section 199 shall apply with respect to any person required to appear before the court pursuant to subsection (1)(d) as if that person had been called by the court as a witness.

(3)

The court shall not make any order under paragraph (a)(i) or paragraph (b) of subsection (1) unless—

(a)

the report furnished to the court under section 135 recommends that the order be made, and the court is satisfied that every person to whom a copy of that report is required to be given agrees with that recommendation; or

(b)

a family group conference recommends that the order be made.

(4)

Nothing in section 128 shall apply in respect of any order that the court proposes to make pursuant to subsection (1)(b).

(5)

Where a report is furnished to the court pursuant to section 135 in respect of the review of any plan prepared in relation to any child or young person, any order that is in force under this Part and that relates to that child or young person shall, unless the court otherwise directs, and subject to section 108(c) to (e) and section 117 and to any order made pursuant to this section, continue in force until the court has completed its consideration of the report in accordance with this section and has determined what (if any) decision it should make with respect to that order.

Section 137(1): amended, on 31 March 2014, by section 4(1) of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

Section 137(1A): inserted, on 31 March 2014, by section 4(2) of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

138 Court to set date for further review of plan

(1)

After considering a report furnished pursuant to section 135 in respect of the review of a plan, and after taking such action (if any) under section 137 as it thinks fit, the court shall, if any order referred to in section 128(2) is to continue in force in respect of the child or young person to whom the plan relates, fix a date by which a review of the revised plan that accompanied that report is to be carried out.

(2)

Section 134 shall apply, with all necessary modifications, with respect to—

(a)

the fixing of a date for the review of a revised plan; and

(b)

the person who is to review a revised plan.

(3)

Where, pursuant to subsection (1), the court fixes a date for the review of a revised plan, this section and sections 135 to 137 shall apply, with all necessary modifications, with respect to every such revised plan as if it were a plan prepared pursuant to section 128.

Section 138(2): replaced, on 8 January 1995, by section 24 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Agreements for care of children and young persons

139 Agreements for temporary care of children and young persons by chief executive, iwi social services, etc

(1)

Subject to this section, any parent or guardian or other person having the care of a child or young person who is temporarily unable or unwilling to care for the child or young person may,—

(a)

with the agreement of the chief executive, place the child or young person in the care of the chief executive for a period not exceeding 28 days; or

(b)

with the agreement of an iwi social service or a cultural social service, place the child or young person in the care of that social service for a period not exceeding 28 days; or

(c)

with the agreement of the director of a child and family support service, place the child or young person in the care of the director for a period not exceeding 28 days.

(2)

If the parent or guardian or other person having the care of the child or young person is, or will be, unable to resume the care of the child or young person at the end of the period during which the child or young person is in the care of any person pursuant to subsection (1), the period may, with the agreement of that person, be extended for one further period of up to 28 days.

Section 139: replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 139 heading: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 139(1)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

140 Agreements for extended care of children and young persons by chief executive, iwi social service, etc

(1)

Subject to this section and to sections 143 to 145 and section 147, where every person who is a parent or guardian or person having the care of a child or young person agrees to do so, those persons may,—

(a)

with the agreement of the chief executive, place the child or young person in the care of the chief executive for a period of more than 28 days; or

(b)

with the agreement of an iwi social service or a cultural social service, place the child or young person in the care of that social service for a period of more than 28 days; or

(c)

with the agreement of the director of a child and family support service, place the child or young person in the care of the director for a period of more than 28 days; or

(d)

with the agreement of any person referred to in paragraphs (a) to (c) or any other person approved by the chief executive for the purpose of this paragraph, place a young person aged 15 years or more in the care of that person for the purpose of assisting the young person to achieve independence.

(2)

No agreement may be made under subsection (1)(a) to (c) providing for the placement of any child or young person in the care of any person for any period that exceeds,—

(a)

in the case of a child who is under 7 years of age, 6 months:

(b)

in the case of any other child or any young person, 12 months.

(3)

An agreement made under subsection (1)(d) may be entered into for any period of up to 12 months and may, if approved by a family group conference convened for the purpose, be extended by any further periods of up to 12 months.

Section 140: replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 140 heading: amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 140(1)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 140(1)(c): amended, on 30 June 2016, by section 27(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 140(1)(d): inserted, on 30 June 2016, by section 27(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 140(2): amended, on 30 June 2016, by section 27(3) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 140(3): inserted, on 30 June 2016, by section 27(4) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

141 Agreements for extended care of severely disabled children and young persons

(1)

This section applies to any child or young person who is so mentally or physically disabled that suitable care for that child or young person can be provided only if that child or young person is placed in the care of an organisation or body approved under section 396 to provide care for such a child or young person.

(2)

Subject to this section and to sections 143 to 145 and section 147, where every person who is a parent or guardian or person having the care of a child or young person to whom this section applies agrees to do so, those persons may,—

(a)

with the agreement of an iwi social service or a cultural social service, place the child or young person in the care of that social service; or

(b)

with the agreement of a director of a child and family support service, place the child or young person in the care of the director.

(3)

No agreement may be made under subsection (2) providing for the placement of any child or young person in the care of any person for any period that exceeds 1 year, but any such agreement may from time to time be extended for such period (not exceeding 1 year in each instance) as a family group conference may approve.

(3A)

On and after the date on which section 28 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 comes into force, the time periods referred to in subsection (3) apply only to an agreement, or an extension to an agreement, that is entered into or agreed to on or after that date.

(4)

No agreement may be made under subsection (2) providing for the placement of any child or young person in the care of any person (in this subsection referred to as the proposed caregiver) unless a person or organisation authorised pursuant to subsection (5) (not being a person employed by the proposed caregiver) certifies,—

(a)

that the proposed caregiver has appropriate facilities and adequate staffing to care for the child or young person; or

(b)

where, pursuant to section 362, the proposed caregiver intends to place the child or young person in the charge of some other person or organisation, that the proposed caregiver has appropriate facilities and adequate staffing to supervise the placement and to ensure that adequate and appropriate care is provided to the child or young person.

(5)

The Director-General of Health may from time to time, on application made to the Director-General, authorise any suitable person or organisation to issue certificates for the purposes of subsection (4).

(6)

The Director-General of Health may grant an authority under subsection (5) subject to such conditions as the Director-General of Health thinks fit, and may at any time revoke any such authority, or revoke, vary, or add to any condition imposed under this subsection.

(7)

The Director-General of Health may from time to time, under section 41 of the State Sector Act 1988, delegate to any district health board (within the meaning of the New Zealand Public Health and Disability Act 2000) the powers conferred on the Director-General of Health by subsections (5) and (6) and, for that purpose and for that purpose only, sections 41 and 42 of the State Sector Act 1988 apply as if every district health board were an employee of the Ministry of Health.

Section 141(1): amended, on 8 January 1995, by section 25(1) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 141(2)(a): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 141(3): amended, on 1 July 2014, by section 28(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 141(3A): inserted, on 1 July 2014, by section 28(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 141(4): replaced, on 8 January 1995, by section 25(2) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 141(5): inserted, on 8 January 1995, by section 25(2) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 141(6): inserted, on 8 January 1995, by section 25(2) of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 141(7): replaced, on 1 January 2001, by section 111(1) of the New Zealand Public Health and Disability Act 2000 (2000 No 91).

142 Agreements with persons providing residential disability care

(1)

This section applies to any child or young person who is a disabled person within the meaning of the Disabled Persons Community Welfare Act 1975.

(2)

Subject to this section, sections 143 to 145, and section 147, where every person who is a parent or guardian or person having the care of a child or young person to whom this section applies agrees to do so, those persons may, with the agreement of an operator, place the child or young person in the operator’s care.

(3)

No agreement may be made under subsection (2) providing for the placement of any child or young person in the care of any operator for any period that exceeds 1 year; but any such agreement may from time to time be extended for any period (not exceeding 1 year in each instance) a family group conference approves.

(4)

Where, pursuant to an agreement made under subsection (2), a child or young person is placed in the care of an operator, that operator may place the child or young person in the charge of any person whom the operator considers suitable to provide for the care, control, and upbringing of the child or young person.

(5)

Section 363 applies, with all necessary modifications, in respect of any placement made under subsection (4) as if it were a placement made under section 362.

(6)

In this section, operator means a residential disability care operator within the meaning of section 58(4) of the Health and Disability Services (Safety) Act 2001.

