Taken By The State

Judge: courts don’t get all facts before ‘uplifts’

A Family Court judge says he and colleagues do not have all the evidence in "about 95 percent" of cases when remotely considering urgent "without notice" warrants for police to uplift children from parents.

The admission is in a court record seen by Newsroom and conflicts with claims by judges and lawyers supporting the court that warrants are only issued with great caution once full facts of a case are known.

The judge was referring to applications made under the "eDuty" electronic system where one judge nationally can approve warrants remotely - a process introduced to speed up the application process where one parent views their cause as urgent.

Justice Minister Amy Adams told Newsroom on Tuesday she would expect judges would decline to issue warrants if they felt they had insufficient information before them.

The claim by the judge that that was the case in the vast majority of the "eDuty" applications will fan concerns by some parents and lawyers caught up in the system. They say police are being used to take children from their other parent's home or even schools and return them under parenting orders from the court despite no threat or risk to the child.

Newsroom revealed two videos this week of police calling at houses without notice to the parent to execute warrants against children who clearly did not want to go back to their other parent and were in evident distress while being removed.

Legal experts said the manner of the uplifts was not in the interests of the children concerned, which is a central tenet of the Care of Children Act, and the seizures would likely traumatise the children.

Backers of the system say such uplifts occur only in extreme cases and when the child is at imminent risk. But in the five cases Newsroom highlighted, plus other cases this website's journalists have examined, the execution of warrants without notice did not involve any such risk. 

Affected parents have complained they do not have a way of challenging the without-notice warrant applications. They say a duty judge for the whole country considering electronic applications without the facts or context is at times being hurried into sending in the police.

In the transcript of the case obtained by Newsroom, an exchange between a lawyer and judge raised the inadequate scrutiny of uplift warrants.

The lawyer for one party said it seemed unlikely a different judge had had all the evidence to make a decision on a without-notice application.

The presiding judge responded that the same issue with evidence would apply in about 95 percent of without-notice applications dealt with through the “eDuty” electronic system.

Wellington Family Law partner Caroline Hannan said there would be some cases where judges did not have all the evidence in front of them when making a decision.

“What you’re talking about is a situation where there's an existing court order, potentially an interim one, in the midst of possibly quite large proceedings, possibly quite large amounts of material, and the judge that’s dealing with the warrant application is a duty judge in a different district and all they’ve got in front of them is the without-notice application.”

However, Hannan said there were “warning bells” that judges would pick up on in particularly complex cases, such as the year in which proceedings were first filed.

“It is a matter of last resort, the legislation says that, and we know that it’s distressing and awful."

"I do think they exercise caution in those situations: if they see that it's in the middle of other proceedings, they will generally in my experience say, ‘This needs to be sent back to the court of origin and a local judge needs to hear this’.”

Lawyers filing without-notice applications were also required to certify that they had “made reasonable enquiries of our client as to all the facts, whether they’re advantageous to the party or not”.

Hannan said most lawyers did not encourage their clients to apply for warrants, given the effect they could have on children.

“It is a matter of last resort, the legislation says that, and we know that it’s distressing and awful.

“We talk people out of warrants more often than not, and we generally often use a sort of hybrid where we say, ‘Look we will apply for a warrant’ and the parents sort it out, because they say we don’t want to put our kids through this.”

Minister: judges mindful of impact

Justice Minister Amy Adams told Newsroom the judge’s remarks were an issue for the Family Court, but she believed the judiciary in general was “very mindful of the serious nature of these uplift orders”.

“They are a very traumatic instance as you’ve seen, they are only used in the most desperate of circumstances where everything else has failed and parents have refused to comply with their obligations.

“No-one wants to see that happen and judges when they make that decision...I think have to be confident that they’ve got enough information to make their decisions.”

“Only a judge can determine whether they’ve seen enough information, and that’s absolutely their call.”

Adams said the judiciary had not raised any concerns about their ability to examine evidence before issuing the orders, and they used “a great degree of caution” before making a decision.

“Only a judge can determine whether they’ve seen enough information, and that’s absolutely their call.”

She would be open to legislative change if required, but said that had not been raised with her.

A spokeswoman for Principal Family Court Judge Laurence Ryan declined to comment to Newsroom about whether there was enough scrutiny of evidence before warrants were issued.

In a statement provided to media on Tuesday, Ryan said disputes involving children were often upsetting but Family Court judges had a duty to ensure court orders made in the interests of a child’s welfare and best interests are complied with”.

“Not enforcing breaches of court orders would not only create more risk and uncertainty in the long run to children at the centre of parental disputes but reward non-compliance with the law.”

Judges had to make decisions on the information and evidence placed before them, in some cases where time was of the essence.

Becroft writes to officials

Children’s Commissioner Andrew Becroft said police and Oranga Tamariki, the Ministry for Vulnerable Children, should develop a protocol for the management of warrants to uplift children and provide resources and guidance for staff.

“Some staff will already be aware of how to do this well, and it would be easy enough to include this in professional development for those who are less experienced, if it is not already covered.”

Agencies needed to discuss how to approach uplifts “in a child-centred way”, taking into account their age, who was involved, and whatever was known about the child’s history.

“The timing is an important aspect to consider, so doing it during daylight hours rather than at bedtime. And trying to have a calm approach to the situation, so sitting down for a cup of tea with the household and talking it through, encouraging the parent to bring the child out to the car, and making sure they have a favourite toy.”

Becroft said he would write to Police Commissioner Mike Bush and Oranga Tamariki chief executive Grainne Moss offering his office’s support with developing protocols.


Find Newsroom's Taken By The State series here
* See the original investigation
* Read responses by politicians Jacinda Ardern, Anne Tolley and Paula Bennett, and the Children's Commissioner
* Opinion: Retired Family Court judge John Adams
* Opinion: Child psychology expert Nicola Atwool

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