Waitomo Papakâinga Development Society Incorporated v Te Kôti Whânau ki Kaitaia ( [2022] NZHC 2792 (27 October 2022)

Last Updated: 10 January 2024

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2021-488-000019 [2022] NZHC 2792

UNDER	the Judicial Review Procedure Act 2016
IN THE MATTER	of the Oranga Tamariki Act 1989 and a direction by Te Kōti Whānau ki Kaitaia (the Family Court at Kaitaia) in proceeding FAM-2018-029-000017 relating to the custody and care of IHA
BETWEEN	WAITOMO PAPAKĀINGA DEVELOPMENT SOCIETY INC Applicant
AND	TE KŌTI WHĀNAU KI KAITAIA (FAMILY COURT AT KAITAIA) First Respondent Continued over page

Hearing:	16 May 2022
Appearances:	J P Ferguson and G C Warren for the Applicant J Gough and K Peirse-O’Bryne for Oranga Tamariki T Norton for TTTB T Manuel-Belz for the child A I Davis as counsel to assist
Judgment:	27 October 2022

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 27 October 2022 at 2:00pm pursuant to Rule 11.5 of the High Court Rules

.............................................................................. Registrar/Deputy Registrar

Solicitors/counsel:

Kāhui Legal, Wellington; Te Kōpū Legal, Rotorua; T Norton, Auckland; Family Law Centre, Whangarei; Gifford Devine Lawyers, Hastings; Crown Law, Auckland

WAITOMO PAPAKĀINGA DEVELOPMENT SOCIETY INC v TE KŌTI WHĀNAU KI KAITAIA (FAMILY COURT AT KAITAIA) [2022] NZHC 2792 [27 October 2022]

TTTB and JDB Second Respondents

THE CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR

CHILDREN

Intervenor

Introduction [1]

Parties and Counsel [9]

Evidence [18]

Background [19]

The partnership between Waitomo and Oranga Tamariki [19]

Why Waitomo does not want lawyer for child to meet kaitiaki whānau or go to

their homes [37]

Plan of care for IHA [42]

Judicial conference 9 September 2020 [50]

Judicial conference 14 December 2020 [56]

Waitomo applies to be added as a party [64]

Judicial conference 14 January 2021 [66]

Family Court’s directions 18 February 2021 [71]

Legislative Framework [74]

Purposes and Principles of the OTA [75]

Chief executive’s duties [81]

Care and protection – custody and guardianship orders [82]

Plans and review of plans [83]

Participation in hearings [87]

Lawyer for child [88]

The Family Court and Oranga Tamariki [95] Natural Justice – Waitomo needed to be heard [97] Legal principles [98]
Discussion [100]

Did Waitomo decline an opportunity to be heard? [103]

Failure to consider relevant considerations [111]

The Family Court misdirected itself as to the law [117]

Unreasonableness [127]

Relief [134]

Result [139]

Costs [140]

Introduction

• [1] This case is about a 13 year old Māori child I will refer to as IHA. I agree with IHA’s mother who says in her affidavit: ko te mea nui is IHA. The most important thing is IHA.

• [2] This case is also about the inter-related roles and responsibilities of some of those involved in the care of IHA: Oranga Tamariki; the applicant Waitomo Papakāinga Development Society Incorporated (Waitomo), which is an approved cultural social service under s 396 of the Oranga Tamariki Act 1989 (OTA); te Kōti Whānau ki Kaitaia (the Family Court); and lawyer for child.

• [3] IHA is in the custody of Oranga Tamariki, but he is in the day-to-day care of kaitiaki whānau caregivers introduced by Waitomo. Waitomo continues to support kaitiaki whānau and to report to Oranga Tamariki. Waitomo has kaitiaki whānau’s address and visits them at home, but Oranga Tamariki does not. This is in accordance with a statutory, contractual and Treaty-based partnership between Waitomo and Oranga Tamariki.¹

• [4] Proceedings are on foot in the Family Court for it to consider the adequacy of Oranga Tamariki’s care plan for IHA.² In those proceedings lawyer for child wished to know where IHA was residing and to meet with him at kaitiaki whānau’s home.

• [5] For reasons set out below, Waitomo says (amongst other things) that any requirement that Waitomo provide information about kaitiaki whānau to lawyer for child would be contrary to IHA’s mana, wellbeing and best interests; and inconsistent with Waitomo and Oranga Tamariki’s statutory and Treaty-based partnership. On 11 January 2021 Waitomo applied to be joined as a party to the Family Court proceedings so it could be heard on these matters.

1. The relationship between Oranga Tamariki and Waitomo is discussed in more detail at [19]–[36] below.

² Oranga Tamariki Act 1989, ss 128 and 135.

• [6] However, at a judicial conference on 14 January 2021 the Family Court directed that:³

...

(b) I specifically direct that [lawyer for child] be provided with the full names of the caregivers and [IHA’s] address so that she can fulfil her role as counsel for the child and meet with him in his home environment and report to the Court so that the review can proceed.

(c) I specifically require a report from counsel for the child so that I can determine whether the review documents and specifically the plan filed is adequate to serve his needs.

(d) The [joinder] application filed by Waitomo Papakāinga is to be served on both parents so that they have an opportunity to be heard as to whether they should be joined as a party. That application will not be progressed until such time as they have had that opportunity.

(directions)

• [7] Waitomo was not at that judicial conference. Oranga Tamariki opposed the directions and asked that Waitomo be given the opportunity to be heard, but it was not.

• [8] Waitomo applies for judicial review. It says that by making the directions the Family Court: breached natural justice; failed to consider mandatory considerations; misdirected itself as to the law; and acted unreasonably. It seeks a declaration that the directions are unlawful and an order quashing them or setting them aside. It also seeks declarations concerning its role and that of lawyer for IHA; and the respective roles of s 396 providers and lawyers for children more generally.

Parties and Counsel

• [9] Waitomo has been an approved cultural social service provider under s 396 of the OTA since 10 June 2019. However, it has led and supported social service initiatives for over 30 years. Its whānau care services are focused on caring for tamariki who connect by whakapapa to Te Hiku o Te Ika a Māui (Te Hiku),⁴ which is

3. Chief Executive of Oranga Tamariki v [TTTB] FC Kaitaia FAM-2018-029-17, 14 February 2021 [14 January 2021 Minute], at [17].

⁴ Literally, the tail of the fish of Māui.

a collective reference to the iwi of Te Aupouri, Ngāti Kurī, Te Rarawa, Ngāti Kahu and Ngāi Takoto who have mana whenua in the area of Northland from Mangamuka to Te Rerenga o Wairua (Cape Reinga). Waitomo is a member of Te Kahu Oranga Whānau, a collective of iwi and Māori social service organisations in Te Hiku.

• [10] The Family Court abides. Counsel had leave to file submissions in relation to relief, which she did.⁵

• [11] The Chief Executive of Oranga Tamariki – Ministry for Children (Oranga Tamariki) has custody and guardianship of IHA pursuant to a Custody Order and an Additional Guardianship Order. Oranga Tamariki was originally named as a respondent in this proceeding, but by consent it was struck out as a party and appeared as an intervener. Oranga Tamariki makes no allegations and no relief is sought against it, but it clearly has an interest in the outcome of the proceeding.

• [12] The first-named second respondent (TTTB) is IHA’s mother. Ms Norton was appointed as amicus curiae to liaise with TTTB to ensure that her views were before the Court. TTTB attended the hearing throughout.

• [13] The second-named second respondent is IHA’s father. He did not wish to be involved in the proceeding.

• [14] IHA is connected by whakapapa to Te Hiku. Ms Manuel-Belz was appointed as lawyer for IHA in this proceeding. Ms Manuel-Belz is not lawyer for child in the Family Court proceeding. Importantly, she reported that IHA is happy living with his kaitiaki whānau. He does not want lawyer for child to have the details of his kaitiaki whānau, or to meet lawyer for child at their home.

• [15] Oranga Tamariki and TTTB agree with Waitomo that the directions are unlawful and should be quashed or set aside. Oranga Tamariki broadly agrees with the other declarations Waitomo seeks, but suggests more fact-specific terms.

⁵ I acknowledge the assistance of counsel for the Family Court, the late Vicki McCall.

• [16] In the absence of an active contradictor the Solicitor-General appointed Ms Davis as counsel to assist the Court. Ms Davis also agreed that the directions were unlawful and should be quashed. She agrees further that the declarations Waitomo seeks concerning the respective roles of Oranga Tamariki, s 396 providers and lawyers for child are reasonable and appropriate.

