How "The System" Works
This page describes how New Zealand's Child "Protection" system works or is supposed to work.
The following is meant as a general guideline and may differ in individual cases, depending on circumstances. However, the Family Court and the Department of Child, Youth and Family Services SHOULD normally follow this process. If they do not then you, as parents, have the right to challenge what is happening by taking the matter to Court through the review and appeal processes below.
Right to be informed.
CYFS Social Workers, (and caregivers) have certain obligations under the Children, Young Persons, and Their Families Act. Under Section 8 of the Children Young Persons and Their Families Act 1989, ANY Person making decisions about the care and protection of the Children in their Custody must keep both Parents and Chidren informed of their Decisions AND their reasons for those decisions. This should be BOTH verbally AND in writing ie a letter.
Complaints about CYFS Social workers.
- As at the end of October 2002, the New Zealand Parliament was considering a formal Social Worker Registration and complaint process. Until this legislation is enacted, the only complaint process is:
If you do not get an answer to your questions about your case from a Social Worker, or are unhappy about their behaviour,
- contact the Social Worker's Manager (first),
- then complain to the Chief Executive of CYFS, and if that is not successful
- complain to the Commissioner for Children or the Ombusman or Both.
Your Lawyer may be able to help you write these complaint letters.
You may also want to talk to you local MP's office who may also be able to give you some advice or assistance.
Do I need a Lawyer?
Most parents involved in CYFS cases will need to talk to a Lawyer who is experienced in Family Law, as soon as possible. If you already have a lawyer who has dealt with your case, you should use them in the first instance, unless you feel that they are not helping your case at all.
Finding a Good Lawyer
Then ring around and ask each listed Lawyer if they handle CYFS cases and briefly describe your CYFS case and any problems you may be having with CYFS. Ask if the Lawyer help you?
The answers the Lawyers give should sort out genuinely hepful lawyers from the money hungry ones, at least, and you should be able to choose one from their answers.
CYFS taking Children into care.
Many cases that come to CYFS attention have a lot of "History" behind what has happened. Many parents find that they are powerless to control what is happening to them. Often they are too embarassed, upset or emotionally distraught by what is happening to fully understand and cope on their own but also feel that they cannot seek help or are reluctant to do this as they do not trust anyone. The following advice is meant as a starting point, as a result it is fairly general and you will need to consult a good family lawyer to take matters further.
The way things are supposed to go in these sorts of cases can vary. Often families come to the attention of CYFS social workers through notifications or reports made by others in the community who are concerned about the safety of children. These may include teachers, medical professionals, neighbours, friends or the Police and the Justice System. It is CYFS job to investigate and assess if children need Care and Protection as a result of these notifications:
Sometimes parents themselves may approach CYFS for assistance. CYFS are able to take chidren into respite care for up to 28 days as a result of a voluntary agreement with the parents. This is a private short term arrangement that does not involve the Court. It is often used to allow CYFS to provide and fund school holiday camps and similar breaks for disadvantaged and difficult children. However, the same law also permits CYFS to provide respite foster care when the parents consent to this. Parents can withdraw their consent at any time as the agreements are voluntary.
However, if a CYFS investigation leads the Social Worker to believe that a child is in need of "Care and Protection" and that they need to be taken into state Custody, then they need to apply to the Family Court for an Order that declares this. The process for taking Children into Care and Protection when the parents DO NOT Consent, or the arrangement is going to be more than 28 days is:
(a) CYFS Social Worker applies to the Family Court for an Order that declares the child or chidren in need of "Care and Protection". This can be done "Ex-Parte" without advising the parents. The Police also have these same powers to apply for an order. Sometimes - when it is thought urgent by CYFS or the Police - the children may be taken into interim care first and an application made to the Family Court within the next 5 days. The Family Court Judge will hear the Social Worker's application and will issue an Interim Custody Order of the Child or Children if there is a case. CYFS Social Workers must have this Court Order to take the children into care.
(b) CYFS Convenes a Family Group Conference (FGC) of the wider family. Including Children's Parents, Grandparents, Aunts, Uncles, Adult Cousins etc.)
(c) The FGC decides if the Children are in need of "Care or Protection" or not. Probably NOT in cases where the parents do not consent to the child(ren) being removed from their care.
NOTE: The same process is also used for youth justice cases, the Victim may then be present at the FGC, and the FGC may then make recommentations about how the offender should be handled. This is NOT the case where the children are not involved with criminal offending, then the FIRST and PRIMARY consideration is if "Care or Protection" is necessary.
(d) The case goes back to the Family Court with the decision and recommendations of the FGC.
(e) If the FGC agreed that the Children were in need of "Care or Protection", they may have made recommendations, which the Court may support.
(f) If the FGC could not agree then the Court will need to decide on the "Care or Protection", by having a Hearing where witnesses will be called to give evidence and the case heard. The Family Court Judge will then make a decision based on the evidence heard. Either way there should be a final judgement declaring the childeren in need of "Care or Protection" as well as
Custody and Additional Guardianship Orders.
(g) CYFS will be asked to submit a "Care or Protection" Plan after the Judgement. Parents have the right to oppose the plan or suggest alternative arrangements.
(h) Every year, or 6 months if the children are under 5, the Family Court will review the case and ask CYFS to submit a new "Care or Protection" Plan as well as a "Care or Protection" Report about how things have gone over the previous year (or 6 months). Parents have the right to oppose the plan and report, present alternative evidence and suggest alternative arrangements.
(i) Parents can apply to the Family Court at any time to modify or discharge (revoke or withdraw) any Court Order as well as apply for Orders for Access, Medical or Psychiatric Assessments and other services. This needs to be supported by evidence that it is in the best interests of the child(ren). The Court may limit this right if repeated similar (vexatious)applications are made.
(j) At any time where the Court Orders are not being complied with, parents have the right to apply to the Family Court for a Warrant to enforce the Court Orders.