Section 142: replaced, on 1 October 2002, by section 58(1) of the Health and Disability Services (Safety) Act 2001 (2001 No 93).

143 All parents or guardians not required to be party to agreement

Where a parent or guardian or person having the care of a child or young person—

(a)

consents in writing to the making of the agreement; or

(b)

cannot after reasonable enquiries be found; or

(c)

is incapable of entering into the agreement,—

an agreement may be made under section 140 or section 141 or section 142 with respect to the child or young person without that parent or guardian or person being a party to the agreement.

144 Agreement not to be made without consent of child or young person

(1)

Subject to subsection (2), no agreement shall be made under section 140 or section 142 with respect to—

(a)

a child of or over the age of 12 years; or

(b)

a young person—

unless that child or young person consents in writing to the making of the agreement.

(2)

The consent of a child or young person to whom section 142 applies is not required under subsection (1) of this section if the child or young person is unable, by reason of that child’s or young person’s disability, to understand the nature of the agreement.

(3)

Before an agreement is entered into under section 140 or section 141 or section 142, the wishes of the child or young person shall, where practicable, be ascertained and given due consideration in concluding the terms of the agreement.

Compare: 1974 No 72 s 11(2)

145 Agreement not to be made without approval of family group conference

(1)

No agreement may be made under section 140 or section 141 or section 142 unless, before the agreement is made,—

(a)

a family group conference is held to consider whether such an agreement should be made; and

(b)

in the case of a proposed agreement under section 141 or 142, the family group conference has thoroughly explored what services and supports, such as those provided or funded by the Ministry of Health, are available to, or in respect of, the child or young person in his or her home environment; and

(c)

the family group conference approves the making of the agreement; and

(d)

a care and protection co-ordinator issues a certificate to the effect,—

(i)

in all cases, that the requirements of paragraphs (a) and (c) have been complied with; and

(ii)

in the case of a proposed agreement under section 141 or 142, that the family group conference has thoroughly explored the matters referred to in paragraph (b); and

(iii)

in all cases, that the co-ordinator is satisfied that, having regard to the objects, considerations, and principles in sections 4, 5, 6, and 13, the agreement is an appropriate care option for the child or young person.

(2)

A care and protection co-ordinator must convene or reconvene a family group conference for the purpose of considering—

(a)

whether an agreement should be entered into under section 140 or section 141 or section 142 in relation to any child or young person:

(b)

whether an agreement entered into under section 141 or section 142 should be extended or terminated:

(c)

whether an agreement entered into under section 140(1)(d) for the purpose of assisting a young person to achieve independence should be extended or terminated.

(3)

The provisions of sections 20 to 36 shall apply with all necessary modifications with respect to the convening or reconvening of a family group conference for the purposes of this section.

Section 145(1)(b): replaced, on 1 July 2014, by section 29(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 145(1)(c): replaced, on 1 July 2014, by section 29(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 145(1)(d): inserted, on 1 July 2014, by section 29(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 145(2): amended, on 1 July 2014, by section 29(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 145(2)(c): inserted, on 30 June 2016, by section 29(3) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

146 Form and terms of agreements

(1)

Every agreement entered into under section 140 or section 141 or section 142 shall—

(a)

be in writing:

(b)

specify the term of the agreement:

(c)

specify the manner in which it may be terminated and, unless so specified, shall provide that the agreement may be terminated by either party on giving 7 days notice in writing:

(d)

contain provisions relating to the care and control of the child or young person during the term of the agreement, including, but not limited to, provisions relating to—

(i)

the educational, social, cultural, and religious needs of the child or young person:

(ii)

a programme for the provision of services and assistance for the benefit of the child or young person:

(iii)

the rights and obligations of the parents or guardians towards the child or young person:

(iv)

access to the child or young person by the parents or guardians or any other person.

(2)

Notwithstanding anything in subsection (1)(c), an agreement entered into under section 140 or section 141 or section 142 shall be terminated if a family group conference decides that the agreement should be terminated.

147 Further restrictions on making of agreements

(1)

No agreement relating to a child or young person shall be entered into under section 140(1)(a) to (c) by any person (being the chief executive or an iwi social service or a cultural social service or a director of a child and family support service) in any case where that person is not satisfied that a parent or guardian of the child or young person, or a person usually having the care of the child or young person, will resume the care of the child or young person on the termination of the agreement.

(2)

No agreement relating to a child or young person shall be entered into under section 140(1)(a) to (c) or section 141 or section 142 by any person (being the chief executive or an iwi social service or a cultural social service or a director of a child and family support service or a residential disability care operator within the meaning of section 58(4) of the Health and Disability (Safety) Act 2001) in any case where no parent or guardian, or a person usually having the care of the child or young person, or a member of the child’s or young person’s family, whanau, or family group, is willing to maintain contact with the child or young person during the term of the agreement.

Section 147(1): amended, on 30 June 2016, by section 30(1) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 147(1): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 147(1): amended, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 147(2): amended, on 30 June 2016, by section 30(2) of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 147(2): amended, on 1 October 2002, by section 58(1) of the Health and Disability Services (Safety) Act 2001 (2001 No 93).

Section 147(2): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 147(2): amended, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

148 Effect of agreements

Where a child or young person is placed in the care of any person pursuant to an agreement under section 139 or section 140 or section 141 or section 142, that person shall have, in respect of that child or young person, the same powers and responsibilities in all respects as if that child or young person had been placed in the custody of that person pursuant to an order under section 101.

Compare: 1974 No 72 s 11(3)

149 Agreement may provide for consent to medical treatment

Any agreement entered into under section 139 or section 140 or section 141 or section 142 may authorise the person in whose care a child or young person is placed pursuant to that agreement to consent to the carrying out, on that child or young person, of any medical, surgical, or dental procedure (including a blood transfusion), and where any person is so authorised that person shall be deemed to be a guardian of the child or young person for the purposes of section 36(3) of the Care of Children Act 2004.

Section 149: amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Part 3 Provisions relating to procedure in respect of proceedings under Parts 2 and 3A

Part 3 heading: replaced, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Courts having jurisdiction under Parts 2 and 3A

Heading: replaced, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

150 Jurisdiction of Family Courts

Subject to sections 151 and 341, all proceedings under Part 2 or Part 3A shall be heard and determined in a Family Court.

Compare: 1974 No 72 s 25(1)

Section 150: amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

151 Jurisdiction of District Courts in cases of urgency

The following proceedings may be heard and determined in a District Court in any case where it is expedient that the proceedings be dealt with urgently and it is impracticable for the matter to be heard and determined as a matter of urgency in a Family Court:

(a)

an application under section 44:

(b)

any proceedings under section 45:

(c)

an application under section 78:

(d)

an application under section 88 for an interim restraining order.

Service of applications

152 Service of application for declaration

(1)

Subject to section 155, every application for a declaration under section 67 that a child or young person is in need of care or protection shall be served, in accordance with rules of court, on the following persons:

(a)

each parent or guardian of the child or young person:

(b)

if the child or young person is not residing with any of his or her parents or guardians, any person with whom the child or young person is living and who has had the care of the child or young person for a period of not less than 6 months immediately before the application was made:

(c)

if the child or young person is in the custody or under the guardianship of the chief executive, the principal manager of the department for the area in which the child or young person is residing:

(d)

if the child or young person is in the custody or under the guardianship of an iwi social service or a cultural social service, that social service:

(e)

if the child or young person is in the custody of the director of a child and family support service, that director:

(f)

any other person specified by the court.

(2)

Any person served with proceedings under subsection (1) shall be entitled to appear and be heard as a party to the proceedings.

Compare: 1974 No 72 s 27(4)–(6)

Section 152(1): amended, on 13 September 2002, by section 6 of the Family Courts Amendment Act 2000 (2000 No 65).

Section 152(1)(c): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 152(1)(d): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

153 Notice of application for declaration to be given to child or young person

Where an application is made for a declaration under section 67 in respect of any child of or over the age of 12 years or any young person, the Registrar of the court in which that application is filed shall ensure that a copy of the application is given to that child or young person.

154 Service of application for variation or discharge of order

(1)

Subject to section 155, every application under section 125 shall be served, in accordance with rules of court, on the following persons:

(a)

every person who would have been entitled, under section 126(b), (c), (j), (k), (l), (m), or (n), to make an application under section 125 in respect of the order to which the application relates:

(b)

the applicant for the declaration under section 67 in respect of which the order was made:

(c)

the chief executive:

(d)

any other person specified by the court.