• [17] In the face of such agreement the hearing did not proceed as a traditional adversarial exchange. Instead, counsel each made submissions concerning: the proper interpretation and application of the OTA; the inter-related roles of those involved in IHA’s care; and the reasons why the directions should be set aside. Counsel emphasised different points but their submissions were complementary.

Evidence

• [18] The parties filed an agreed statement of facts and an agreed bundle of documents. Helpful (uncontested) affidavits were filed by:

(a) for Waitomo: Katie Murray, the Chief Executive of Waitomo; Yvonne Herbert, Projects Manager of Waitomo; and Haami Piripi, Chief of Ahipara and Chairperson of Te Rūnanga o Te Rarawa;

(b) for Oranga Tamariki: Shona Hobson, Service Manager for Partnering for Outcomes Te Tai Tokerau (Oranga Tamariki, Kaitaia); and Marisa Little, Practice Leader (Oranga Tamariki, Kaitaia); and

(c) TTTB.

Background

The partnership between Waitomo and Oranga Tamariki

• [19] The nature of the partnership between Waitomo and Oranga Tamariki, is key to this case. Their partnership derives from:

(a) The principles of Te Tiriti o Waitangi.

(b) Section 7AA of the OTA which imposes a duty on the chief executive of Oranga Tamariki to provide a practical commitment to the principles of Te Tiriti of Waitangi. Amongst other things, Oranga Tamariki is to develop strategic partnerships with iwi and Māori organisations in order to provide opportunities to delegate functions to qualified people within those organisations.

(c) A Memorandum of Understanding between Te Kahu Oranga Whānau and Oranga Tamariki dated 10 December 2018 (MoU).

(d) A Strategic Partnership Agreement between Te Kahu Oranga Whānau and Oranga Tamariki dated 26 February 2021 (Strategic Partnership Agreement).

MoU/Strategic Partnership Agreement

• [20] As a member of Te Kahu Oranga Whānau Waitomo is a party and signatory to the MoU which records by way of overview:

The parties to this Memorandum of Understanding (MoU) agree to bring their focused collaborative effort to improve outcomes for mokopuna Māori and their whanau in the Te Hiku o Te Ika rohe. The parties have worked together informally building a high trust relationship over the past four years to maximise outcomes for whānau. They are now formalising this relationship through this MoU with a view to working together as partners. This agreement outlines the partnership and key engagement protocols for working together.

• [21] The parties agreed to prioritise shared goals including:

• Delivering quality services – develop and implement systems and processes to support shared quality delivery of services.

• True and trusted partnerships – developing and applying our tikanga to grow true and trusted partnership in the Far North.

• Growing a high trust adaptable model – develop a shared service model that is adaptable for the needs of tamariki and whanau in the Far North.

• [22] The MoU was expressly “developed with s 7AA(2)(c) of the [OTA] in mind. It is intended that this MoU will provide the platform for the development of a future Strategic Partnership Agreement at a date to be determined by the partnership”. The

Strategic Partnership Agreement is dated 26 February 2021. It is a short (three pages) agreement setting out values, principles, and objectives.

• [23] Importantly, Waitomo and Oranga Tamariki agree that the MoU and the Strategic Partnership Agreement reflect the partnership relationship and practices that have evolved between them over time. This partnership is based on Te Tiriti o Waitangi principles as well as statutory responsibilities and contractual obligations. It is the framework within which Waitomo and Oranga Tamariki work together to enable whakapapa-based whānau care for Te Hiku tamariki.

Section 396 Accreditation

• [24] Ms Hobson is Oranga Tamariki’s Service Manager for Partnering for Outcomes, Te Tai Tokerau. She manages at an operational level the strategic partnership between Oranga Tamariki and Te Kahu Oranga Whānau, including Waitomo. She oversees the contracting arrangements with providers such as Waitomo, supervises the monitoring of those providers and works with partners towards enabling community devolution.

• [25] Ms Hobson explains that between 2004 and 2015 Waitomo was contracted by Child, Youth and Family (CYF) to provide care for tamariki in kaitiaki whānau homes. However, Waitomo decided to stop providing those care services after difficulties arose in the relationship. These difficulties were not of Waitomo’s making. On occasion CYF had provided kaitiaki whānau’s details to third parties who then caused difficulties for kaitiaki whānau at their homes.

• [26] In 2017 Ms Hobson had discussions with Waitomo about again providing care services to help tamariki from Te Hiku to remain in Te Hiku, connected to their whakapapa and whenua. She says there was a need for local care in Te Hiku, and Waitomo are a dedicated provider with invaluable local knowledge and connections. As part of this process Ms Hobson had to work through the difficulties that CYF had caused for Waitomo in the past so that Oranga Tamariki and Waitomo could work together again.
• [27] In June 2019 Waitomo was approved under s 396 of the OTA and accredited to provide care services for Oranga Tamariki. Ms Hobson confirms that the accreditation process is stringent. Waitomo had to meet Oranga Tamariki’s highest level of core standards and care standards. Oranga Tamariki worked with Waitomo to meet these standards and to re-activate its accreditation. Oranga Tamariki could not have approved Waitomo as a cultural social service unless satisfied that Waitomo is suitable to act as the custodian or guardian of children and young people; and capable of exercising or performing the powers, duties and functions imposed or conferred under the OTA.⁶

Outcomes Agreement

• [28] As an approved cultural social service provider, Waitomo has been comprehensively assessed for its capacity to provide certain services and perform certain delegated responsibilities on behalf of Oranga Tamariki. Once accredited, Waitomo was able to contract with Oranga Tamariki to provide these services and perform these functions.

• [29] Oranga Tamariki entered into an Outcomes Agreement that took effect from 1 July 2020. Under the Outcomes Agreement Waitomo provides “shared care”, which is an arrangement where a child is in the custody of Oranga Tamariki but is placed with an approved organisation such as Waitomo.

• [30] In general terms, within the context of the Outcomes Agreement, whānau care services include identifying appropriate caregivers to care for tamariki (using whakapapa and whanaungatanga principles) and enabling the care of tamariki by whānau caregivers under “kaitiaki whānau (whānau caregivers) based arrangements and models of care” (as further described in the Outcomes Agreement).

• [31] The Outcomes Agreement requires Waitomo to deliver its whānau care services in accordance with Oranga Tamariki’s Service Specifications for Shared Care as at July 2019 (service specifications). The service specifications set out how the

⁶ Oranga Tamariki Act, s 397.

provider (Waitomo) is responsible for the assessment, approval and support of kaitiaki whānau.

• [32] Amongst other things the service specifications require providers such as Waitomo to:

(a) Work with Oranga Tamariki to place tamariki Māori where possible with members of their wider whānau, hapū, iwi or family group, and ensure support and assistance to meet their needs.

(b) Assess prospective caregivers (and their households) to determine whether they are suitable caregivers, able to: care for the child; provide a safe, stable, and loving home for the child; promote mana tamaiti (tamariki); and acknowledge the whakapapa and support the practice of whanaungatanga in relation to the child. The assessment is to include a police vet obtained from the New Zealand Police Vetting Service.⁷

• [33] So within their partnership it is Waitomo’s role to ensure caregivers are suitable. Oranga Tamariki’s role is to approve and monitor the processes and practices Waitomo use to identify and assess suitable caregivers. Ms Murray explains that Waitomo carries out stringent checks on potential caregivers. As well as Police checks, Waitomo’s whakapapa links and adherence to whanaungatanga principles mean it is able to carry out wider and more in-depth checks than Oranga Tamariki or another agency could do on its own.

• [34] Waitomo is also responsible for maintaining the relationship with kaitiaki whānau. Waitomo staff visit the kaitiaki whānau on a weekly basis. Another kaimahi (social worker) also meets the child weekly. Ms Hobson explains that the frequency of these visits exceeds the expectations of the accreditation standards.

7. An Addendum to the service specifications sets out what a Provider must do to meet the relevant standards for caregiver and care placement and support. These standards are derived from regulations 45 to 56 of the Oranga Tamariki (National Care Standards and Related Matters) Regulations 2018.

• [35] Importantly, she says it has always been an essential part of the arrangement with Waitomo that it would be the only point of contact for the kaitiaki whānau. The service specifications do not provide for Oranga Tamariki to have a direct relationship with kaitiaki whānau. This is because Waitomo builds a trusting relationship with kaitiaki whānau who can find it overwhelming to deal with many different parties, including Oranga Tamariki.

