Judge dismisses Oranga Tamariki's bid to remove Māori girl from Pākehā couple

Thursday, 9 September 2021

Neglected and traumatised, a young Māori girl was put in the care of a Pākehā couple, where she thrived.

A Family Court judge has ruled that a traumatised and neglected Māori girl will remain in the care of her Pākehā foster parents, and has slammed Oranga Tamariki for putting ideology ahead of a child’s best interests.

The case concerns a 6-year-old girl, who for nearly three years has been living with the couple in a safe, healthy, loving environment in rural Hawke’s Bay.

Oranga Tamariki/the Ministry for Children and the girl’s iwi wanted her removed because they did not think the couple could meet her cultural needs.

They wanted the girl (called “Moana” in Stuff’s stories about the case), placed with an elderly Māori woman and her daughter (“Mrs Taipa” and “Ms Taipa”), who live in Wellington and cared for Moana’s younger brother.

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Judge Peter Callinicos released his decision on Thursday. (File photo)

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Judge Peter Callinicos heard applications from Oranga Tamariki and the foster parents (referred to as the “Smiths” in the stories), over two hearings earlier this year.

Oranga Tamariki failed to adequately support the Smiths, who wanted to provide for Moana's cultural needs. (File photo)

Moana had been removed from her mother three times in the first three years of her life. Her mother was pregnant with a fifth child when Moana was removed from her care. She was placed with a Pākehā couple who live in rural Hawke’s Bay in September 2018 after Oranga Tamariki could not find suitable or available whānau to take her.

But then after three stable years with the couple, Oranga Tamariki and the girl's iwi wanted her removed because they did not think the couple could meet her cultural needs.

In a decision released on Thursday, the judge dismissed Oranga Tamariki’s application and ruled that Moana will stay with the Smiths. He has appointed Mr Smith and Mrs Taipa as guardians of Moana, along with her birth mother, and ruled that Moana will spend several weeks a year with the Taipas.

The 145-page decision includes stark criticism of Oranga Tamariki, its chief executive and numerous of its staff, though the judge said his intention was to traverse the facts that led to the situation and not to criticise.

Moana’s cultural needs must be met, the judge said. (File photo)

The judge was particularly scathing of Oranga Tamariki staff members’ failure to appreciate the need for honesty and accuracy when compiling statutory reports, and concluded that social workers appeared to place little importance in documents that were vital to a child’s wellbeing.

He pinned much of the agency’s failures on the decisions made by a junior social worker, whose unchecked views against the Smiths influenced the views of other staff who followed.

“The evidence is overwhelming in demonstrating that from the outset of her role, her judgment was influenced by a view that, regardless of all other facts and principles, Māori children must be with Māori caregivers,” he said.

The hearing into Moana's custody had to be adjourned part-heard in March when it was discovered Oranga Tamariki had failed to disclose key information and documents. (File photo)

Judge Callinicos said the ideal goal was to have children of a specific cultural group with caregivers from the same family or cultural group but “sadly that may sometimes not be achievable”. The key flaw in such a belief-driven approach was that it distracted from the mandatory consideration of what was holistically best for the child, he said.

Other staff working in Oranga Tamariki’s Napier office were also criticised and there was “overwhelming evidence” that they had not been open with the Smiths or the Taipas, the judge continued.

The judge said he recognised and respected the mana of Ngāti Kahungunu leader Ngahiwi Tomoana, and Tomoana’s views that all the iwi’s children should be cared for within the iwi but he had to make a decision based on legislation and principles that required him to take a holistic approach.

“Until such time as Parliament gives statutory effect that the views of an iwi are the start and end points, the determination must be by reference to the holistic factors in the statutes, which include the taking into account of such important cultural perspectives as part of the matrix of considerations,” he said.

The judge praised Mrs Taipa, who was an “impressive and insightful witness” and displayed “sheer dignity and mana”. The Smiths were similarly praised for their dignity and composure.

The judge said Oranga Tamariki appeared to want to criticise the Smiths for failing to support Moana’s cultural needs, while doing nothing to help them, despite their requests for help.

There was overwhelming evidence that the agency failed to provide the Smiths with any support to build their cultural capacity, and it neglected their requests for more information on Moana’s whānau and whakapapa, he said.

Assertions by Oranga Tamariki that the Smiths were “stripping [Moana] of her whakapapa” were without foundation and the ministry was well aware of the Smiths’ cultural capacities when it chose to put Moana with them, he said.

“An honourable agency would assess their own part in any failings rather than address them by a highly risky removal, with all its incumbent trauma and distress to the caregivers and subject child,” he said.

He said Oranga Tamariki’s inflexibility in its stance that Moana be removed from the Smiths showed the agency was either incapable of “seeing the wood for the trees” or that it was driven “more by ideology than workable child-centred outcomes”, or both.

“In either event, the ministry's final position was disheartening to see,” he said.

In the end the judge acknowledged that Moana would receive high quality care and love if she was placed with the Taipa whānau, but the evidence showed there was a high risk she would suffer a disruption to her established attachments with the Smiths if she was moved from them.

Moana suffered a lot in her formative years, the judge said, and “the risk of undoing the gains obtained over three years is real and almost impossible to reliably predict at this stage”.

He chose a path that would see Moana benefit from the Smiths’ “love, stability, care and competence in parenting” while also able to benefit from the Taipas’ “strong and competent links to whakapapa and whānaungatanga (kinship)”.

Judge Callinicos said he expected the chief executive of Oranga Tamariki to provide support and services to the Smiths “and this whanāu, hapū and iwi to pursue more cultural connectiveness for [Moana]”.

He said Moana “now has an opportunity to explore her te ao Māori dimension, and she deserves a safe and stable pathway to ensure she grasps the tools of both cultures: not merely one of them”.

Because the Smiths were successful in the orders they had sought, with some modifications, they were entitled to apply for costs. He left it for the parties to negotiate.