(2)

Any person served with proceedings under subsection (1) shall be entitled to appear and be heard as a party to the proceedings.

Section 154(1): amended, on 13 September 2002, by section 6 of the Family Courts Amendment Act 2000 (2000 No 65).

Section 154(1)(c): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

155 Court may dispense with service

Where any person cannot be served with an application in accordance with section 152 or section 154, the court may, on such terms and conditions as it thinks fit, dispense with service on that person.

Attendance of parties at hearing

156 Court may require party to attend hearing

(1)

Where the court considers that the presence of any person required to be served with an application under section 152 or section 154 or section 207L or section 207R is necessary to enable the court to hear and determine that application, the court may direct the Registrar to issue a summons in a form prescribed by rules of court requiring the person to whom it is addressed to appear before the court at the time stated in the summons.

(2)

In any case where a summons under this section has been served on any person, a Family Court Judge may, if the person to whom the summons is issued does not appear to answer to it, direct the issue of a warrant to arrest that person and bring that person before the court.

(3)

Every person commits an offence and is liable on conviction to a fine not exceeding $1,000 who, being required to appear before the court under this section, refuses or fails without reasonable excuse to appear.

Compare: 1974 No 72 s 27(6), (8)–(11)

Section 156(1): amended, on 13 September 2002, by section 6 of the Family Courts Amendment Act 2000 (2000 No 65).

Section 156(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 156(3): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

157 Court may require child or young person to attend hearing

(1)

Where the court considers that the presence of the child or young person in respect of whom any application is made under Part 2 or Part 3A is necessary to enable the court to hear and determine that application, the court may direct the Registrar to issue a summons in a form prescribed by rules of court requiring the person who has custody of the child or young person to ensure that the child or young person is present at the hearing.

(2)

In any case where a summons under this section has been served on any person, a Family Court Judge may, if the child or young person in respect of whom the summons is issued does not appear at the hearing when required to do so, issue a warrant authorising any social worker or any constable or any other person named in the warrant to take possession of that child or young person and bring him or her before the court.

(3)

Section 123 shall apply, with all necessary modifications, in relation to every warrant issued under subsection (2) as if every such warrant were a warrant issued under section 122.

(4)

Every person commits an offence and is liable on conviction to a fine not exceeding $1,000 who, being required pursuant to a summons issued under this section to ensure that a child or young person appears before the court, fails to take all reasonable steps to ensure that the child or young person so appears.

Compare: 1974 No 72 s 27(6)

Section 157(1): amended, on 13 September 2002, by section 6 of the Family Courts Amendment Act 2000 (2000 No 65).

Section 157(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 157(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 157(3): amended, on 2 September 1996, by section 2(3) of the Children, Young Persons, and Their Families Amendment Act 1996 (1996 No 112).

Section 157(4): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

Joint hearings

158 Applications may be heard together

The court may hear and determine an application for a declaration under section 67 or an application under section 125 (which relates to the variation, suspension, and discharge of orders made under Part 2) or an application under Part 3A in conjunction with any application under the Adoption Act 1955 or the Care of Children Act 2004 or the Family Proceedings Act 1980 or the Domestic Violence Act 1995 in any case where all the applications relate to the same child or young person (whether or not any or all of those applications also relate to any other person).

Compare: 1980 No 94 s 160(2)

Section 158: amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).

Section 158: amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 158: amended, on 1 July 1996, by section 131 of the Domestic Violence Act 1995 (1995 No 86).

Appointment of persons to represent child or young person or assist court

159 Appointment of lawyer to represent child or young person in proceedings

(1)

Where a child or young person who is the subject of any proceedings under Part 2 or Part 3A is not represented by a lawyer, the court or the Registrar of the court must appoint a lawyer to represent the child or young person—

(a)

in those proceedings:

(b)

for any other specified purpose (including in relation to other proceedings under this Act or any other Act) considered desirable.

(2)

Where a court or a Registrar appoints a lawyer under subsection (1), the court or the Registrar (as the case may be) must, so far as practicable, appoint a lawyer who is, by reason of personality, cultural background, training, and experience, suitably qualified to represent the child or young person.

(3)

Although the proceedings in respect of which any lawyer was appointed under subsection (1)(a) have been disposed of, or that the appointment is no longer required for any other purpose specified under subsection (1)(b), the court may, if it is satisfied that it is necessary or desirable in the interests of the child or young person to do so,—

(a)

extend the lawyer’s appointment for any specified purpose; or

(b)

subject to subsection (2), appoint any other lawyer to represent the child or young person for any specified purpose; or

(c)

direct the Registrar of the court to do either of these things.

Compare: 1974 No 72 s 29(3); 1977 No 126 s 8; 1980 No 94 s 162(1), (2)

Section 159 heading: replaced, on 31 March 2014, by section 5(1) of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

Section 159(1): replaced, on 18 May 2009, by section 4(1) of the Children, Young Persons, and Their Families Amendment Act 2008 (2008 No 76).

Section 159(1): amended, on 31 March 2014, by section 5(2) of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

Section 159(2): amended, on 31 March 2014, by section 5(2) of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

Section 159(2): amended, on 18 May 2009, by section 4(2) of the Children, Young Persons, and Their Families Amendment Act 2008 (2008 No 76).

Section 159(3): replaced, on 18 May 2009, by section 4(3) of the Children, Young Persons, and Their Families Amendment Act 2008 (2008 No 76).

Section 159(3): amended, on 31 March 2014, by section 5(2) of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

Section 159(3)(a): amended, on 31 March 2014, by section 5(3) of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

Section 159(3)(b): amended, on 31 March 2014, by section 5(2) of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

160 Appointment of lawyer to assist court

In any proceedings in a Family Court under Part 2 or 3A, the court may—

(a)

appoint a lawyer to assist the court; or

(b)

direct the Registrar of the court to appoint a lawyer to assist the court.

Section 160: replaced, on 31 March 2014, by section 6 of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

161 Further provisions relating to appointment under section 159 or 160

(1)

A lawyer appointed under section 159

(a)

must be served with all documents required to be served on the parties to the proceedings; and

(b)

may—

(i)

request the court to obtain any report that the court is empowered to obtain for the purposes of the proceedings:

(ii)

act on behalf of the child or young person in respect of any matter relating to the detention of that child or young person in secure care, or the care of that child or young person in a residence.

(2)

A lawyer appointed under section 160

(a)

must be served with all documents required to be served on the parties to the proceedings; and

(b)

may request the court to obtain any report that the court is empowered to obtain for the purposes of the proceedings.

Section 161: replaced, on 31 March 2014, by section 6 of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

162 Payment of lawyer appointed under section 159 or 160

(1)

The fees and expenses of any lawyer appointed under section 159 or 160 must—

(a)

be determined in accordance with regulations made under section 16D of the Family Courts Act 1980 or, if no such regulations are made, by the Registrar of the court; and

(b)

be paid in accordance with that determination out of public money appropriated by Parliament for the purpose.

(2)

An invoice rendered by a lawyer appointed under section 159 or 160 for fees and expenses must be given to the Registrar of the court in which the proceedings were heard, and the Registrar may decide to adjust the amount of the invoice.

(3)

A lawyer who is dissatisfied with the decision of the Registrar as to the amount of the invoice may, within 14 days after the date of the decision, apply to a Family Court Judge to review the decision, and the Judge may on the application make any order varying or confirming the decision that the Judge considers fair and reasonable.

(4)

Where the fees and expenses of a lawyer appointed under section 159 or 160 have been paid under subsection (1)(b), the court may, if it thinks it is appropriate, order a party to the proceedings to refund to the Crown an amount that the court specifies in respect of those fees and expenses, and the amount ordered to be refunded is a debt due to the Crown by that party and, in default of payment of that amount, payment may be enforced, by order of a District Court or the High Court, as the case may require, in the same manner as a judgment of that court.

Section 162: replaced, on 31 March 2014, by section 7 of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

163 Appointment of lay advocate

(1)

The court may, at any stage of any proceedings under Part 2 or Part 3A, on application by any party to the proceedings or of its own motion, appoint, in respect of the child or young person who is the subject of those proceedings, any person, not being a barrister or solicitor, to appear in support of that child or young person in those proceedings and, if the court thinks desirable, for such other purposes (including any other proceedings under this Act or any other enactment) as the court may specify.