• [36] In her affidavits Ms Murray explains how whakapapa connections and whanaungatanga principles are central to Waitomo’s work with tamariki. They are a primary source of Waitomo’s obligations to tamariki. Whanaungatanga principles enable Waitomo to identify kaitiaki whānau who share whakapapa connections with tamariki. Ms Murray says this is at the heart of enabling tamariki to reconnect with their whānau, hapū and iwi. The application of these principles is in accordance with the OTA; the partnership between Oranga Tamariki and Waitomo; and te ao Māori.

Why Waitomo does not want lawyer for child to meet kaitiaki whānau or go to their homes

• [37] Waitomo and Oranga Tamariki agree that an essential aspect of their partnership is that Waitomo will be the sole point of contact with kaitiaki whānau.

• [38] Ms Murray says that an important part of attracting the right whānau caregivers has been Waitomo’s promise to them to be responsible for dealing with the Government, the Courts, lawyers and other professionals. She says many whānau find these people and organisations intimidating, particularly in the whānau care context. Ms Murray says it would be insulting to kaitiaki whānau to have lawyer for child go into their homes to assess their suitability. She says whānau are less likely to agree to be kaitiaki whānau if it means they will have to deal directly with officials, lawyers and other professionals. This will reduce Waitomo’s effectiveness as an approved s 396 provider because whānau will not agree to be carers.

• [39] Ms Herbert confirms Waitomo and Oranga Tamariki’s approach was designed to prevent kaitiaki whānau from having official visits to their homes from anyone other than Waitomo. Instead, Oranga Tamariki social workers meet tamariki such as IHA at

Waitomo’s offices. She also says this helps Waitomo attract and retain whānau caregivers, and allows them to focus on caring for tamariki.

• [40] Mr Piripi supports this approach. Mr Piripi describes from a te ao Māori perspective the likely impacts of directions requiring lawyer for child to attend the home of IHA and his kaitiaki whānau in order to report to the Family Court. He says:

25. A Court-directed visit to the home of the caregivers by a Court appointed advocate is intrusive and will invade the sanctity of the whānau; whose only offence is to offer their home and whānau strength in an effort to help. It will be seen as a threat. The whānau will naturally resent the sense of being audited by strangers. Whatever the intentions, it would manifest as mistrust by the Court. It is reminiscent of those colonial practices from the past where Māori homes were inspected by the state to see if they conformed to a Pakeha ideal or way of life. It was this very process that resulted in the institutionalisation of generations of tamariki Māori.

26. From a mana tamariki standpoint, it is clearly the anthesis of the correct approach.

27. That does not mean that there is no accountability mechanism. Rather it is that the accountability is within a whanaungatanga framework, one that is as old as Kupe – not a kāwanatanga framework that turned up yesterday.

• [41] Mr Piripi concludes:

82. Māori organisations need to be acknowledged as capable and trusted to solve problems in a Māori way. Oranga Tamariki operating in Te Hiku trusts Waitomo. But we need the Court to trust Waitomo in the same way, and most importantly to acknowledge the legitimacy which allows whānau caregivers to do what they do best without the sense of having an official looking over their shoulders in their own homes. It signals a fundamental distrust of our people and institutions in a role in which the state itself has dismally failed.

Plan of care for IHA

• [42] Oranga Tamariki had previously placed IHA with the S whānau, who are Oranga Tamariki caregivers. Difficulties arose within that placement (for reasons that are understandable and nobody’s fault).

• [43] On 26 June 2020, the Family Court accepted a s 128 plan dated 24 April 2020 for IHA’s care with the S whānau. The plan also provided for Oranga Tamariki to

organise a hui with Waitomo’s care team to consider potential long-term caregivers for him. The Family Court directed a review of IHA’s plan in three months’ time.

• [44] In June 2020, Oranga Tamariki formally engaged Waitomo to identify long- term whānau caregivers for IHA who connected with him by whakapapa. Waitomo carried out whakapapa research and identified four potential long-term kaitiaki whānau for IHA.

• [45] On 26 August 2020 Oranga Tamariki filed an updated s 128 plan in advance of a judicial conference on 9 September 2020. This identified the need to find a long- term whānau placement for IHA, and recorded that Oranga Tamariki was working in collaboration with Waitomo for this purpose. The August 2020 plan included specific actions as follows:

Waitomo Papakāinga – Kaitiaki Whānau continue to explore IHA’s whakapapa to identify an appropriate whānau caregiver;

The social worker to work in collaboration with Kaitiaki Whānau co- ordinator, including regular communications and [hui] to monitor the progress of whakapapa research;

Once a caregiver is identified, the social worker will work together with the Kaitiaki co-ordinator to develop IHA’s transition plan into his new placement;

Kaitiaki Whānau co-ordinator and social worker to maintain regular contact with IHA, [IHA’s interim caregivers] to provide updates of the whakapapa research, potential whānau caregivers and the next steps.

• [46] Oranga Tamariki also filed a Review of Plan Social Work Report. This reviewed the 24 April 2020 plan as required by s 135 of the OTA. This also noted the work being undertaken with Waitomo to identify long-term whānau caregivers under their Kaitiaki Whānau programme. It noted that the S whānau had attended a hui with Waitomo, as they believed it was in IHA’s best interests to work alongside the “iwi provider”. The S whānau remained committed to caring for IHA until another whānau caregiver was identified.

• [47] After that matters progressed quickly. On 31 August 2020, Waitomo confirmed the B whānau to be suitable caregivers for IHA, and that he could transition to their care. A hui took place between IHA, the S whānau, the B whānau and Waitomo. They

learned that the S whānau and the B whānau are connected by whakapapa. IHA liked the B whānau and was happy to move into their care. S whānau were initially surprised at the speed of things but were content to follow IHA’s lead. IHA transitioned to the care of the B whānau on 4 September 2020.

• [48] On 7 September 2020, Oranga Tamariki advised lawyer for the child that a permanent caregiver had been located and that IHA was now in Waitomo’s care.

• [49] In a report to the Family Court dated 7 September 2020, lawyer for the child raised a number of concerns about the plan prepared in respect of IHA. In particular, the lawyer for the child stated in her report that:

The writer has been contacted by the social worker by telephone on 7 September 2020 and advised of the following:

(a) [IHA] was moved from his current placement to a whanau placement approved by “Waitomo” – a local iwi organisation on Friday 4 September 2020;

(b) There was no transition and the Oranga Tamariki social worker was not aware of the move or involved in any planning of the move;

(c) The social worker is not able to visit IHA in the new home due to contractual restraints;

(d) The writer does not have any details for the new caregivers;

(e) The writer is unsure what is intended for IHA’s schooling;

(f) The writer is unaware of the caregiver’s attitude or position in respect to ongoing whanau contact;

(g) The new caregivers have not received any training in respect to IHA’s difficulties and diagnoses and ways to manage these (the writer is unsure if the caregivers are even aware of IHA’s vulnerabilities).

Judicial conference 9 September 2020

• [50] The judicial conference was held on 9 September 2020 for the purposes of reviewing IHA’s care plan. By then the 26 August 2020 care plan was out of date because it did not deal with IHA’s very recent placement with the B whānau.

• [51] Waitomo was not formally notified of the 9 September 2020 judicial conference, or invited to attend.
• [52] At the conference, lawyer for child repeated concerns set out in her earlier report. She expressed concerns that IHA was moved to new caregivers without her knowledge, and that she did not know who they are or where IHA now lives. The transcript of the conference records lawyer for child saying:

I really don’t understand how the Ministry is able to delegate the approval of caregivers for children that are subject to 101 and 110 orders. These are not Oranga Tamariki approved caregivers, I don’t know who they are or what their background is. I'm not even able to undertake my own checks, Ma’am, because I don’t have details for them. Quite frankly, what has happened here is unacceptable.

• [53] The Family Court issued a minute dated 9 September 2020 recording, amongst other things, that:⁸

(a) the Family Court was also concerned that IHA’s placement had been changed, apparently without particular reference to the social worker;

(b) the Family Court did not accept the plan for IHA and adjourned the matter for four weeks “...in which time there needs to be transparency of information and a further plan developed for filing and consideration by the Court”; and

(c) a professionals’ meeting be convened to understand how the position had been arrived at for IHA.

• [54] On 27 November 2020 Oranga Tamariki filed an updated plan for IHA’s care. This set out in detail the care that kaitiaki whānau were providing for IHA, and the support being provided to them by Oranga Tamariki and Waitomo. The plan noted Waitomo had responsibility for key actions relating to IHA’s placement including weekly visits to kaitiaki whānau and other aspects of monitoring and support.

