Reserved decision — guardianship — custody — care and protection — disposition — Oranga Tamariki Act 1989, ss 4A, 5, 7, 7AA, 14, 49, 67, 68, 70, 72, 73, 78, 83, 84, 86, 87, 91, 93, 94, 96, 98, 101, 102, 103, 104, 113, 110, 128, 129, 130, 131, 178, 186, 187 & 200 — Care of Children Act 2004 — District Courts Act 2016, s 4 — Family Courts Act 1980, s 16 — Family Court Rules 2002, rr 90 & 90A — L v The Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki [2017] NZHC 3008 — Chief Executive of Oranga Tamariki—Ministry for Children v TS [2021] NZFC 3817 — Chief Executive of the Ministry of Social Development v DR [2016] NZHC 24 — Menzies v Ministry of Social Development FC Upper Hutt FAM-2000-055-47, 24 June 2010 — J v Ministry of Social Development FC Wellington FAM-2001-085-1727, 23 September 2008 — GAHD v Chief Executive of Child Youth and Family Services Whangarei FC Tauranga FAM-2008-088-637, 2 June 2010 — LC v Ministry of Social Development [2008] NZCA 169, [2008] NZFLR 828 — Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 — Kameta v Nicholas [2012] NZCA 350 — Mihinui – Maketu A100 (2007) 11 Waiariki Appellate MB 237 (11 AP 230) — Re GM [2019] NZFLR 291 — Chief Executive of Oranga Tamariki v BH [2021] NZFC 210 (15 January 2021) — Waitangi Tribunal He Pāharakeke, He Rito Whakakīkingi Whāuarua Oranga Tamariki Urgent Enquiry (Wai 2915, 2021). The case concerned a four-year-old child who had been declared in need of care and protection. The child had been living with Pakeha caregivers for most of her life. The Chief Executive submitted a plan recommending a final custody order in his favour, stating that disrupting the child's secure attachment with the caregivers would be traumatic, and the biological parents would require intensive support to adequately support the child. The mother sought to resume care of the child and was supported by the lawyer for the child, who highlighted the ongoing failure to observe statutory principles in favour of placing a child in the care of their whanau. In earlier proceedings, the presiding Judge had granted an application for a declaration of care and protection, but rejected OT's recommendation that there was no possibility of the child's return to her mother. The Court had expressed concern with the child's placement outside of her whanau, hapu and iwi, when all whanau options had not been sufficiently explored. The repeated failure to schedule court events was also held to have prejudiced the child, resulting in an extended passage of time without a final determination of where she would be placed. The Court addressed the application of s 73 of the Oranga Tamariki Act and the 2019 amendments, stating that the new wording constrains the discretion to make a care and protection order in the same manner it previously constrained the discretion to make a declaration. It was concluded that the amended s 73 would not apply to the disposition phase of proceedings commenced (but not completed) before 1 July 2019. As such, this section could not be used to oppose the making of a s 101 custody order. In considering an interim custody order, the Court had regard to the practical implementation of care and protection for the child as well as factors relevant to the child's well-being and best interests. The mother was held to be able to meet the child's care and protection needs. While the child had formed a connection to the caregivers, the Court held that her cultural identity would benefit from care by her whanau, hapu and iwi. The Court made an interim custody order in favour of the Chief Executive to maintain the child's placement with her caregivers while a transition of care to her whanau was made. A comprehensive plan for this transition of care was directed, with input needed from experts in child development and whanau support working within a kaupapa Māori framework. Judgment Date: 9 July 2021. * * * Note: names have been changed to comply with legal requirements. * * *