(2)

Where the court appoints a lay advocate under subsection (1), it shall, so far as practicable, appoint a person who has, by reason of personality, cultural background, knowledge, and experience, sufficient standing in the culture of the child or young person in respect of whom the appointment is to be made to enable that person to carry out his or her duties under this Act.

(3)

The court may make an appointment under subsection (1) notwithstanding that the child or young person is represented in the proceedings by a barrister or solicitor.

(4)

Notwithstanding that the proceedings in respect of which any lay advocate was appointed under subsection (1) have been disposed of or that the appointment is no longer required for any other purpose specified by the court pursuant to that subsection, the court may, if the court is satisfied that it is necessary or desirable in the interests of the child or young person to do so,—

(a)

extend that lay advocate’s appointment; or

(b)

make a further appointment under subsection (1) in respect of that child or young person—

for such purpose as the court may specify.

Section 163(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

164 Further provisions relating to lay advocate

(1)

The principal functions of a lay advocate appointed under section 163 are as follows:

(a)

to ensure that the court is made aware of all cultural matters that are relevant to the proceedings:

(b)

to represent the interests of the child’s or young person’s whanau, hapu, and iwi (or their equivalents (if any) in the culture of the child or young person) to the extent that those interests are not otherwise represented in the proceedings.

(2)

A lay advocate appointed under section 163 in respect of any proceedings—

(a)

shall be served with all documents required to be served on the parties to the proceedings; and

(b)

may—

(i)

call any person as a witness in the proceedings:

(ii)

cross-examine witnesses called by any party to the proceedings or by the court:

(iii)

request the court to obtain any report that the court is empowered to obtain for the purposes of the proceedings:

(iv)

attend any family group conference held in respect of the child or young person who is the subject of the proceedings, and make representations on behalf of the child or young person at any such conference:

(v)

make representations on behalf of the child or young person in respect of any matter relating to the detention of that child or young person in secure care, or the care of that child or young person in a residence.

165 Payment of lay advocate

(1)

The fees and expenses of any lay advocate appointed under section 163 shall, in accordance with regulations made under this Act, be paid out of a Crown Bank Account from money appropriated by Parliament for the purpose.

(2)

Notwithstanding subsection (1), the court may, if it thinks proper, order any party to the proceedings to refund to the Crown such amount as the court specifies in respect of any fees and expenses paid under that subsection, and the amount ordered to be refunded shall be a debt due to the Crown by that party and shall be recoverable accordingly in any court of competent jurisdiction.

Section 165(1): amended, on 25 January 2005, pursuant to section 83(7) of the Public Finance Act 1989 (1989 No 44).

Attendance at hearings and right to make representations

166 Persons entitled to be present at hearing of proceedings in Family Court

(1)

No person shall be present during the hearing of any proceedings in a Family Court under Part 2 or Part 3A relating to a child or young person except—

(a)

officers of the court:

(b)

the parents or guardians or any other person having the care of the child or young person:

(c)

the child or young person:

(d)

any person who is a party to the proceedings:

(e)

any near relative of the child or young person:

(f)

any member of the child’s or young person’s whanau or family group:

(g)

where there is an appropriate iwi social service or cultural social service with respect to the child or young person, a representative of that social service:

(h)

any director of a child and family support service or a representative of any such person:

(i)

any barrister or solicitor representing—

(i)

any parent or guardian or other person having the care of the child or young person:

(ii)

the child or young person:

(iii)

any person who is a party to the proceedings:

(j)

any barrister or solicitor appointed under section 160 to assist the court:

(k)

any care and protection co-ordinator:

(l)

any social worker:

(m)

any lay advocate who appears in support of the child or young person or any parent or guardian or other person having the care of the child or young person:

(n)

witnesses:

(na)

accredited news media reporters:

(nb)

persons whom the Judge permits to be present as support persons for—

(i)

the child or young person on a request by that child or young person:

(ii)

a party on a request by that party:

(o)

any person whom the Judge permits to be present.

(2)

The Judge must agree to a request under subsection (1)(nb) unless the Judge considers there is a good reason why the named support persons should not be permitted to be present.

(3)

If, during the hearing, the Judge requests a person of any of the following kinds to leave the courtroom, the person must do so:

(a)

a witness:

(b)

an accredited news media reporter:

(c)

a support person whom the Judge permitted to be present under subsection (1)(nb).

(4)

Nothing in this section limits any other power of the court—

(a)

to hear proceedings in private; or

(b)

to permit a McKenzie friend to be present; or

(c)

to exclude any person from the court.

Compare: 1974 No 72 s 23; 1980 No 94 s 159(2), (3)

Section 166(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 166(1)(g): replaced, on 8 January 1995, by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 166(1)(na): inserted, on 18 May 2009, by section 6(1) of the Children, Young Persons, and Their Families Amendment Act 2008 (2008 No 76).

Section 166(1)(nb): inserted, on 18 May 2009, by section 6(1) of the Children, Young Persons, and Their Families Amendment Act 2008 (2008 No 76).

Section 166(2): replaced, on 18 May 2009, by section 6(2) of the Children, Young Persons, and Their Families Amendment Act 2008 (2008 No 76).

Section 166(3): inserted, on 18 May 2009, by section 6(2) of the Children, Young Persons, and Their Families Amendment Act 2008 (2008 No 76).

Section 166(4): inserted, on 18 May 2009, by section 6(2) of the Children, Young Persons, and Their Families Amendment Act 2008 (2008 No 76).

167 Child or young person may give evidence in private

In any proceedings in a court under Part 2 or Part 3A relating to a child or young person, the Judge hearing the proceedings may, if he or she thinks it desirable to do so,—

(a)

require all or any of the following persons to withdraw from the court while the child or young person gives evidence:

(i)

any parent or guardian or other person having the care of the child or young person:

(ii)

any other person:

(b)

confer in private with the child or young person.

Compare: 1974 No 72 s 30(4)

Section 167: amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

168 Other powers of court to hear proceedings in private or exclude persons not affected

Nothing in section 166(2) or section 167 limits any other power of the court to hear proceedings in private or to exclude any person from the court.

Compare: 1980 No 94 s 159(5)

169 Right to make representations

(1)

In any proceedings before a court under Part 2 or Part 3A relating to a child or young person, representations may be made to the court on behalf of the child or young person by—

(a)

the child or young person:

(b)

any barrister or solicitor who represents the child or young person:

(c)

any lay advocate who appears in support of the child or young person:

(d)

with the leave of the court, any other person.

(2)

Where any parent or guardian or other person having the care of a child or young person appears before a court as a party to any proceedings before that court under Part 2 or Part 3A, representations may be made to the court on behalf of that parent or guardian or other person by—

(a)

that parent or guardian or other person:

(b)

any barrister or solicitor who represents that parent or guardian or other person:

(c)

any lay advocate who appears in support of that parent or guardian or other person:

(d)

with the leave of the court, any other person.

Compare: 1974 No 72 s 40(b), (c); 1983 No 129 s 9

Section 169(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 169(2): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Mediation conferences

170 Calling of mediation conference

(1)

Where an application is made to the court for a declaration under section 67 (other than on the ground specified in section 14(1)(e)), or for the exercise of the court’s jurisdiction under any other provision of Part 2 or Part 3A, a Family Court Judge or any of the following persons may ask the Registrar of the court to arrange for a mediation conference to be convened:

(a)

the applicant:

(b)

the child or young person to whom the application relates:

(c)

any barrister or solicitor who represents that child or young person:

(d)

any other person upon whom the application has been served in accordance with section 152 or section 154.

(2)

On receiving a request under subsection (1), the Registrar shall—

(a)

appoint a time and place for the holding of the mediation conference, being as soon as reasonably practicable after the receipt of the request; and

(b)

give notice to each of the persons referred to in paragraphs (a) to (d) of subsection (1) of the time and place of the mediation conference, and request each of those persons to attend the conference.

Compare: 1980 No 94 s 13

Section 170(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

171 Objectives of mediation conference

The objectives of a mediation conference are—

(a)

to identify the problem in respect of which the exercise of the court’s jurisdiction is sought; and

(b)

to reach agreement on a solution for the problem.