• [55] The s 135 review of the plan provided further details about the placement. It explained that Waitomo reported IHA to be making positive progress with kaitiaki whānau who wishes for him to remain in their care. The Oranga Tamariki social

8. Chief Executive of Oranga Tamariki v [TTTB] FC Kaitaia FAM-2018-029-17, 9 September 2020 [Minute of Judge], at [6]–[9].

worker described IHA as “relaxed, open and ready to share”. He told her “I like my new home with nana and papa”. The review confirmed kaitiaki whānau had completed all the checks required by the contractual arrangements between Waitomo and Oranga Tamariki.

Judicial conference 14 December 2020

• [56] Waitomo was not formally notified of the 14 December 2020 conference, or invited to attend.

• [57] The transcript of the 14 December 2020 conference records that the Family Court asked Oranga Tamariki:

(i) whether the home address would be provided to lawyer for child “[b]ecause [lawyer for child] needs to be able to go and speak with the caregivers”;

(ii) whether they were “going to let lawyer for child check out where the child is living?”; and

(iii) whether Oranga Tamariki’s social worker had been to the home.

• [58] At the conference, the Family Court commented that:

In the absence of [lawyer for child] being able to check that out, I don’t know we can say the plan is adequate because how do we know what is going on in that home and what their needs are if [lawyer for child] can’t actually go to the home and check that out....

• [59] The transcript records that counsel for Oranga Tamariki advised the Family Court she was not at liberty to disclose kaitiaki whānau’s residential address. However, counsel confirmed Waitomo is a s 396 provider with high standards of care, and that kaitiaki whānau are Waitomo caregivers who have undergone training and meet these standards. Counsel explained that someone from Waitomo visits and monitors the home every week. Counsel also confirmed that IHA is available to meet with lawyer for child at Waitomo’s offices at a time and place to be arranged.
• [60] The lawyer for the child expressed concern that the kaitiaki whānau’s address had not been released to her, and that the Oranga Tamariki social worker did not know it. She said she had met IHA at school and she had concerns she was unable to raise with his caregivers. She pointed out that the care training and weekly monitoring visits are being carried out by Waitomo, not Oranga Tamariki, and that Waitomo would not release the residential address.

• [61] TTTB also expressed concerns about not being told earlier that IHA had been placed with new caregivers.

• [62] The Family Court further adjourned the review of the plan and made the following observations and directions:⁹

• [7] ... What is of concern in respect of [IHA] is that nobody appears to know where he is, other than that he is placed with a family by the name of [...] and that he is in a placement with Waitomo Papakāinga.

• [8] Oranga Tamariki have advised that they will not disclose his address where he is living to lawyer for child and I am advised today that the social worker similarly is not aware of that address. She knows the area, but she has not been to the home. She advises that she has spoken with [IHA] and his siblings and everything appears to be positive, but she does not know where he is living. That is of considerable concern because it means that whilst [lawyer for child] has seen [IHA] at school, she has been unable to go and see him at home. She advises that she is at a loss as to why that information cannot be released.

...

• [12] I am very concerned about [IHA] because I cannot be satisfied that the review of the plan is appropriate today because that situation cannot be check[ed] out. I am not going to progress the review today. What I am going to do is I am going to adjourn that matter to a date to be advised as soon as possible in the New Year. I would like [Oranga Tamariki] to attend Court with the social worker to update as to what is occurring with respect to [IHA]. I would like a further plan or at least a s 186 report to be filed advising whether the current plan is adequate and to provide updating details around [IHA’s] current placement.

• [13] In the event that information cannot be provided, then either the practice leader or site manager is also to attend to explain why lawyer for child is not able to be afforded an opportunity to go and check out the placement for this child. [Lawyer for child] is the eyes and ears of the child and the communicator with the Court. Until such time as she is able to check that out, I cannot be satisfied that the plan is adequate.

9. Chief Executive of Oranga Tamariki v [TTTB] FC Kaitaia FAM-2013-070-1186, 14 December 2020 [Minute of Judge].

• [63] The Family Court adjourned the matter until 14 January 2020.

Waitomo applies to be added as a party

• [64] On 11 January 2021 Waitomo applied to join the proceedings as a party (joinder application). It wished to make representations on the question of whether its kaitiaki whānau’s details should be provided to lawyer for child, and for what purpose. It made the application on the grounds that, amongst other things, a direction requiring Waitomo to provide information about its caregivers to lawyer for child for assessment purposes would be inconsistent with:

(a) the wellbeing, best interests, and mana of the child;

(b) the safety and wellbeing of the whānau caregivers;

(c) Waitomo’s role as a s 396 provider;

(d) Oranga Tamariki’s role as the approval authority under the Oranga Tamariki Act 1989;

(e) Waitomo’s relationship of trust and confidence with whānau caregivers; and

(f) Waitomo’s effectiveness in providing care to tamariki Māori.

• [65] Because Waitomo was not a party it did not have access to lawyer for child’s reports or Family Court minutes. In her supporting affidavit Ms Murray said Waitomo needed access to these documents in order to be able to respond to the issues they raised. Ms Murray also explained that Waitomo would ensure that children such as IHA placed with whānau caregivers would be available to meet with lawyer for child at Waitomo’s office or any venue, other than the caregivers’ home.

Judicial conference 14 January 2021

• [66] Waitomo did not attend the 14 January 2021 conference. Counsel for Oranga Tamariki confirmed that it supported Waitomo’s joinder application.

• [67] Because kaitiaki whānau’s address had not been released to lawyer for the child, the Oranga Tamariki Practice Lead Ms Little, attended the conference, as

directed. She explained that based on previous experience Waitomo was not present because it was waiting for a response to its joinder application.

• [68] Ms Little explained the arrangement between the parties, namely that Oranga Tamariki communicated directly with Waitomo, not with the whānau caregivers. She asked for lawyer for child to do the same. Ms Little noted that the caregivers had been fully vetted, and that for them “some level of autonomy in their own homes is really important... being able to maintain privacy”. She said that any direction requiring kaitiaki whānau’s address to be given to lawyer for child would set an important precedent in dealings with other iwi providers. Ms Little asked that Waitomo have the opportunity to be heard before the Family Court made any such direction.

• [69] However, the Family Court made the directions requiring lawyer for child to be given the kaitiaki whānau’s address so that lawyer for child could perform her role of meeting with IHA in his home environment and reporting to the Family Court.

• [70] In terms of Waitomo’s joinder application, the Family Court required this to be served on IHA’s parents. The Family Court further observed:¹⁰

• [4] ... I must say from my perspective and also in terms of having heard from [lawyer for child] I am not sure at this stage what would be served by adding them as a party to the proceedings. From my perspective, I do not know what that will add in terms of resolution.

...

• [5] The orders currently are in favour of the Chief Executive and whilst they may have contracted the actual social work to another agency, the responsibility clearly sits with the Chief Executive. As in all Family Court matters, however, where iwi and wider whānau are involved with a child, I am always happy to hear from those people if they are able to contribute in a constructive manner to ensure that we have robust plans and arrangements for children.

10. Chief Executive of Oranga Tamariki v [TTTB] FC Kaitaia FAM-2013-070-1186, 14 January 2021 [Minute of Judge].

Family Court’s directions 18 February 2021

• [71] In a memorandum of counsel dated 16 February 2021, Waitomo requested copies of the 14 December Minute and the 14 January Minute and transcripts of the 14 December 2020 conference and the 14 January 2021 conference.

• [72] In a Memorandum of Judge dated 18 February 2021, the Family Court directed, among other things:

...

2. Before any Minutes of Court proceedings are released, the parents must be served with a copy of the request so that they have an opportunity to be heard as to whether or not they agree.

...

6. If Waitomo Papakainga wish to attend the next conference of this matter, they are welcome to advise the Court and other parties involved in the proceeding, so that that can be considered.

• [73] On 22 February 2021 Waitomo issued this proceeding.

Legislative Framework

• [74] The OTA establishes a framework for the care and protection of children and young people such as IHA. When applying and administering the OTA the well-being and best interests of the child or young person are the first and paramount consideration, having regard to the principles set out in ss 5 and 13 of the OTA.¹¹

Purposes and Principles of the OTA

• [75] The OTA was amended (and renamed) in 2017, largely with effect from 1 July 2019.¹²

• [76] Section 7AA was added requiring the chief executive to recognise and provide a practical commitment to Te Tiriti of Waitangi. The amendments clarify how the

11. Oranga Tamariki Act, s 4A(1). This does not apply to Parts 4 and 5 and ss 351 – 360 of the Oranga Tamariki Act concerning Youth Justice.

¹² Children, Young Persons and Their Families (Oranga Tamariki) Legislation Act 2017, s 2.

