The Child Protection Test · Discussion 05
Without notice, without voice?
There are circumstances where a child cannot safely wait for an ordinary court process. But when the Family Court is asked to make an interim custody order before the parent, guardian or caregiver has been heard, the applicant's evidential discipline becomes more important, not less.
Section 78 of the Oranga Tamariki Act allows the Family Court to make interim custody orders while care-and-protection proceedings are determined. It also permits urgent interim custody where no other proceeding has yet commenced if the statutory urgency test is met.
The order is made by a judge. Oranga Tamariki does not remove a child merely by deciding internally that it wants a section 78 order.
But the quality and balance of the material OT puts before the judge can be decisive, especially in a without-notice application where the respondent has not yet had the opportunity to answer the allegations.
Section 78 and “without notice” are not the same thing
Section 78 is the statutory power for interim custody.
“Without notice” describes the procedure used to ask the Court for the order.
Oranga Tamariki's live policy identifies two main filing pathways.
On notice
The respondents are served and ordinarily have up to seven days to indicate they want to be heard before the Court decides the application.
Urgent on notice
The response period can be shortened, including to roughly one to three days, where urgency exists but a short opportunity to respond can safely be given.
Without notice
The respondent is not informed before the application is considered. If granted, the initial interim order can therefore be made before the family has presented its answer.
That distinction is crucial because OT's own policy says all applications should be filed on notice where possible to uphold the participation rights of the child and whānau or family.
OT says without-notice applications are exceptional
The current policy says a without-notice section 78 application can only be filed if OT believes the delay caused by an on-notice application might expose the child or young person to serious injury, undue hardship or risk to personal safety.
Even then, there is another question.
If the risk can be managed by giving the respondents a shortened period to respond, OT says the application must be filed on notice with reduced time rather than without notice.
Before choosing the without-notice route, the practitioner must consider the immediacy of the concern, how far OT has been able to engage the family and explore alternatives, and how existing or historical involvement connects to the current situation.
The test is not simply “is this serious?” It is also “why is it unsafe to let the family know and give them even a short opportunity to answer?”
The internal process is deliberately multi-layered
OT's policy requires several steps before a without-notice application is submitted for approval.
The practitioner must complete an assessment based on known information.
They must consult their supervisor or practice leader.
They must hold a child/young person and family consult, or record why it did not occur.
They must obtain advice from Legal Services about the application and whether it should be on notice or without notice.
The application and supporting affidavit are then subject to further review and management approval.
That architecture tells us something important.
Oranga Tamariki itself recognises that a decision to seek custody before the family is heard should not rest on one social worker's unreviewed judgment.
The affidavit has an unusually important role
OT's current policy specifies what the affidavit supporting a without-notice application must contain.
It must describe the assessment outcome and why the child is said to be in need of care or protection.
It must explain why the safety or wellbeing concerns are serious enough to meet the without-notice threshold.
It must state whether the family had appropriate opportunities to engage and, if not, why not.
It must explain why a lower level of intervention—including an application on notice—will not adequately address the concern.
And it must include all information favourable to the respondents.
What counts as favourable information?
Potentially, anything materially relevant that cuts against the application or affects how the risk should be understood.
A parent has engaged with services.
A whānau member has offered an immediately safe placement.
A professional disputes an allegation.
A medical finding is less conclusive than first described.
An earlier concern has been resolved.
A parent has complied with a safety plan.
The information is historical and no longer reflects the current household.
A disputed allegation has not been verified.
A service needed to reduce risk was unavailable rather than refused.
The child has expressed a relevant view.
This does not mean favourable evidence must outweigh the danger.
It means the judge—not the applicant—must be allowed to decide what weight it deserves.
The application must also explain why lesser intervention will not work
This connects directly with the previous discussions in the series.
If the child can be safely protected through an urgent on-notice hearing, a whānau placement, safety plan, temporary care agreement, support intervention or another less intrusive route, the rationale for acting without notice becomes weaker.
OT's current urgent-action guidance says a section 78 interim custody order may be needed where a whānau or family-led solution cannot be found, the situation is serious and safety cannot be secured another way.
Its guidance for newborn pēpi is stronger still: removal is described as significant and traumatic; interim custody should be used only after other intervention options have been exhausted; and without-notice section 78 applications are reserved for exceptional urgent cases where other safety options have been considered but are unavailable.
Approval must be recorded
The policy requires site-manager approval before a without-notice application can be filed, except that immediate emergency situations may require verbal approval first with the written record completed as soon as possible.
The site manager is expected to be satisfied that the practice leader endorses the practice rationale and the regional litigation manager endorses the legal rationale.
If there is disagreement, the issue is to be escalated rather than hidden.
The approval record saved in CYRAS must state whether the application was approved, who was consulted, the factors considered and how differences of view were addressed.
That creates an audit trail.
Or at least it should.
A high-impact decision should leave behind evidence of who challenged it, who approved it and why.