Compare: 1988 No 4 s 67

172 Procedure at mediation conference

(1)

Every mediation conference shall be presided over by a Family Court Judge.

(2)

The following persons are entitled to be present at, and to participate in, a mediation conference:

(a)

the child or young person to whom the proceedings in respect of which the conference is held relate, unless, in the case of a child, the presiding Judge considers that the attendance of that child would be inappropriate:

(b)

the barrister or solicitor representing the child or young person:

(c)

any other person to whom the notice required by section 170(2)(b) must be given:

(d)

subject to any direction by the presiding Judge to the contrary,—

(i)

any barrister or solicitor representing any parent or guardian or other person having the care of the child or young person who is the subject of the proceedings in respect of which the conference is held:

(ii)

any lay advocate who appears in support of that child or young person or any parent or guardian or other person having the care of that child or young person:

(e)

with the leave of the presiding Judge, any other person.

(3)

Subject to any direction by the presiding Judge to the contrary, every mediation conference shall be held in private.

(4)

The presiding Judge may from time to time adjourn a mediation conference to such time and place as the Judge may determine.

Compare: 1988 No 4 s 68

173 Presiding Judge to make record of proceedings at mediation conference

(1)

Where, at a mediation conference, the parties to the proceedings in respect of which the conference is held reach agreement on the nature of the problem in respect of which the exercise of the court’s jurisdiction is sought, and on the solution for that problem, the presiding Judge shall record in writing the terms of the agreement.

(2)

Where agreement is not reached on all matters, the presiding Judge shall record in writing those matters on which there is agreement and those matters on which there is no agreement.

(3)

In every case, the presiding Judge shall state in the record whether or not—

(a)

the child or young person who is the subject of the proceedings in respect of which the conference is held was present; and

(b)

that child or young person agreed to any matter referred to in subsection (1) or subsection (2) on which the parties reached agreement.

(4)

The record made by the presiding Judge under subsection (1) or subsection (2) shall be filed in the court in which the relevant application is filed.

Compare: 1988 No 4 s 69

174 Power of presiding Judge to make consent orders

(1)

Subject to subsection (2), at a mediation conference the presiding Judge may, by consent of the parties, make any declaration or order that could have been made by the court in the proceedings in respect of which the conference was held.

(2)

Where the making of any order under this Act requires the consent of any person who is not a party to the proceedings, the presiding Judge shall not make that order under subsection (1) unless that person gives that consent.

(3)

An order made under this section shall for all purposes have the same effect as if it were made by consent in proceedings before the court.

Compare: 1988 No 4 s 70

175 Power to require attendance at mediation conference

(1)

Where any person fails to comply with a request under section 170(2)(b) to attend a mediation conference, a District Court Judge may, on the request of the Registrar of the court, issue a summons requiring the person to attend a mediation conference at a time and place to be specified in the summons.

(2)

Section 159 of the Criminal Procedure Act 2011 applies to a summons under this section as if it were a witness summons issued under that section.

Compare: 1988 No 4 s 71

Section 175(2): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

176 Privilege

(1)

No evidence shall be admissible in any court, or before any person acting judicially, of any information, statement, or admission disclosed or made to any person in the course of a mediation conference.

(2)

Nothing in subsection (1) applies to a record made by a Family Court Judge under section 173, or to any consent order made under section 174, or to any proceedings for the review of any such order.

Compare: 1988 No 4 s 72

177 Presiding Judge may hear subsequent proceedings

The Family Court Judge who presides over a mediation conference shall be entitled to hear any subsequent proceedings under the application in respect of which the conference was held unless in all the circumstances the Judge decides, of that Judge’s own motion or on application by any party,—

(a)

that it would be inappropriate for that Judge to do so; or

(b)

that there is some other sufficient reason for the application to be heard by another Judge.

Compare: 1988 No 4 s 73

Reports

178 Medical, psychiatric, and psychological reports

(1)

If, at any stage of any proceedings under Part 2 or Part 3A, it appears to the court to be expedient that a medical, psychiatric, or psychological report should be available to the court in respect of any child or young person to whom the proceedings relate, the court may, on application by any party to the proceedings or the barrister or solicitor representing the child or young person, or of its own motion, if it thinks fit,—

(a)

order the child or young person to attend for a medical, psychiatric, or psychological examination; or

(b)

where the child or young person is, or is to be, held in the custody of the chief executive or detained in any residence, order that the child or young person undergo a medical, psychiatric, or psychological examination at the place at which the child or young person is, or is to be, detained.

(2)

Subject to subsection (3) if, at any stage of any proceedings under Part 2 or Part 3A, it appears to the court to be expedient that a medical, psychiatric, or psychological report should be available to the court in respect of any parent or guardian or other person having the care of any child or young person to whom the proceedings relate or any person who it is proposed should have the care of the child or young person, the court may, on application by any party to the proceedings, or of its own motion, if it thinks fit, order the parent or guardian or other person having the care of the child or young person, or other person, to attend for a medical, psychiatric, or psychological examination.

(3)

The court shall not make an order under subsection (2) requiring any person to undergo any medical, psychiatric, or psychological examination unless that person consents to the making of that order.

(4)

Subject to the right of the person who refuses to consent to the order to explain the reasons for that person’s refusal, and to cross-examine witnesses and call evidence, the court may draw such inferences (if any) from the fact of the refusal as appear to it to be proper in the circumstances.

Compare: 1974 No 72 s 42A(1)–(2); 1977 No 126 s 13

Section 178(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 178(1)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 178(2): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

179 Further provisions relating to medical, psychiatric, and psychological examinations

(1)

Every medical examination carried out under subsection (1) or subsection (2) of section 178 shall be carried out by a registered medical practitioner.

(2)

Every psychiatric examination carried out under subsection (1) or subsection (2) of section 178 shall be carried out by a registered medical practitioner holding a specialist psychiatric appointment or holding vocational registration in the speciality of psychological medicine or psychiatry.

(3)

Every psychological examination carried out under subsection (1) or subsection (2) of section 178 shall be carried out by—

(a)

a registered medical practitioner holding a psychiatric appointment or holding vocational registration in the speciality of psychological medicine or psychiatry; or

(b)

a registered psychologist; or

(c)

a person appointed by the court for the purpose, being a person whom the court is satisfied—

(i)

is entitled to practise as a psychologist, or in the speciality of psychological medicine or psychiatry, in that person’s country of permanent residence; and

(ii)

has qualifications that, in the view of the appropriate registering body in New Zealand, are at least equivalent to those required of a person referred to in paragraph (a) or paragraph (b).

(4)

Every child or young person who is examined under section 178(1) is, where practicable, entitled to have present during that examination 1 adult—

(a)

who is nominated for that purpose by that child or young person or, if the age or level of maturity of the child or young person makes it impracticable for him or her to make such a nomination, by a social worker; and

(b)

who consents to be present.

Compare: 1974 No 72 s 42A(4); 1977 No 126 s 13

Section 179(2): replaced, on 1 July 1996, by section 143(1) of the Medical Practitioners Act 1995 (1995 No 95).

Section 179(3): replaced, on 8 January 1995, by section 27 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

Section 179(3)(a): replaced, on 1 July 1996, by section 143(1) of the Medical Practitioners Act 1995 (1995 No 95).

180 Fees for reports prepared under section 178

Where any person prepares a report pursuant to section 178, the fees and expenses of that person shall be paid by such party or parties to the proceedings as the court shall order or, if the court so decides, shall be paid out of money appropriated by Parliament for the purpose.

Compare: 1968 No 63 s 29A(6); 1980 No 95 s 17

181 Court may order examination to be carried out in psychiatric hospital

(1)

If, at any stage of the hearing of any proceedings under Part 2,—

(a)

2 medical practitioners have certified or given evidence that a psychiatric assessment of any child of or over the age of 10 years, or of any young person to whom the proceedings relate, should be obtained, and it appears to the court that it would not be practicable for such assessment to be carried out outside a psychiatric hospital; or

(b)

2 psychiatric reports (whether obtained pursuant to section 178(1) or otherwise) recommending detention of any such child or young person in a psychiatric hospital for further observation are available to the court,—

the court may, if it considers it expedient, make an order for the detention and examination of that child or young person in a psychiatric hospital for such period, not exceeding 5 days, as the court thinks fit.