OTA is to be applied in cases involving tamariki Māori, including when Oranga Tamariki is working together with a cultural social service such as Waitomo.

• [77] The stated purposes of the OTA were amended to include: a practical commitment to the principles of Te Tiriti o Waitangi in the way described in the Act;¹³ and recognition of mana tamaiti (tamariki), whakapapa, and the practice of whanaungatanga for children and young persons.¹⁴

• [78] The principles which are to guide Courts and others exercising powers under the OTA were amended. Amongst other things Courts and others should protect a child or young person’s mana tamaiti (tamariki) and well-being by recognising their whakapapa and the whanaungatanga responsibilities of their family, whanau, hapū, iwi, and family group.¹⁵

• [79] In placement decisions there is a preference for placing children and young people with a member of their wider family, whānau, hapū, iwi or family group who is able to meet their needs, including by providing a safe, stable and loving home.¹⁶ Mana tamaiti (tamariki), whakapapa and whanaungatanga are to be recognised and promoted.¹⁷ A child or young person in the care or custody of Oranga Tamariki or a cultural social service such as Waitomo should receive special protection and assistance designed to respect and honour the importance of their whakapapa and the whanaungatanga responsibilities of their family, whanau, hapū, iwi, and family group.¹⁸

• [80] These amendments confirm that these essential tikanga Māori principles must be considered by persons exercising powers and functions under the Act, including the Court. These quintessentially Māori concepts are defined in s 2 of the OTA as follows:

mana tamaiti (tamariki) means the intrinsic value and inherent dignity derived from a child’s or young person’s whakapapa (genealogy) and their belonging to a whanau, hapū, iwi, or family group, in accordance with tikanga Māori or its equivalent in the culture of the child or young person

¹³ Oranga Tamariki Act, s 4(f).

¹⁴ Section 4(g).

¹⁵ Section 5(1)(b)(iv) and s 5(1)(c).

¹⁶ Section 13(2)(i)(iii)(A).

¹⁷ Section 13(2)(i)(iii)(C).

¹⁸ Section 13(2)(j)(iii).

...

tikanga Māori means Māori customary law and practices

...

whakapapa, in relation to a person, means the multi-generational kinship relationship that help to describe who the person is in terms of their mātua (parents), and tūpuna (ancestors), from whom they descend

whanaungatanga, in relation to a person, means-

(a) the purposeful carrying out of responsibilities based on obligations to whakapapa:

(b) the kinship that provides the foundations for reciprocal obligations and responsibilities to be met:

(c) the wider kinship ties that need to be protected and maintained to ensure the maintenance and protection of their sense of belonging, identity, and connection

Chief executive’s duties

• [81] These tikanga Māori principles are also incorporated into the chief executive’s statutory duties to recognise and provide a practical commitment to the principles of Te Tiriti o Waitangi.¹⁹ This requires the chief executive to develop strategic partnerships with iwi and Māori organisations in order to provide opportunities to delegate functions under the OTA to qualified people within those organisations.²⁰

Care and protection – custody and guardianship orders

• [82] If the Court is satisfied that a child or young person is in need of care or protection it may make a custody order placing the child or young person in the custody of (amongst others) Oranga Tamariki or a cultural social service.²¹ That person then has the role of providing day-to-day care for the child or young person.²² Subject to that, Oranga Tamariki or a cultural social service may place any child in their care or custody into the charge of any person they consider suitable to provide for that person’s care, custody and upbringing.²³

¹⁹ Sections 7 and 7AA.

²⁰ Sections 7AA(2)(c) and 396–402.

²¹ Section 101.

²² Section 104(1)(a).

²³ Section 362.

Plans and review of plans

• [83] Before making a custody order under s 101 the Court must obtain a plan for the child’s care.²⁴ The plan must (amongst other things): specify the objectives sought to be achieved for the child; contain details of any services to be provided for that child or for any person having care of the child; and 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.²⁵

• [84] The Registrar shall provide a copy of the plan to:

(a) every person entitled to appear and be heard on the application;

(b) any lay advocate, lawyer or other person representing the child to whom the application relates or a parent or guardian or other person usually having the care of the child;

(c) Oranga Tamariki; and

(d) any other person whom the Court considers has a proper interest in receiving a copy of the plan.²⁶

• [85] As noted above, the plans prepared for IHA’s care recorded that Waitomo would have a key role in IHA’s care, but Waitomo did not receive copies of the plan. Oranga Tamariki and Waitomo both submit that it should have. I agree with that submission, particularly in light of Waitomo’s role as a s 39 provider responsible for identifying, assessing, monitoring and supporting kaitiaki whānau, and its strategic partnership with Oranga Tamariki.

²⁴ Section 128.

²⁵ Section 130.

²⁶ Section 132.

• [86] Plans must be reviewed, revised and reported upon.²⁷ The person reviewing the plan must provide the Court with a report setting out the results of the review, together with a revised plan.²⁸

Participation in hearings

• [87] Section 166 of the OTA limits who may be present at a Family Court hearing concerning custody and guardianship of a child. A representative of an appropriate cultural social service such as Waitomo is entitled to be present.²⁹ However, unless they are also a party to the proceeding they are only able to make representations with the leave of the Court.³⁰

Lawyer for child

• [88] The Family Court is required to appoint a lawyer to represent a child in care and protection proceedings under the OTA.³¹ A lawyer for child must be served with all documents in the proceedings and may act on behalf of the child or young person in respect of any matter relating to his or her care in a residence. Section 9B of the Family Court Act 1980 sets out the role of lawyer for child more generally:³²

9B Role of lawyer appointed to represent child or young person in proceedings

(1) The role of a lawyer who is appointed to represent a child or young person in proceedings is to-

(a) act for the child or young person in the proceedings in a way that the lawyer considers promotes the welfare and best interests of the child or young person:

(b) ensure that any views expressed by the child or young person to the lawyer on matters affecting the child or young person and relevant to the proceedings are communicated to the court:

(c) assist the parties to reach agreement on the matters in dispute in the proceedings to the extent to which doing so is in the best interests of the child or young person:

²⁷ Sections 135–137.

²⁸ Section 135(1).

²⁹ Section 166(1)(g).

³⁰ Sections 169(1)(d) and 169(2)(d).

³¹ Section 159.

³² The role of lawyer for child is amenable to judicial review: DN & LN v Family Court at Auckland

[2020] NZHC 3165, at [12].

(d) provide advice to the child or young person, at a level commensurate with that child’s or young person’s level of understanding, about-

(i) any right of appeal against a decision of the court; and

(ii) the merits of pursuing any such appeal:

(e) undertake any other task required by or under any other Act.

(2) To facilitate the role set out in subsection (1)(b), the lawyer must meet with the child or young person and, if it is appropriate to do so, ascertain the child’s or young person’s views on matters affecting the child or young person relevant to the proceedings.

(3) However, subsection (2) does not apply if, because of exceptional circumstances, a Judge directs that it is inappropriate for the lawyer to meet with the child or young person.

• [89] In Dvorak v Yamamoto (decided in 2017 before the OTA amendments) Moore J held that:³³

[73] For the reasons expressed above I agree that the correct approach to be followed by lawyer for child is the “hybrid approach”. This reflects the wording of the amendment which must be taken to reflect Parliament’s intention in passing s 9B. It requires the lawyer not only to advise the Court of the child’s views but also mandates the undertaking of an independent evaluative assessment in promotion of the child’s welfare and best interests even if this exercise is contrary to the expressed wishes of the child.

• [90] However, the authors of Brookers Family Law note that it is not for lawyer for child to perform a quasi-judicial function:³⁴

Lawyer for the child is not fulfilling a quasi-judicial role (see M v M (above)) and it is undesirable that he or she should be seen in that light. Although appointed by the court, lawyer for the child is not the court's agent and has no greater duty to the court than any other counsel: J v J (above). The control comes from established professional standards, not from the court.

• [91] It is the role of lawyer for child in a proceeding to ensure that any views expressed by the child to the lawyer on matters affecting the child and relevant to the proceedings are communicated to the Court.³⁵ To facilitate that role the lawyer must meet with the child and, if it is appropriate to do so, ascertain the child’s views on

³³ Dvorak v Yamamoto [2017] NZHC 1591.

³⁴ Brookers Family Law — Child Law (online looseleaf ed, Brookers) at [NT7.4.06]; citing M v M FC Auckland FP004/998/800, 28 August 1987; and J v J FC Palmerston North FP054/241/87, 19 January 1989.

³⁵ Family Court Act 1980, s 9B(1)(b).

those matters. However, neither the Family Court Act 1980 nor any other statute prescribes where that meeting should take place.

