New Zealand Law Society - Guidelines & Protocol

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CYPTF Act s389 Payments to Caregivers


This section describes payment of legal expenses to caregivers once care of a child or young person has transferred from Children, Young Persons and Their Families (CYP&F) Act (1989) to Guardianship Act (1968).

Non-custodial family/whanau members (usually parents) sometimes apply for custody or access to their child or young person after CYP&F Act proceedings have been discharged and new orders are granted under the Guardianship Act to caregivers. When a situation such as this arises, the caregivers are forced into court proceedings and incur financial costs. On several occasions the Family Court has held Child, Youth and Family responsible for the caregivers’ legal expenses and further litigation costs.

The following outlines the Department’s policy and practice guidelines relating to this matter.


Provision under s389 is made for the Chief Executive to provide financial assistance to a person caring for a child/young person who has previously been subject to interim or full care orders/agreements, or is in need of special assistance.


Child, Youth and Family is responsible for ensuring that a child’s or young person’s care and protection is maintained, including protecting a stable permanent placement should the discharge proposal and/or subsequent application by the caregiver, be opposed by parents or other family/whanau.

In the event that opposition is filed in the court, Child, Youth and Family will provide reasonable financial assistance towards the caregivers legal costs when:

  • an application opposes a discharge plan submitted by Child, Youth and Family, AND
  • caregivers have made all reasonable efforts to abide by the discharge plan, AND
  • the views of the child/young person have been sought, considered and given due weight in accordance with their age and maturity, AND
  • the applicants’ demands are not in the best interests of the child/young person.

Practice guidelines

Once the Department has been made aware of the application, a new intake will be recorded on CYRAS and a social worker allocated to the case (see below for entry details). Before determining what contribution to legal costs Child, Youth and Family will make, the social worker will need to establish:

  • whether all reasonable efforts have been made to adhere to the discharge proposal.
  • the views and wishes of the child or young person (if possible).
  • whether the application (of the opposing party) is in the best interests of child or young person.

If the assessment clearly demonstrates that the application would not be in the child or young person’s best interests:

The social worker will:

  • advise their supervisor and office solicitor of the assessment outcome.
  • arrange for the caregivers to provide the Department with a written quote from their solicitor outlining legal costs.
  • submit the quote to the budget manager.

The budget manager will:

  • seek advice from the office solicitor on reasonable costs.
  • provide the caregivers with written confirmation, detailing costs the Department will meet.
  • once a final account has been received, pay the agreed amount.

Any concerns arising from the assessment outcome should be discussed with the social worker’s supervisor, practice manager and office solicitor.

Understanding the policy

This policy is designed to support permanency planning which must be pursued in the best interests of the child or young person. It reflects Child, Youth and Family’s responsibility to support the caregivers, and the stability of the child or young person’s placement from any adverse consequences that could arise from discharge of the Chief Executive’s orders.

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