(2)

Where an order is made under subsection (1), a Family Court Judge may, on application made at any time before the expiry of the period specified in the order, if he or she is satisfied that it is necessary to detain the child or young person to whom the order relates in a psychiatric hospital for longer than that period for the purpose of completing the assessment or observation of that child or young person pursuant to that order, extend the period for which that child or young person may be detained in that hospital for such period, not exceeding 14 days, as the Judge thinks fit.

(3)

The examination required by an order made under subsection (1) shall be carried out by a medical practitioner holding a specialist psychiatric appointment or holding vocational registration in the speciality of psychological medicine or psychiatry.

(4)

An order made under subsection (1) in respect of any child or young person is sufficient authority—

(a)

for the detention of the child or young person by a social worker or any constable for the purpose of ensuring compliance with the order:

(b)

for the transfer of the child or young person from a residence to a psychiatric hospital:

(c)

for the detention of the child or young person and examination in a psychiatric hospital:

(d)

for the return to any residence in which the child or young person was detained at the time of transfer to a psychiatric hospital.

Compare: 1974 No 72 s 42A(3), (4); 1977 No 126 s 13

Section 181(3): replaced, on 1 July 1996, by section 143(1) of the Medical Practitioners Act 1995 (1995 No 95).

Section 181(4)(a): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

182 Release of child or young person from psychiatric hospital where detention no longer required

Any child or young person who is detained in a psychiatric hospital pursuant to an order made under section 181(1) may be released, or may be returned to a residence, as the case may require, notwithstanding that the period for which the child or young person was ordered to be detained has not expired, if the superintendent of that psychiatric hospital certifies in writing that the assessment of the child or young person has been completed or that no further observation of the child or young person is required.

Compare: 1974 No 72 s 42A(9); 1977 No 126 s 13

183 Review of order made under section 178 or section 181

The court may, from time to time, review any order made under section 178 or section 181, and on any such review the court may make such order as may be just.

184 Court may indicate matters to be dealt with in report

Where the court makes an order under subsection (1) or subsection (2) of section 178 or under section 181(1), it may indicate any specific matter that it requires to be dealt with in any medical, psychiatric, or psychological report.

185 Sections to have effect in place of sections 38 to 44 of Criminal Procedure (Mentally Impaired Persons) Act 2003

In respect of any person to whom an application for a declaration under section 67 relates, the provisions of sections 178 to 183 have effect in the place of the provisions of sections 38 to 44 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Section 185: replaced, on 1 September 2004, by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).

186 Report by social worker

(1)

Where the court makes a declaration under section 67, the court—

(a)

must obtain and consider a report from a social worker before making—

(i)

a custody order under section 101 (other than an interim custody order) placing the child or young person in the custody of any person listed in section 101(1); or

(ii)

a guardianship order under section 110 that appoints the chief executive, an iwi social service, a cultural social service, or any other person as the sole guardian of the child or young person to whom the declaration relates; or

(iii)

a special guardianship order under section 113A; and

(b)

may obtain and consider a report from a social worker before making any other order referred to in section 83(1) or 84(1).

(2)

In the course of preparing a report for the purposes of subsection (1)(a), the social worker must consider whether there is a realistic possibility that the child or young person to whom the report relates will be returned to the care of the parent, guardian, or other person who had the care of the child or young person before the declaration under section 67 was made.

(2A)

Every report provided to the court pursuant to subsection (1)(a) must (without limiting subsection (3)) make a recommendation, with reasons, on whether there is a realistic possibility that the child or young person to whom the report relates can be returned to the care of the parent, guardian, or other person who had the care of the child or young person before the declaration under section 67 was made, and—

(a)

if there is such a realistic possibility, must—

(i)

set out the steps that the parent, guardian, or other person must take, or the behavioural changes that he or she must make, before the child or young person can be returned to his or her care; and

(ii)

recommend a time when, or a period within which, the option of returning the child or young person to the care of the parent, guardian, or other person will be pursued, having particular regard to the age of the child or young person; or

(b)

if there is no such realistic possibility, set out—

(i)

the child’s or young person’s likely long-term needs, and proposals for how those needs will be met; and

(ii)

if a special guardianship order under section 113A is contemplated, a recommendation about which guardianship rights, if any, should be shared between the special guardian and the existing guardian (as defined in that section).

(3)

Every report obtained pursuant to this section in respect of a child or young person shall include—

(a)

such information as is required to be included in such reports by guidelines issued from time to time in writing by the chief executive after consultation with the Principal Family Court Judge:

(b)

such other information as may assist the court in its consideration of the matter:

(c)

such other information as the court may direct.

(4)

Every report required pursuant to this section shall be prepared, where appropriate, in consultation with a Maatua Whangai worker.

(5)

In this section, the term social worker includes a person employed in the speciality of social work by the director of a child and family support service, or by an iwi social service or a cultural social service, who consents to make a report under this section.

Compare: 1974 No 72 s 41(3); 1982 No 135 s 9(1)

Section 186(1): replaced, on 30 June 2016, by section 31 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 186(2): replaced, on 30 June 2016, by section 31 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 186(2A): inserted, on 30 June 2016, by section 31 of the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 (2014 No 41).

Section 186(3)(a): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 186(5): inserted, on 8 January 1995, by section 28 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

187 Cultural and community reports

(1)

Where the court makes a declaration under section 67 that a child or young person is in need of care or protection, the court may, before making any order referred to in section 83(1), of its own motion, or at the request of any of the persons specified in subsection (2), require any person to report to the court on—

(a)

the heritage and the ethnic, cultural, or community ties and values of the child or young person or the child’s or young person’s family, whanau, or family group:

(b)

the availability of any resources within the community that would, or would be likely to, assist the child or young person or the child’s or young person’s family, whanau, or family group:

(c)

where the declaration was made on the ground specified in section 14(1)(a) or (b), the availability of any option—

(i)

that would be an alternative to an order under Part 2 relating to the custody or guardianship of the child or young person; and

(ii)

that would, or would be likely to, ensure that the kind of harm suffered by the child or young person will neither continue nor be repeated.

(2)

Any of the following persons may ask the court to obtain a report under subsection (1):

(a)

the child or young person:

(b)

any parent or guardian or other person having the care of the child or young person:

(c)

any barrister or solicitor representing—

(i)

any parent or guardian or other person having the care of the child or young person:

(ii)

the child or young person:

(d)

any barrister or solicitor appointed under section 160 to assist the court:

(e)

any lay advocate who appears in support of the child or young person or any parent or guardian or other person having the care of the child or young person:

(f)

any social worker after consultation, where appropriate, with a Maatua Whangai worker.

(3)

Unless it is impracticable or inappropriate to do so, the court shall ascertain and have regard to the wishes of the child or young person and the child’s or young person’s family, whanau, or family group in determining the person required to furnish a report under this section.

(4)

The fees and expenses of any person who furnishes a report under this section shall, if the court so directs, be paid out of money appropriated by Parliament for the purpose.

188 Privilege for reports

Any person who furnishes any report to the court pursuant to section 178 or section 181 or section 186 or section 187 shall not be under any civil or criminal liability in respect of the report unless that person has acted in bad faith or without reasonable care.

Compare: 1974 No 72 s 41(8); 1982 No 135 s 9(1)

189 Adjournment for purposes of obtaining report

(1)

Any adjournments for the purposes of obtaining a report pursuant to section 178 or section 181 or section 186 or section 187

(a)

shall be for the minimum period necessary to enable the report to be prepared; and

(b)

shall in no case exceed a total of more than 28 days unless the court in any special case otherwise determines; but

(c)

may otherwise be on such conditions as the court thinks fit.

(2)

Where any proceedings are adjourned for the purposes of obtaining any report pursuant to section 178 or section 181 or section 186 or section 187, the person responsible for preparing that report shall make all reasonable endeavours to ensure that the report is filed with the court at least 2 working days before the date set for the hearing of those proceedings to resume.

Compare: 1974 No 72 s 42A(2); 1977 No 126 s 13

190 Reports may be made orally

The court may, unless any party to the proceedings objects, direct that any report required pursuant to section 186 (other than a report to which subsection (2) of that section applies) or section 187 be made orally to the court.