• [92] The New Zealand Law Society Family Law Section has promulgated Lawyer for the Child Best Practice Guidelines – Acting for Children under the Care of Children Act 2004 and the Oranga Tamariki Act 1989 (NZLS guidelines). The New Zealand Law Society Board ratified the NZLS guidelines on 23 February 2018. The NZLS guidelines at 6.5 state:³⁶

The timing and venue for such a meeting, and any further meetings, should be at the discretion of the lawyer. However, the lawyer shall meet with the child at a time which ensures that the child’s views are up to date at the time of the hearing so that they can be taken into account by the Court.

• [93] However, these guidelines are not a source of legal powers, and any discretion will be subject to relevant statutory requirements.

• [94] The NZLS guidelines were prepared and ratified prior to the amendments to the OTA came into effect. The NZLS guidelines are yet to be updated to reflect those amendments, including the fundamental importance of mana tamaiti (tamariki), whakapapa and whanaungatanga; and the express duty on the chief executive of Oranga Tamariki to recognise and provide a practical commitment to the principles of Te Tiriti of Waitangi, including by entering into strategic partnerships with Māori with a view to delegation of homes. I understood Ms Davis to say that this is underway.

The Family Court and Oranga Tamariki

• [95] The “different, yet complementary roles” of the Family Court and Oranga Tamariki are also well established.³⁷ They were recognised by the Court of Appeal in C v Ministry of Social Development.³⁸ The Family Court is to determine disputes concerning custody, including disputes to which Oranga Tamariki is a party. However, where Oranga Tamariki has lawful custody and guardianship of a child, the Family Court does not interfere with the day-to-day decision making of the chief executive or

³⁶ The New Zealand Law Society – Family Law Section Lawyer for Child Best Practise Guidelines

(February 2018).

³⁷ C v Ministry of Social Development [2008] NZCA 169, (2008) 27 FRNZ 383, at [37].

³⁸ At [37]–[41].

their delegates.³⁹ The day-to-day care of children in the custody of the chief executive is an executive function, not a judicial function. The Family Court will generally defer to the chief executive who effectively becomes a surrogate upon appointment as custodian.⁴⁰ The Family Court may intervene if there is reason for concern that the chief executive is not discharging the task of safeguarding the child’s interests, but even then only to the minimum extent practicable.⁴¹

• [96] In terms of process, the Family Court Rules 2002 provide that a Judge may give any directions he or she thinks proper for regulating the Family Court’s business.⁴² But the Family Court must not follow a practice that is inconsistent with the rules or a family law Act (including the OTA).⁴³ Moreover, the purpose of a judicial conference is to enable a Judge to make any orders and give any directions that the Judge considers “are consistent with the purpose and spirit of the family law Act under which the proceedings arise”.⁴⁴ Any direction that is inconsistent with a family law Act is vulnerable to judicial review.

Natural Justice – Waitomo needed to be heard

• [97] Waitomo says the Family Court breached the principles of natural justice because it made the directions without providing Waitomo with an opportunity to be heard; and prior to hearing and determining Waitomo’s joinder application.

Legal principles

• [98] It is well established that a decision maker should not make a decision affecting the rights and interests of a person without providing that person with an opportunity to be heard.⁴⁵ The particular requirements of natural justice in each case will vary with context. Relevant factors include the nature of the decision and the decision maker, and the statutory setting within which the decision is made.⁴⁶

³⁹ At [39].

⁴⁰ At [40].

⁴¹ At [41].

⁴² Family Court Rules 2002, r 16(1).

⁴³ Rule 13(1).

⁴⁴ Rule 175(2)(a).

⁴⁵ Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA), at 141 per Cooke J.

46. Daganayasi v Minister of Immigration; Lab Tests Auckland Limited v Auckland District Health Board [2008] NZCA 385, at [57]–[58] per Arnold and Ellen France JJ.

• [99] Natural justice is ultimately about fairness. The more serious the consequences of a decision, the more strictly principles of natural justice are applied.⁴⁷ At the very least, natural justice requires notice of the subject matter of the hearing and advance notice of the risk of a decision adverse to a person’s interests.⁴⁸

Discussion

• [100] I am satisfied that that the Family Court’s direction that lawyer for child meet IHA in his home environment would significantly undermine Waitomo’s interests as a s 396 care provider. It is fundamental to Waitomo’s contractual arrangements and statutory, Treaty-based partnership with Oranga Tamariki that Waitomo (not Oranga Tamariki) would assess, approve, monitor and support kaitiaki whānau. As such only Waitomo would visit kaitiaki whānau at their home. Mr Piripi confirms that this arrangement is in accordance with tikanga Māori principles of mana tamaiti, whakapapa and whanaungatanga.

• [101] Amongst other things, this arrangement helps Waitomo attract suitable kaitiaki whānau. Ms Murray says whānau are less likely to agree to be caregivers if they have to deal directly with Government officials, the Courts, lawyers and other professionals. Mr Pirirpi agrees. It is an essential part of Waitomo’s role to bridge a gap between kaitiaki whānau and these other parties.

• [102] The primary purpose of Waitomo’s joinder application was to enable it to oppose directions that lawyer for child meet IHA and kaitiaki whānau at home. Waitomo made its joinder application before it had all relevant material, but its substantive concerns and its wish to be heard were clear. In these circumstances I agree that natural justice required that Waitomo have an opportunity to be heard in relation to the directions before they were made.

Did Waitomo decline an opportunity to be heard?

• [103] The transcript of the conference shows that the Family Court and counsel for Oranga Tamariki anticipated Waitomo would be present at the judicial conference on

⁴⁷ Murdoch v New Zealand Milk Board [1982] 2 NZLR 108 (HC), at 115.

⁴⁸ Carroll v Coroner’s Court at Auckland [2013] NZHC 906, [2013] NZAR 650, at [36].

14 January 2021. Other evidence suggests that Waitomo was aware of the conference but decided not to attend. I have considered whether in these circumstances Waitomo in fact had an opportunity to be heard but declined that opportunity. However, I do not think that would be the correct analysis for the following reasons.

• [104] First, Waitomo may have known of the 14 January 2021 conference, but it was not formally notified or invited to attend. The joinder application was not scheduled to be dealt with on 14 January 2021, and it was not. Importantly, Waitomo was not notified that the directions might be made in Waitomo’s absence if it did not attend.

• [105] Ms Murray explains she did not wish to attend informally, and without a right to participate. She explains that on previous occasions Waitomo has tried to participate in hearings concerning Te Hiku people but has been turned away by the Family Court or Court officials. Ms Murray says that on 14 January 2021 she did not wish to jeopardise the Court’s view of Waitomo when it had not yet been joined as a party. As noted above, Ms Murray was not on notice that the directions she clearly signalled Waitomo wished to oppose would be made in Waitomo’s absence.

• [106] Secondly, as at 14 January 2021 Waitomo did not have the documents it needed in order to be heard in relation to the proposed directions. Those documents would include: previous Family Court minutes; lawyer for child’s reports; the care plans; and reviews of care plans. In its joinder application Waitomo sought leave to amend the application and to file further affidavit evidence once it had received these documents.

• [107] It appears that Waitomo had not received these documents because it was not already a party. The transcript reveals this is why Oranga Tamariki did not provide Waitomo with the 14 December 2020 Minute. The 14 January 2021 Minute records that lawyer for child and the Family Court had concerns that Waitomo may have had access to documents to which “they are not strictly entitled”.⁴⁹ However, natural justice required Waitomo as a s 396 provider to have those documents in order to understand why the directions were being sought, and to properly address the Family Court before the directions were made. As I have already noted, as a s 396 provider

⁴⁹ 14 January 2021 Minute, above n 3, at [13].

in a strategic partnership with Oranga Tamariki Waitomo should already have received the care plans in any event.⁵⁰

• [108] For all of these reasons I am satisfied that the Family Court made the directions without Waitomo having an opportunity to be heard, and therefore in breach of the principles of natural justice.

• [109] In this case it would have been in accordance with natural justice for the Family Court to have dealt with Waitomo’s joinder application before making the directions. However, I agree with counsel for Oranga Tamariki that joinder may not always be required in order for s 396 providers to be heard, because s 396 providers have the right to attend Court and, with the Court’s leave, to make representations.⁵¹ In this regard I note that when Judge King subsequently ordered that Waitomo be added as a party she made the following observations:⁵²

[10] [Counsel for Waitomo] has indicated the concern of her client is the ability to make representations provided for, pursuant to s 169. I accept that a cultural social service is not specified in [s 169(1)] as it is in s 166. However, as one of the resident judges for the [Taitokerau] circuit, I would have thought the Court will readily grant leave for a representative from a cultural social service that is contracted to provide for the care of a young person under a s 101 custody order to make representations at court. That would be in keeping with the principles and purposes of the Oranga Tamariki Act.

