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An Ex-Parte Court Order is a Court Order that is issued based on the evidence of only one side in a case.  Ex-Parte Orders are used in situations where there is a risk that the other people involved in the case might do things that would endanger someone’s life or make a Court Hearing difficult or impossible if they were told what was going on.

Ex-Parte orders can be used in the following situations under the CYPFAct.

•  Interim Custody (S 78 + S67 + S 70(2)(b) + S101 & S102)
• Medical Examinations (S 50)
• Producing Documents (S 60)
• Interim Restraining Orders (S 88)
• Surrender Travel Documents, including tickets and passports (S 205)
• Warrant preventing Child’s Removal from New Zealand
• Warrant to enforce Access Rights
• Warrant of Arrest (of Child)

Right to have Case heard. (S 169)

Parents, Guardians and Children all have the right to be heard in the Family Court concerning any orders before final decisions are made.

Uplifting of Children. From School, From Home.

Children can be taken into the Custody of the Chief – Executive of the Department of Child, Youth and Family Services for a number of reasons.  Generally Police and Social Workers will do this with a Custody Order from the Family Court.  A child or young person who has been charged with a crime can be arrested on an Arrest Warrant, (just as any adult can).  The Uplifting Officers need to carry the court papers on them and should give the parents, guardian or other person who is caring for the child a copy of the Court Order when uplifting the child.

(On some occasions, Court Orders are not necessary.  These are normally cases where the parents of a child cannot be located, unable to care for them, or the child is found committing a crime.  However, this would not happen if parents were able to care for the child properly and it was sure that all concerned would appear in Court.

Often School Age children are uplifted directly from school, before parents arrive to collect them at the end of the school day.  This allows the children to be uplifted with the least amount of trauma to the children.  However, such an uplift can be traumatic for the parents.

Lack of Support for Parents who have had their children uplifted.

When children are uplifted, the process can be extremely traumatic.  To make things worse, Police and Social Workers uplifting the children often do nothing for the parents as they consider the needs of the children to be paramount and often their only concern.  Consequently, anyone who has their children uplifted needs to be supported to overcome the trauma of the uplift.  Sympathetic Friends and Family, Personal Counsellor, or counselling services like Lifeline, Samaritans, or even Victims Support should be involved.  During the first hours after uplift parents may feel suicidal.

Under Investigation.

CYFS have quite wideranging powers to investigate child Care and Protection cases.  Managing these cases makes up about 80% of the CYFS workload, based on the annual budget of the department.  CYFS can obtain medical records and other personal information about the children being investigated from Doctors, Hospitals, Schools, and other social and educational services.  CYFS may also perform Police checks and will work in conjuction with the Police if criminal activity is suspected, either by an adult abusing or neglecting children or by children committing crimes.  Most CYFS and Police districts have a Care and Protection Panel that co-ordinate cases that come to either CYFS or the Police's attention.

Parents may be unaware that their family is the subject of a CYFS investigation until a Social Worker arrives at the door with a Custody Order.  This will generally be an Ex-Parte Custody Order under Section 78 of the CYPF Act.  At this time, the children may be taken into Custody, often with the assistance of the Police.  This is often done to prevent the children being hidden by parents and stop further child abuse taking place while a case is fully investigated.  In some serious situations, children can be taken into care without a Court Order, though one must be obtained in order for CYFS to keep the children in their care.

Once CYFS applies to the Family Court for a Declaration that children are in need of Care and Protection, a Family Group Conference (FGC) must be held as soon as possible, generally within 60 days of CYFS first applying to the Court.  During the time until the FGC is held, the case may come before the Family Court for review on a weekly or fortnightly basis.  CYFS will report to the Family Court about progress in the case. 

CYFS may also apply for various Court Orders, including Custody, Protection, Restraining, Services, Medical Examination, Document Production, Psychological Reports and other similar Orders.  The Children, through Counsel for Child, and also the Parents, through their lawyer, if they have one, are entitled to be represented, and their views heard at these court hearings.  However, depending on the evidence that CYFS presents to the Court, it may issue interim or ex-parte Orders without hearing from other parties before it issues the Orders.  This is to allow the Court to investigate what needs to be done without the children being at risk of harm.  While it is possible to appeal these sorts of decisions to the High Court, the time it takes to get a hearing in the High Court will generally mean that an FGC will be held first.