191 Access to reports

(1)

Subject to section 192, a copy of every written report furnished to the court pursuant to section 178 or section 181 or section 186 or section 187 shall be given by the Registrar of the court—

(a)

to every person entitled to appear and be heard on the proceedings to which the report relates, and to any barrister or solicitor appearing for that person:

(b)

to each lay advocate, barrister or solicitor, or other person representing a child or young person to whom the proceedings relate or a parent or guardian or other person usually having the care of the child or young person:

(c)

to the chief executive:

(d)

to any other person whom the court considers has a proper interest in receiving a copy of the report.

(2)

Every such copy shall, wherever possible, be supplied not later than 1 working day before the sitting of the court.

Compare: 1974 No 72 s 42(1); 1977 No 126 s 12(1), (2)

Section 191(1)(c): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

192 Court may order report not to be disclosed

The court may order that the whole or any part of a report given to any person pursuant to section 191(1) shall not be disclosed to any person specified in the order where it is satisfied that such disclosure would be, or would be likely to be, detrimental to the physical or mental health, or the emotional well-being, of any child or young person or other person to whom the report relates.

Compare: 1974 No 72 s 42(5)

193 Right to tender evidence on report

Any person to whom a report prepared pursuant to section 178 or section 181 or section 186 or section 187 relates may tender evidence on any matter referred to in the report and brought to that person’s attention as a result of the disclosure of the report to that person pursuant to section 191 or being told of its contents.

Compare: 1974 No 72 s 42(3); 1977 No 126 s 12(3)

194 Court may call person making report as witness

The court may if it thinks fit call as a witness the person making any report to which section 193 applies.

Compare: 1974 No 72 s 42(4)

Miscellaneous provisions

195 Evidence
[Repealed]

Section 195: repealed, on 31 March 2014, by section 17A(d) of the Family Courts Act 1980 (1980 No 161).

196 Special provisions applying to disclosure of communications to medical practitioner or clinical psychologist

(1)

A barrister or solicitor appointed pursuant to section 159 to represent a child in any proceedings under Part 2 or Part 3A may, for the purposes of section 32 of the Evidence Amendment Act (No 2) 1980, consent to the disclosure by a registered medical practitioner or a clinical psychologist in any such proceedings of any protected communication made to that registered medical practitioner or clinical psychologist by that child, and any consent so given shall be deemed to be the consent of the child given under that section.

(2)

For the purposes of this section the expressions clinical psychologist, protected communication, and registered medical practitioner have the same meanings as in section 32 of the Evidence Amendment Act (No 2) 1980.

Section 196: replaced, on 1 November 1989, by section 2 of the Children, Young Persons, and Their Families Amendment Act 1989 (1989 No 70).

Section 196(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

197 Standard of proof

Subject to section 198, the standard of proof applying in any proceedings under Part 2 or Part 3A shall be the standard of proof applying in civil proceedings.

Section 197: amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

198 Special provisions applying to applications for declaration on ground of child’s offending

(1)

The court shall not make a declaration under section 67 on the ground specified in section 14(1)(e) unless—

(a)

it would have found the child guilty of an offence if the proceedings had been pursuant to a charging document filed under the Criminal Procedure Act 2011 charging the child with the offence; and

(b)

the court is satisfied that the child knew either that the act or omission constituting the offence was wrong or that it was contrary to law.

(2)

Nothing in section 195 or section 197 applies to any proceedings for a declaration under section 67 on the ground specified in section 14(1)(e).

Compare: 1974 No 72 s 29(2)

Section 198(1)(a): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

199 Power of court to call witnesses

(1)

In any proceedings in a court under Part 2 or Part 3A (not being proceedings for a declaration under section 67 on the ground specified in section 14(1)(e)) the court may, of its own motion, call as a witness any person whose evidence may, in its opinion, be of assistance to the court.

(2)

The power conferred by subsection (1) shall include power to call as a witness any parent or guardian or other person having the care of the child or young person to whom the proceedings relate, or any person with whom any parent or guardian or other person is cohabiting, or any near relative of the child or young person.

(3)

A witness called by the court under this section shall have the same privilege to refuse to answer any question as the witness would have if the witness had been called by a party to the proceedings.

(4)

A witness called by the court under this section may be examined and re-examined by the court, or by any barrister or solicitor assisting the court, and may be cross-examined by or on behalf of any party to the proceedings or by any barrister or solicitor or lay advocate appointed to represent a child or young person to whom the proceedings relate.

(5)

Sections 159 and 161 to 165 of the Criminal Procedure Act 2011, so far as they are applicable and with the necessary modifications, shall apply with respect to every person called as a witness by the court under this section as if that person had been called by a party to the proceedings.

(6)

The expenses of any witness called by the court under this section, in accordance with the prescribed scale of witnesses expenses, shall be paid in the first instance out of a Crown Bank Account from money appropriated by Parliament for the purpose.

Compare: 1980 No 94 s 165

Section 199(1): amended, on 1 October 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 199(5): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

Section 199(6): amended, on 25 January 2005, pursuant to section 83(7) of the Public Finance Act 1989 (1989 No 44).

200 Court to ensure that application for declaration that child or young person in need of care or protection dealt with promptly

Where an application is made to the court for a declaration under section 67, the court shall, so far as it is practicable, give priority to the proceedings in order to ensure that, unless there are special reasons why a longer period is required, the hearing of the application commences not later than 60 days after the application is filed in the court.

201 Adjournments

(1)

Subject to this section, the court may, from time to time, adjourn the hearing of any proceedings under Part 2 or Part 3A.

(2)

In considering—

(a)

whether to adjourn the hearing of any such proceedings; and

(b)

the period of any such adjournment,—

the court shall have regard to the principle that proceedings under Part 2 or Part 3A should be dealt with as expeditiously as is possible.

(3)

On the granting of an adjournment under this section the court may—

(a)

make an order under section 78 (which relates to the custody of a child or young person pending the determination of any proceedings):

(b)

make an order under section 121 (which relates to access and other rights in respect of a child or young person).

Section 201(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 201(2): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 201(3)(a): amended, on 8 January 1995, by section 29 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).

202 Orders by consent

In any proceedings under Part 2 or Part 3A, the court may make any order (being an order that it is empowered to make in those proceedings) by the consent of all the parties to the proceedings.

Compare: 1980 No 94 s 170

Section 202: amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

203 Costs

In any proceedings under Part 2 or Part 3A, the court may make such order as to costs as it thinks fit.

Compare: 1968 No 63 s 27B; 1980 No 95 s 14

Section 203: amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

204 Rehearings

(1)

Where a declaration or an order has been made or refused on an application under Part 2 or Part 3A, the court may, on the application of the applicant or any other person who was a party to the proceedings or the barrister or solicitor representing the child or young person to whom the proceedings relate, grant a rehearing of the application on such conditions as it thinks fit.

(2)

Notice of any such rehearing shall be given to such persons and in such manner as the court directs.

(3)

An application for a rehearing under this section shall not operate as a stay of proceedings unless the court so orders.

(4)

If the court grants an application for a rehearing, the declaration or order shall continue to have effect unless the court orders otherwise.

Compare: 1980 No 94 s 173

Section 204(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

205 Preventing removal of child or young person from New Zealand

(1)

This section applies where—

(a)

an application is made to the court for a declaration under section 67, or for an order under section 207K or section 207Q, in relation to a child or young person; and

(b)

any District Court Judge or, if no District Court Judge is available, any Registrar (not being a constable) is satisfied that there are reasonable grounds for believing that any person is about to take that child or young person out of New Zealand.

(2)

Where this section applies, the District Court Judge or Registrar—

(a)

may order that any tickets or travel documents (including the passport) of the child or young person, or of the person believed to be about to take the child or young person out of New Zealand, or of both, be surrendered to the court for such period and upon such conditions as the court thinks fit; and

(b)

may, in addition, issue a warrant directing any social worker or constable to take possession of the child or young person (using such reasonable force as may be necessary) and place the child or young person in the custody of the chief executive pending the order or further order of the court.

(3)

Any person against whom an order under subsection (2)(a) is in force may apply to the court for the discharge of the order, and the court, in its discretion, may discharge the order.

(4)

Section 123 shall apply, with all necessary modifications, in relation to every warrant issued under subsection (2) as if every such warrant were a warrant issued under section 122 (which relates to the enforcement of rights of access).

Compare: 1968 No 63 s 20; 1979 No 52 s 3(1)

Section 205(1)(a): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Section 205(1)(b): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 205(2)(b): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 205(2)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 205(4): amended, on 2 September 1996, by section 2(4) of the Children, Young Persons, and Their Families Amendment Act 1996 (1996 No 112).