• [110] I respectfully agree. The OTA requires that any decision whether to grant leave to a s 396 cultural social service to make representations is informed by the principles of Te Tiriti o Waitangi and the chief executive’s statutory duty to provide a practical commitment to those principles, including by developing strategic partnerships with Māori organisations such as that which have been developed with Waitomo. This leads to the next ground of review.

Failure to consider relevant considerations

• [111] Waitomo submits that the Family Court made the directions without considering the following relevant considerations:

⁵⁰ Oranga Tamariki Act, s 132(1).

⁵¹ Sections 166 and 169.

52. Chief Executive of Oranga Tamariki v [TTTB] FC Kaitaia FAM-2018-029-17, 3 May 2021 [Minute of Judge].

(a) IHA’s rights of mana tamaiti and Waitomo’s obligations to protect his mana.

(b) IHA’s rights of whanaungatanga and Waitomo’s obligations to protect those rights.

(c) The implications of Waitomo’s Te Tiriti-based statutory partnership with Oranga Tamariki. Waitomo says this partnership requires active protection, utmost good faith and an acknowledgment the rangatiratanga of IHA’s whānau and hapū.

• [112] Counsel for Waitomo submitted that even without the 2017 amendments incorporating principles of tikanga Māori and Te Tiriti o Waitangi into the OTA, in the present case it would have been appropriate to interpret and apply the OTA with reference to those principles. In support of that submission I note that since this matter was heard the Supreme Court has confirmed that there is a presumption that statutes are to be interpreted consistently with Te Tiriti as far as possible,⁵³ and that tikanga will need to be considered where it is relevant to the circumstances of the case.⁵⁴

• [113] In any event, tikanga Māori and Te Tiriti principles have been expressly incorporated into the OTA. I accept counsel’s submission that in deciding whether to make the direction that tikanga principles such as mana tamaiti (tamariki), whanaungatanga and whakapapa, and Waitomo and Oranga Tamariki’s Te Tiriti-based statutory partnership were mandatory considerations, not merely permissible considerations that the Family Court should have taken into account. A consideration will be mandatory where the relevant statute expressly or impliedly identifies it as a consideration to be taken into account.⁵⁵ A core purpose of the OTA is to recognise these tikanga principles and to provide a practical commitment to Te Tiriti principles;⁵⁶ and the Family Court and others must be guided by these principles when exercising powers or the OTA in determining the welfare and best interests of the child.⁵⁷

⁵³ Ellis v R [2022] NZSC 114, at [98] per Glazebrook J.

⁵⁴ At [118] per Glazebrook J.

⁵⁵ CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 182.

⁵⁶ Oranga Tamariki Act, s 4(1)(f) and (g).

⁵⁷ Sections 5 and 13.

• [114] It was evident from the material before the Family Court on 14 January 2021 that IHA was in the care of whānau caregivers who whakapapa to him. Also, that Waitomo is a s 396 cultural social service provider responsible for approving, supporting and monitoring IHA’s kaitiaki whānau. This information was set out in the s 135 reports and Waitomo’s joinder application.

• [115] Waitomo’s evidence in this proceeding explains what those principles mean according to tikanga in Te Hiku, and what this means for IHA in practice. Mr Piripi says it is essential to improving outcomes for tamariki Māori that their care is provided in accordance with tikanga. Mr Piripi confirms that Waitomo’s own whakapapa enable it to connect with whānau and arrange care in situations where other statement agencies could not. He explains the impact that a Court-directed visit by a stranger to the home would have on mana tamaiti and whanaungatanga.⁵⁸

• [116] In many respects the second ground of review arises as a result of the first. If Waitomo had been heard before the directions were made it would likely have advised the Family Court of the relevant tikanga principles, and Te Tiriti-based nature of its partnership with Oranga Tamariki. Waitomo could have explained, as it did in this proceeding, that whakapapa and whanaungatanga are at the core of what Waitomo does, and what this means in the context of care for IHA. However, when the Family Court made the directions it failed to consider these mandatory relevant considerations.

The Family Court misdirected itself as to the law

• [117] The Family Court did not provide detailed reasons for its direction that lawyer for child be provided with the full names and address of IHA’s kaitiaki whānau. However, it is clear from the direction itself that the Family Court considered this was necessary in order for lawyer for child to “fulfil her role as counsel for the child and meet with him in his home environment and report to the Court so that the review can proceed”. The transcript of the 14 January 2021 conference also reveals that the Family Court did not consider the review of IHA’s care plan could proceed until lawyer for child had met with IHA and his kaitiaki whānau at their home and reported back.

⁵⁸ See [40] above.

• [118] Waitomo says that when a child is in the care of kaitiaki whānau being monitored and supported by a cultural social service such as Waitomo it is not the role of lawyers for children to meet with the child in their home environment or to meet with kaitiaki whānau or to report back on those matters. That is the role of the cultural social service, in this case Waitomo. Waitomo says the Family Court has misunderstood the respective roles and statutory functions of lawyer for child, Waitomo and Oranga Tamariki. In particular, Waitomo submits the Family Court misunderstood that:

(a) while it is lawyer for child’s function to meet with the child, ascertain his or her views and report them to the Court, it is not a legal requirement, nor otherwise appropriate or necessary, for the lawyer for child to visit IHA at home;

(b) it is not necessary or appropriate for the lawyer for child to make any contact with IHA’s caregivers in light of the Te Tiriti-based statutory partnership between Oranga Tamariki and Waitomo, unless Waitomo consents;

(c) it is not lawyer for child’s role to be an agent of the Court or to provide evidence to the Court beyond the information conveyed to the lawyer for child by IHA or otherwise available in existing reports and other documents; and

(d) if lawyer for child has any concerns or questions about the placement of IHA with Waitomo’s caregivers, those matters should be raised with Waitomo and Oranga Tamariki.

• [119] In the circumstances of this case, Oranga Tamariki and counsel to assist support Waitomo’s submissions.

• [120] As I have already noted, Waitomo is responsible for recruiting, assessing, monitoring and supporting kaitiaki whānau. This is set out in the service specifications

for s 396 providers, which are embedded in Waitomo’s contractual arrangements with Oranga Tamariki.

• [121] Waitomo has carried out its role in this case. Waitomo has assessed IHA’s caregivers. Waitomo regularly meets with IHA in his home environment. Waitomo reports back to Oranga Tamariki. Waitomo does these things in accordance with its partnership with Oranga Tamariki, the OTA and tikanga.

• [122] Lawyer for child has an important job to do. She is to meet IHA and to ensure that anything expressed by him on relevant matters affecting him are communicated to the Court. Waitomo’s evidence is that it is happy to facilitate that. It will arrange for lawyer for child to meet with IHA at Waitomo’s offices, or elsewhere. Just not at kaitiaki whānau’s home. Ms Murray and Ms Herbert also make clear that if lawyer for child has any concerns about matters which need to be discussed with kaitiaki whānau then they will facilitate those communications.

• [123] In terms of the respective roles of the different parties in the present case, I consider that:

(a) It is lawyer for child’s role to ensure that any views expressed to her by IHA on matters affecting him and relevant to the proceeding are communicated to the Court. To facilitate that role lawyer for child must meet with IHA. ⁵⁹ There is nothing in the OTA, or the Family Court Act 1980 or the Family Court Rules 2002 requiring that meeting to take place in IHA’s home environment. That meeting does not need to take place in IHA’s home environment.

(b) It is Oranga Tamariki’s role to determine the suitability of IHA’s placement.⁶⁰ Oranga Tamariki carries out that role in conjunction with Waitomo in accordance with Te Tiriti-based statutory partnership between them.

⁵⁹ Family Court Act 1980, ss 9B(1)(b) and (2).

⁶⁰ Oranga Tamariki Act, s 362.

(c) Within that partnership it is Waitomo’s role to assess, monitor and support kaitiaki whānau. An important aspect of that partnership is that only Waitomo deal with kaitiaki whānau and visit their home.

(d) It is neither lawyer for child nor the Court’s role to assess the suitability of placements, or to supervise or monitor kaitiaki whānau.

