Back Home 5 News 5 Tips for acting for whānau and non-kin caregivers in the Family Court

Tips for acting for whānau and non-kin caregivers in the Family Court

12 Apr 2024

| Author: Sonya Singh

If you are asked to act for whānau or non-kin caregivers, especially when Oranga Tamariki (OT) is involved, the request is usually made in one of two ways.

The first goes like this:

“I have been looking after my moko for about a year and OT says it wants me to be the permanent caregiver. They told me to find a lawyer.”

As a lawyer, you would ask for details and then contact the social worker for further information. OT’s websites can be helpful but some sites are easier to use than others. Acting for a caregiver in this situation involves:

■ being familiar with the Oranga Tamariki Act 1989 and OT processes;

■ getting information on why the child is in the care of a social worker;

■ talking to the lawyer for child;

■ understanding the family dynamics (if it is a whānau caregiver);

■ confirming that OT will cover the legal costs and then discussing your estimated fee, making it clear that court proceedings can be unpredictable and how your best estimate could go awry.

You then would meet with the client, give advice based on the information you have, finalise instructions, go through the client’s evidence, file the relevant applications, appear in court and follow the process to obtaining interim or final orders for them.

If the matter is straightforward, you will still need to ensure any proposed discharge of OT orders and any new orders meet the principles of the OT (ss 4A, 5 and 13) and COCA Act (s 5). It is important that contact for parents is set up or addressed appropriately.

The lawyer needs to scrutinise the post-care support services plan. This document is important if issues arise in relation to the reason for the child being in care in the first place and to ensure legal costs are covered for any future legal proceedings against the caregiver (most commonly from a parent or another whānau member who is seeking care or a different type of contact with the child in the future).

The second (and increasingly common) type of request might come like this:

“I have been told by the social worker that I need to get a court order for my moko who has been with me for a few weeks. This needs to be done quickly. OT says it will support me with legal fees. Can you help?”

In this situation, you need to be able to drop your other work as the matter usually requires some urgency and the steps set out above will be more truncated.

If there are care and protection concerns (from non-accidental injuries to serious neglect), advise the client that it is not necessarily in his/her interests to be the safety-net caregiver for the child. There are likely to be health issues, contact issues and difficult family situations for the child and caregiver if there isn’t any formal intervention or process to protect the child. The lawyer needs to be alert to this.

Negotiating fees

Depending on the facts and urgency of the situation, the application could be made on a without-notice basis. The fees are likely to increase quickly and complexities surrounding the court process may become obvious soon thereafter. It is important that the lawyer can properly negotiate his/her legal fees for the proceeding. As per the OT guidelines, this is usually at the lawyer’s legal aid rate or lawyer for child rate and for up to 10 hours. The negotiation should be on a case-by-case basis with the respective OT site.

In both scenarios, it can be tricky to negotiate your fees. You need to be clear that the caregiver is your client, but equally clear that OT needs to pay your fair and reasonable fees. It is not fair to expect you to deliver a competent service to a caregiver with constraints in place.

Be clear about your rate and the number of hours you will initially need, and review this at each step of the proceedings, getting confirmation of your potential fees. If this is slow, at least outline what your fee may be. You may want to write something like this to the site manager: “Having reviewed the information provided about this child and family, I estimate my fees for advising my client, preparing the application and affidavit, organising service, reporting back, liaising with lawyer for child, the social worker, other counsel and attending court to the first JC/DC being $…. an hour for the initial 10 hours. (it is important to vary the hours required depending on the information you get). After this, depending on further directions made, I envisage the fees (if straightforward) may require a further 5-7 hours to formal proof (including reviewing any further plans, any final meetings that may be required, reviewing the post-care support services plan). If the matter is defended, then I will review my estimate and the hours required and send interim invoices to a final hearing. As you will appreciate, it is difficult to estimate the time required this early in the process.” ■

Sonya Singh is an Auckland barrister working out of Halcyon Chambers. She was recently named as a Family Court associate and is a member of The Law Association’s Family Law committee

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