206 Offence to take child or young person out of New Zealand where proceedings pending

(1)

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $2,000 who, without the leave of the court, takes or attempts to take any child or young person out of New Zealand knowing that an application for a declaration under section 67, or for an order under section 207K or section 207Q, in respect of that child or young person is about to be made or that a determination of any such application is pending.

(2)

No proceedings for contempt of court shall be taken against any person in respect of any act to which this section applies.

Compare: 1968 No 63 s 20(3), (4); 1979 No 52 s 3(1)

Section 206(1): amended, on 1 July 2013, by section 4 of the Children, Young Persons, and Their Families Amendment Act (No 2) 2011 (2011 No 83).

Section 206(1): amended, on 1 November 1999, by section 6 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

206A Leave required in certain cases to commence substantially similar proceedings

(1)

A proceeding (a new proceeding) may not be commenced under Part 2 without the leave of the court if that new proceeding—

(a)

is substantially similar to a proceeding previously filed in a Family Court by any person (a previous proceeding); and

(b)

is to be commenced less than 2 years after the final direction or order was given in the previous proceeding.

(2)

The leave of the court may only be given under subsection (1) if, since the final direction or order was given in the previous proceeding, there has been a material change in the circumstances of—

(a)

any party to the previous proceeding:

(b)

any child or young person who was the subject of the previous proceeding.

(3)

In this section, a new proceeding is substantially similar to a previous proceeding if—

(a)

the party commencing the new proceeding was a party to the previous proceeding; and

(b)

a child who is the subject of the new proceeding was the subject of the previous proceeding; and

(c)

the new proceeding—

(i)

is commenced under the same provision of this Act as the previous proceeding; or

(ii)

is for an order varying the order made in the previous proceeding; or

(iii)

is for an order discharging the order made in the previous proceeding.

(4)

This section does not apply if—

(a)

every party to the new proceeding consents to its commencement; or

(b)

the new proceeding is commenced by—

(i)

the chief executive; or

(ii)

a social worker; or

(iii)

an iwi social service; or

(iv)

a cultural social service; or

(v)

the director of a child and family support service; or

(vi)

a constable.

Section 206A: inserted, on 31 March 2014, by section 8 of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

206B Power to dismiss proceedings

The court may dismiss proceedings before it under Part 2 if it is satisfied—

(a)

that the proceedings relate to a specified child and that the continuation of the proceedings is, in the particular circumstances, clearly contrary to the welfare and best interests of the child; or

(b)

that the proceedings are frivolous or vexatious or an abuse of the procedure of the court.

Section 206B: inserted, on 31 March 2014, by section 8 of the Children, Young Persons, and Their Families Amendment Act 2013 (2013 No 76).

207 Vexatious proceedings

(1)

The court may dismiss any proceedings before it under Part 2 if it is satisfied that they are frivolous or vexatious or an abuse of the procedure of the court.

(2)

The court may, if it is satisfied that a person has persistently instituted vexatious proceedings under Part 2 or under the corresponding provisions of any former Act (whether those proceedings were in respect of the same person or matter or different persons or matters), after giving the first-mentioned person an opportunity of being heard, order that no proceedings under Part 2, or no proceedings under that Part of any specified kind or in respect of any specified person or matter, shall be commenced by the first-mentioned person without the leave of the court.

Compare: 1980 No 94 s 163

Part 3A Trans-Tasman transfer of protection orders and protection proceedings

Part 3A: inserted, on 1 November 1999, by section 3 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Purpose of Part

Heading: inserted, on 1 November 1999, by section 3 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

207A Purpose of Part

The purpose of this Part is to provide for the transfer of protection orders and protection proceedings from New Zealand to a State or Territory of Australia, and from a State or Territory of Australia to New Zealand, so that—

(a)

children or young persons who are the subject of protection orders can continue to receive care or protection even though they move to or from New Zealand; and

(b)

protection proceedings can be determined speedily even though the children or young persons who are the subject of the proceedings move to or from New Zealand.

Section 207A: inserted, on 1 November 1999, by section 3 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Interpretation

Heading: inserted, on 1 November 1999, by section 3 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

207B Interpretation

In this Part, unless the context otherwise requires,—

child welfare law means—

(a)

Parts 2 and 3; or

(b)

a law of a participating State that—

(i)

corresponds to Parts 2 and 3; or

(ii)

is declared to be a child welfare law for the purposes of this Part by regulations made under section 447(aa)

Children’s Court, in relation to a participating State, means the court with jurisdiction to hear and determine protection proceedings at first instance

interim order means—

(a)

an order under section 207T; or

(b)

an equivalent order made under an interstate law

interstate law, in relation to a participating State,—

(a)

means a law that corresponds to this Part; and

(b)

includes a law that is declared to be an interstate law for the purposes of this Part by regulations made under section 447(ab)

interstate officer, in relation to a participating State, means—

(a)

the holder of an office or position (by whatever name called) that is an office or position the holder of which is declared, in relation to that State, to be the interstate officer for the purposes of this Part by regulations made under section 447(ac); or

(b)

the holder of the office or position (by whatever name called) that, by or under the child welfare law of that State, has principal responsibility for the care or protection of children and young persons in that State

participating State means a State or Territory of Australia in which an interstate law is in force

protection order has the meaning given to it by section 207C

protection proceedings means—

(a)

proceedings in a court or a Children’s Court under a child welfare law for the making, variation, discharge, or revocation of a protection order or interim order, or for the extension of any period of such an order; or

(b)

proceedings in a court or a Children’s Court under a child welfare law (for example, proceedings for a declaration under section 67 that a child or young person is in need of care or protection) for a declaration or finding (by whatever name called)—

(i)

that a child or young person is in need of care or protection; and

(ii)

that empowers the court or Children’s Court to make a protection order

review proceedings means proceedings—

(a)

by way of an application for review under the Judicature Amendment Act 1972; or

(b)

by way of an application for mandamus, injunction, prohibition, or certiorari; or

(c)

by way of an application for a declaratory judgment

sending State means the participating State from which a protection order or protection proceedings are transferred to New Zealand under this Part and the interstate law of that State

young person includes a person—

(a)

who is 17 years old or older; and

(b)

to whom a guardianship order made under section 110 applies.

Section 207B: inserted, on 1 November 1999, by section 3 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

207C Meaning of protection order

(1)

In this Part, protection order

(a)

means a final order under a child welfare law that makes the custody, guardianship, supervision, or support of a child or young person the responsibility (in whole or in part, and however that responsibility is described) of any 1 or more of the persons specified in subsection (2); and

(b)

includes an interim custody order made pursuant to section 102 that makes the custody of a child or young person the responsibility (in whole or in part) of any 1 or more of the persons specified in subsection (2).

(2)

The persons referred to in subsection (1) are—

(a)

a government department or statutory authority:

(b)

a person who is the head of a government department or statutory authority or otherwise holds an office or position in, or is employed in, a government department or statutory authority:

(c)

an organisation or body approved or authorised by or under the child welfare law to exercise or perform powers, duties, or functions conferred, imposed, or prescribed by or under the child welfare law:

(d)

the chief executive (by whatever name called) of an organisation or body referred to in paragraph (c).

Section 207C: inserted, on 1 November 1999, by section 3 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

Transfer of protection orders from New Zealand by chief executive

Heading: inserted, on 1 November 1999, by section 3 of the Children, Young Persons, and Their Families (Trans-Tasman Transfer of Protection Orders and Proceedings) Amendment Act 1999 (1999 No 116).

207D Chief executive may transfer protection order

(1)

The chief executive may transfer a protection order (the home order) to a participating State if,—

(a)

in his or her opinion, a protection order to the same or a similar effect as the home order could be made under the child welfare law of that State; and

(b)

the home order is not subject to an appeal to the High Court, or to any review proceedings; and

(c)

the interstate officer of the participating State has consented in writing to the transfer and to the proposed terms of the protection order to be transferred (the interstate order); and

(d)

any consent required under section 207F has been given; and

(e)

any consultation required under section 207G has been carried out; and

(f)

the child or young person is not subject to—

(i)

an order made under paragraph (c), or any of paragraphs (k) to (o), of section 283; or

(ii)

a community-based sent