The Court remains the decision-maker
This point matters because criticism of OT should not erase the role of judicial scrutiny.
The Family Court can grant or refuse the interim order. OT's policy also recognises that a judge may instead request a short hearing attended by both sides before deciding.
Where a standalone urgent section 78 order is made under section 78(1A), the Act limits its duration: ordinarily to the period specified by the Court up to 28 days, subject to the statutory alternative allowing a later specified date sufficient for an FGC and, if needed, a further application.
The Act also provides a route under section 125 for eligible persons to apply to vary or discharge a section 78 order, subject to section 126 and the applicable statutory conditions.
The interim decision is therefore not necessarily the final word.
But the first order can change the factual landscape
“Interim” should not be confused with “inconsequential”.
Once a child is removed, practical consequences can begin immediately.
Living arrangements change.
Contact may become structured.
The child may be placed with whānau, a caregiver or another placement.
New professional observations are generated in the changed environment.
Parents may be required to complete assessments or programmes.
Time passes while the litigation, FGC process and service referrals continue.
That is why the quality of the initial application deserves special scrutiny.
An urgent interim order may be legally necessary. But because the order can materially reshape the circumstances that later evidence is built upon, the threshold and supporting evidence should be auditable.
What should families receive after the order?
The Ministry of Justice says that after a without-notice care-or-protection process begins, the parent, guardian or caregiver is given the application and any interim order, told about the hearing, and can file response papers if they want to contest the application.
The Ministry's current public guidance says respondents ordinarily have seven days to file and serve response papers after being notified.
The Court also appoints a lawyer for the child.
Legal aid may be available for care-and-protection proceedings depending on income, assets, merits and other statutory factors.
Those post-order rights matter, but they do not retrospectively cure a defective initial affidavit.
If material information favourable to the respondent was omitted, inaccurate material was presented as fact, or the urgency rationale did not withstand scrutiny, that should be raised promptly through the proper legal process.
What an independent section 78 audit should test
What specific harm was expected from the delay involved in giving notice?
Why could a one-to-three-day response period not safely manage the risk?
What current facts—not merely historical involvement—established the concern?
What opportunities did the family have to hear the concern, propose safety options and identify whānau resources? If none, why?
Which lower-level interventions were considered and why were they inadequate or unavailable?
What material supported the respondents' position and where did it appear in the affidavit?
Were disputed allegations labelled as such? Were the key facts checked against their source?
Was supervision completed? Was the child/young person and family consult held? If not, why?
Did Legal Services review both the application and affidavit? If not, what exceptional reason was recorded?
Who endorsed the practice rationale, who endorsed the legal rationale, who approved filing and were disagreements documented?
How quickly was the family served, connected with counsel and given a meaningful opportunity to answer?
Once the family supplied contrary evidence, was the interim position genuinely reconsidered?
A system capable of answering those questions would make it possible to distinguish an unavoidable emergency intervention from a process that became more coercive than the evidence required.
The absence of the family changes the duty on the applicant
There is a simple principle underneath all of this.
In an adversarial hearing, the other side can normally expose omissions and contradictions.
In a without-notice application, that corrective mechanism is initially absent.
So the application process has to compensate.
That is exactly what OT's requirements for favourable information, Legal Services review, multi-level approval, documented alternatives and recorded disagreement are trying to do.
What families and lawyers should look for
Where a without-notice section 78 order has been made, the useful questions are evidential.
What was the exact without-notice threshold relied upon?
Why would giving me even short notice have endangered the child?
What favourable information about me or the whānau was disclosed to the judge?
What alternatives were considered?
Was the child/young person and family consult completed?
Who reviewed the affidavit?
Who approved the application?
What information in the affidavit was allegation, professional opinion or verified fact?
What changed once my evidence became available?
Those questions do not ask a family to physically obstruct an order.
They preserve the dispute where it belongs: in the evidence, the statutory threshold and the Court process.
When a parent is not heard before the first order, the file should be able to prove why that was necessary.
Primary and official sources
Oranga Tamariki Act 1989, s 78 — interim custody and urgent cases ↗
Oranga Tamariki Act 1989, s 125 — variation or discharge of section 78 orders ↗
Oranga Tamariki Practice Centre — without-notice section 78 policy ↗
Oranga Tamariki Practice Centre — applying for care or protection orders ↗
Oranga Tamariki Practice Centre — urgent action and alternatives ↗
Oranga Tamariki Practice Centre — newborn pēpi and exceptional use of without-notice section 78 ↗
Ministry of Justice — care or protection application process and response rights ↗
Ministry of Justice — family legal aid eligibility ↗
Legislation and live Oranga Tamariki policy checked on 31 August 2026. Section 78 concerns interim custody; the separate section 73 safeguard about whether care or protection can be achieved by other means applies to final care-or-protection orders and should not be treated as the statutory test for an urgent interim section 78 order.