• [124] As such, I accept Waitomo’s submission that in making the direction the Family Court misunderstood the respective statutory functions and responsibilities of each of lawyer for child, Waitomo and Oranga Tamariki. In particular, lawyer for child’s role did not require her to meet IHA in his home environment or to meet kaitiaki whānau at all. Any concerns lawyer for child had that needed to be addressed with IHA’s caregivers could and should be addressed with Waitomo in the first instance.

• [125] This is not to say a Court would not have other means of gathering further information if it was not satisfied with the information provided. At the judicial conferences on 14 December 2020 and 14 January 2021, Oranga Tamariki had advised the Family Court that:

(a) IHA was available to meet with lawyer for child at Waitomo’s premises;

(b) Waitomo was an approved s 396 provider;

(c) Waitomo was visiting IHA at home each week; and

(d) Oranga Tamariki’s social worker had met with IHA and he was “relaxed, open and ready to share” and said he liked his new home.

• [126] If the Family Court required further information it could have required Waitomo to attend Court to answer questions⁶¹ and/or required Oranga Tamariki to furnish a further report and revised plan addressing any particular issues of concern.⁶² Once again I observe that in the present case this would appear to have been necessary

⁶¹ Section 137(1)(d).

⁶² Section 137(1)(e).

if the Family Court had heard from Waitomo in the first place. In practical terms, this may not be necessary if s 396 providers are given leave to make representations.

Unreasonableness

• [127] Waitomo’s final challenge is that in making the direction the Family Court acted unreasonably by:

(a) failing to have proper regard for and acting inconsistently with:

(i) the statutory scheme and purpose of the OTA, including the recognition of mana tamaiti (tamariki), whakapapa and whanaungatanga; and

(ii) the Treaty-based statutory partnership between Oranga Tamariki and Waitomo, including the obligation of Oranga Tamariki under s 7AA of the OTA to develop strategic partnerships with iwi and Māori organisations with the aim of improving outcomes for tamariki Māori who come to the attention of Oranga Tamariki;

(b) going beyond what is reasonably required for the review of the plan for IHA’s care; and

(c) possibly placing the safety of IHA’s caregivers at risk.

• [128] Counsel for Waitomo, Mr Ferguson, submits that Wednesbury unreasonableness is no longer the sole standard of a reasonableness review.⁶³ Mr Ferguson submits that unreasonableness has shades of meaning on a continuum between Wednesbury and “anxious or heightened scrutiny”.⁶⁴ He also invokes the concept of a variable intensity review.

⁶³ Associated Provincial Picture House Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223 (CA).

64. Kim v Minister of Justice [2019] NZCA 209, [2019] 3 NZLR 173 at [45] as cited in Phillip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington 2021) at 1076, n 100.

• [129] Courts in New Zealand have taken different positions on the issue of variable intensity of review. Justice Palmer has held that decisions about climate change deserve heightened scrutiny, depending on the context.⁶⁵ On the other hand, Venning J subsequently found that variable intensity of review “is not subscribed to by all”.⁶⁶ He held that “the focus should rather be on whether the decision maker has acted in accordance with the power in issue and with any other requirements imposed by relevant legislation”.⁶⁷ In Students for Climate Solutions Incorporated v The Minister of Energy and Resources Cooke J considered that the concept has never firmly taken root in New Zealand.⁶⁸

• [130] In Kim v Minister of Justice¸ although the standard of review was not in issue on appeal, the Court of Appeal was satisfied that the appropriate standard of review was one of heightened scrutiny.⁶⁹ However, in allowing the appeal the Supreme Court commented that:⁷⁰

... as the standard of review is not before us, we are not to be taken as endorsing the heightened scrutiny test. Whether, and if so when, heightened scrutiny of the reasonableness of a decision is appropriate will have to be considered in a case where the issue arises and has been fully argued.

• [131] This is not such a case. As I have noted, Waitomo had no active contradictor and I did not hear competing arguments concerning the standard of review. As such it is not appropriate for me to consider the concept of variable intensity review.

• [132] In any event, Waitomo’s essential submissions in support of the unreasonableness ground of review are the same as those it made in support of the other grounds of review. Waitomo says that it was unreasonable for the Family Court to make the directions without considering the purposes and principles of the OTA, including tikanga Māori principles, or Waitomo’s role in providing and supporting kaitiaki whānau who whakapapa to tamariki Māori. Waitomo also submits it was

65. Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 3228; [2021] 3 NZLR 280 (HC) at [51].

⁶⁶ All Board Aotearoa Inc v Auckland Transport [2022] NZHC 1620 at [87].

⁶⁷ At [87].

68. Students for Climate Solutions Incorporated v The Minister of Energy and Resources [2022] NZHC 2116, at [42].

⁶⁹ Kim v Minister of Justice, above n 64, at [45]–[47].

⁷⁰ Minster of Justice v Kim [2021] NZSC 57, [2021] 1 NZLR 338, at [51].

unreasonable for the Family Court not to have given Waitomo an opportunity to receive relevant information, and to have an opportunity to respond to it.

• [133] I have already accepted those submissions in the course of upholding the other grounds of review. It is therefore unnecessary for me to consider this ground of review. In Students for Climate Solutions Incorporated v The Minister of Energy and Resources Cooke J described unreasonableness as “a residual ground of review”, noting that “the other more precise grounds of review properly address the vast majority of successful judicial review challenges”.⁷¹

Relief

• [134] Waitomo seeks declarations that the directions were unlawful and an order setting aside or quashing them. I am satisfied that the directions made by the Family Court were unlawful and should be quashed.

• [135] Waitomo seeks additional declarations setting out several matters including the roles of lawyer for child, Oranga Tamariki, and s 396 providers.

• [136] Oranga Tamariki supports the additional declaratory relief but suggests amendments to the declarations sought. Counsel for the Family Court also proposed a minor amendment with which Ms Davis agreed. The suggested amendments are slightly narrower and recognise that any assessment of the well-being and best interests of a child or young person will always be highly fact specific.

• [137] I consider that the suggested amendments proposed by Oranga Tamariki and the Family Court are appropriate, particularly in the absence of an effective contradictor.⁷²

• [138] In conclusion, and for completeness, I note that the material before me shows that the Family Court and others involved were properly and genuinely focussed on IHA’s well-being and best interests. As this case demonstrates, the 2017 amendments

71. Students for Climate Solutions Incorporated v The Minister of Energy and Resources, above n 67, at [84].

⁷² Canterbury Regional Council v Attorney-General [2009] NZHC 1027; [2009] NZAR 611, at [24] and [53], citing

Auckland City Council v Attorney-General [1994] NZHC 1170; [1995] 1 NZLR 219.

to the OTA are significant and implementing those amendments will require practical and procedural change. Counsel advised that the Family Law Section of the New Zealand Law Society has been committed to upskilling practitioners in relation to these amendments, which include the strategic partnerships between Oranga Tamariki and s 396 providers. As noted above I also understand that work is underway to update the NZLS guidelines.⁷³ That would be a helpful development.

Result

• [139] I make the following orders:

(a) I declare that the directions made by the Family Court as set out at [17] of the Family Court Minute of 14 January 2021 were unlawful.

(b) I order that the directions made by the Family Court as set out at [17] of the Family Court Minute of 14 January 2021 be quashed.

(c) I declare that:

(i) it is lawyer for child’s function to meet with IHA, ascertain his views and report them to the Court, but it was not a legal requirement, nor otherwise established to be appropriate or necessary, for lawyer for child to visit IHA at home in this case;

(ii) it was not established to be necessary for the lawyer for child to make any contact with IHA’s caregivers in this case;

(iii) it is not necessary for the lawyer for child to make any contact with IHA’s caregivers in light of the Te Tiriti-based statutory partnership between Oranga Tamariki and Waitomo, unless Waitomo consents;

⁷³ At [94].

(iv) if lawyer for child has any concerns or questions about the placement of IHA with Waitomo’s caregivers, those matters should first be raised with Waitomo and Oranga Tamariki, and not the caregivers themselves; and

(v) in proceedings in the Family Court concerning children in the day-to-day care of kaitiaki whānau, s 396 providers and kaitiaki whānau should be given the opportunity to be heard and, if appropriate and necessary, to have access to the Court minutes and other relevant documents on the Court file that concern children in their day-to-day care.

Costs

• [140] In accordance with the principle set out by the Court of Appeal in Coroner’s Court v Newton, I understand there is no issue as to costs.⁷⁴ If I am wrong about that, counsel for Waitomo is to file a memorandum within 10 working days.

• [141] I am grateful to all counsel for their helpful submissions.

Robinson J

⁷⁴ Coroner’s Court v Newton [2006] NZAR 312, (2005) 17 PRNZ 907 (CA).