Finding a Lawyer. Legal Aid.

It is important to get a lawyer familiar with Family Law, as the operation of the Family Court is slightly different from criminal courts.  If you already have a lawyer, they may be able to recommend a specialist who can help.  The Family Court is not normally able to assist, unless the lawyer is to be Counsel for the Child, as the children in any case have their own right to a separate lawyer.  Often the Yellow Pages is a good place to start.  The local Community Law Centre or Law Society may be able to advise, as might the Citizen’s Advice Bureau.

You may be entitled for Legal Aid if you are on a low income.  Your Lawyer can advise you how to apply.  Information is also available from the Legal Services Board.

Going to the Family Court.

There are no fees for making applications or filing papers in the Family Court.

The Family Court is used when children are taken into the Custody of the Chief Executive of the Department of Child, Youth and Family Services because they are in need of care and protection and this cannot be done by the parents.

The Family Group Conference.

Family Group Conferences need to be held whenever Children are in need of Care and Protection.  Family Group Conferences are generally convened by the Social Workers from the Department of Child, Youth and Family Services.  The FGC Co-ordinator will invite members of the wider family together to discuss if the children are in need of care and protection.  The parents of the children will be invited as well as Counsel for Child.  Social Workers will present their evidence and may make suggestions about what should happen and what the Department’s opinion is.  They will then let the Family discuss matters amongst themselves.  The agreement of the whole FGC is required for any decisions to be acted upon.  The FGC may recommend to the Social Workers how the FGC thinks the case should be handled.  However, if anyone does not agree, then the case will have to go to the Family Court for a hearing and the Family Court will decide what is to be done.

Remember, Family Group Conferences can only recommend one thing to the Family Court: That the children are in need of care and protection.  In the Family Court, this will then result in any interim Custody Orders being finalised.  If you are part of an FGC and do not want the children to remain in the Custody of the Chief Executive of the Department of Child, Youth and Family Services until they are 18 years old, you should not agree that the children are in need of care and protection.  The Family Court does not have the power to follow any other instructions from the FGC.

Case Example

Children were uplifted about 6 weeks before Christmas.  The FGC was held about 10 days before Christmas.  There was insufficient information or evidence to assess if it was safe to return the children to the parents, as psychiatric reports had not been completed.  The FGC agreed to adjourn until reports were available.  It also needed to recommend certain Christmas holiday arrangements.  However, to do this it also needed to declare the children were in need of care and protection over the Christmas period, as it could make no recommendations unless such a decision was made.  Subsequently, at the Family Court hearing, this was seen as the FGC actually declaring that the children were in need of care and protection.

Conclusion

DO NOT agree to any FGC decision, whatever it may be, if you wish to have the children returned to their parents’ custody at some time in the future.

ONLY agree to an FGC decision if you believe that the children are in need of care and protection and should be removed from their parents’ care.

Family Court Hearing.

The Family Court is a closed Court, this means only certain people are allowed in the Court.  Apart from Court Officers, Police and Social Workers, the Crown’s Legal Representatives, Parents, their legal representatives, their lay advocates, Counsel for Child, and the children, everyone else, including witnesses and relatives needs permission from the court (i.e. the Judge) to be present.

Family Court Decision.

 After hearing all the evidence and argument, the Family Court will make a final determination on the case and issue (permanent) Orders.  This may be some time after the hearing. 

Appealing to the High Court.

 Family Court determinations and decisions can be appealed to the High Court.  Generally there needs to be good legal grounds for doing this.  These appeals are not normally covered by legal aid.  An experienced Barrister is recommended for these sorts of appeals.  Often the High Court will send the case back to the Family Court with recommendations about how the case should be handled by the Family Court.

The Care and Protection Plan.

After the Family Court determination is issued, a Care and Protection Plan needs to be prepared by CYFS that describes how Custody will be implemented. A Care and Protection Plan should be prepared by CYFS for every child in their custody.  This should be done every year, (or six months for young children). 

Family Court Reviews.

The Family Court will review the Care and Protection Plan.  Parents have the right to comment on the plan, to correct any errors, propose alternatives.