How laws to 'strengthen' child protection led to division, distrust, and accusations of an autocracy

Friday, 26 August 2022

The Children’s Commissioner has been an advocate for children. Critics say the decision to strip the office of power was an attempt to mute a critical voice.

The state has incredible powers to remove children from their parents. But the development of new laws to monitor such powers – and prevent harm of kids in care – has been fraught from the start. Was the Government ever listening? National Correspondent Michelle Duff reports.

In late 2018, Māori pēpi were being removed from their parents at greater rates than ever before and more than twice that of Pākehā. It was racist, heavy-handed intrusion from the state, tasked with keeping children safe but seemingly blind to its own policies tearing whānau apart.

The then-Children’s Commissioner, Judge Andrew Becroft, was initially optimistic change was coming. A raft of new laws coming into effect in 2019 meant the government had to monitor and report back on outcomes for Māori children.

It didn’t take long for him to change his tune. Increasing Māori opposition to the practice and the Hawke’s Bay case, which revealed traumatising newborn uplift processes on video, coupled with revelations from the Commission’s own reports and tamariki, led to graver analysis.

“The enduring legacy of colonisation together with systemic racism is a pretty lethal cocktail, and it’s evident throughout all government departments in New Zealand,” he told Stuff and many others, continuing the tradition of his office and those who held it before him – Dr Russell Wills, Dr John Angus, Dr Cindy Kiro – to be a staunch and outspoken advocate for children.

The Children’s Commissioner is one of the highest-profile advocacy figures– but a planned legislation has raised fears the Commissioner’s influence could be ‘neutered’.

* Proposed changes to Oranga Tamariki could deter people from making complaints, welfare advocate argues

Minister for Social Development and Employment Carmel Sepuloni and Minister for the Public Service Chris Hipkins in the debating chamber at Parliament.

* Oranga Tamariki Oversight Bill under fire: 'They want a lapdog, not a watchdog'

Against this backdrop, and the announcement of a Royal Commission of Inquiry into Abuse in State Care in early 2018, four separate inquiries were held into Oranga Tamariki’s care and protection practices by the Waitangi Tribunal, the Māori-led Whānau Ora Commissioning agency, the Ombudsman and the Children’s Commissioner, along with an internal Oranga Tamariki review.

But Stuff can reveal even as this was happening, government officials were forging ahead on proposals to set up an “independent” monitor for Oranga Tamariki. It would be within a government department, preferably, advice said, the Ministry of Social Development (formerly Child, Youth and Family). The Children’s Commissioner ought not to be involved, because it would be “coloured by its advocacy role on behalf of children.”

Some of this initial thinking has since been tempered by strong protest. But an analysis of this and other documents that informed a controversial bill passed last week paint a picture of a Government with a singular intent. It meant to propose a law it knew would be widely unpopular, including with survivors of abuse in state care, and then forge ahead in the face of unanimous political opposition.

Oranga Tamariki operates facilities housing up to 20 children who can’t be placed into homes.

This includes stripping the Office of the Children’s Commissioner (OCC) of most of its powers and spreading them between a bolstered Ombudsman and a new Independent Children’s Monitor, to be established as a new departmental entity.

“It’s Putinesque,” says Professor Jonathan Boston, the chair of Victoria University’s School of Government. “It’s hard to read what’s happened in relation to the Office of the Children’s Commissioner without the sense that a powerful voice was inconvenient for the government. That clearly led to an initiative to mute it.

“If you respond negatively to criticism by a crown entity and essentially mute that entity, that’s consistent with what Vladimir Putin would do. You hear criticism of yourself, you don’t like it, and you get rid of it. It is seriously concerning.”

’Coloured by advocacy’

In an aide-memoire from November 2018 entitled “Strengthening independent oversight of children’s system,” the then-State Service Commission outlined its thinking to Minister of State Services Chris Hipkins. The best place for an independent monitor, it said, was within a government department, preferably the Ministry of Social Development. Or, to put it another way; the best person to make sure the state was doing its job was the state.

The Office of the Children’s Commission had advocacy, monitoring, and investigative functions. But there were risks with situating the monitor within it, the aide-memoire said. This included that “Its feedback, which may extend beyond what is required by current policy settings, would not be particularly helpful to Oranga Tamariki,” and that “Oranga Tamariki and others may perceive its feedback as coloured by its advocacy role on behalf of children.”

When the Minister for Social Development and Employment Carmel Sepuloni took a proposal to Cabinet in March 2019, it was agreed for the monitor to be set up within MSD, with the “in-principle” decision made to move it across to the Children’s Commissioner. Children’s agencies, some of which were part of initial consultation, continued to expect this until the draft Oversight of Oranga Tamariki System and Children and Young People's Commission Bill dropped just before Christmas last year.

With advocates scrambling to make submissions during the holiday break, there was widespread confusion. Why was so much power being removed from the Office of the Children’s Commissioner (OCC), considered a clear and trusted voice for tamariki?

Opposition was swift. “We were shocked,” says Save the Children child rights advocacy director Jacqui Southey, who organised a 10,000-signature petition against it. “The powers of the office were stripped, there was no provision for a named commissioner, no power to receive complaints and initiate investigations and report to the PM and it lost the role as monitor.

“These are key pieces of the office, to advocate, receive complaints, inform the government and investigate, should they need to. One of the drivers was to instil trust and confidence in Oranga Tamariki, and our concern from the start was that it undermined their intentions. How much of this was really up for debate and input, and how much of it was predetermined by government officials?”

Critics like Green Party MP Jan Logie and the Aotearoa Centre for Indigenous People and the Law also say the Government ignored findings of the urgent Waitangi Tribunal inquiry, which recommended a Māori Transitional Authority be established.

In a statement, a spokesman for the Public Service Commission (previously known as the State Services Commission) says its advice about the role of the OCC was given “at a point in time, early in the Government’s considerations on the issue.”

The number of children being removed from their families reached a high in 2018, before public criticisms of Oranga Tamariki began in earnest. That same year, efforts to set up a monitoring system began.

At that stage, the Government was considering putting the OT monitoring role within the office of the Children’s Commissioner. “The Commission’s view was that this could cut across its advocacy role.”

MSD says it “explored options for locating the monitoring function separately to the OCC and provided advice to Ministers on multiple occasions since 2018,” and that the Cabinet paper that sought the 2019 in-principle decision was clear that there were a “number of challenges” in doing this.

Acting Minister for Social Development and Employment Priyanca Radhakrishnan agrees the law change has been “strongly contested”. The debate has informed changes, including the retention of a chief children’s commissioner and requirement for a review of the changes after three years, she says.

The independence of the new monitor is written into law – there should be no concerns around ministerial interference.

“They [the new monitor] now have a legal requirement to act independently when monitoring the Oranga Tamariki system,” Radhakrishnan says.

Business as usual

At this point, whether the OT oversight bill will usher in a better, more comprehensive era of child protection system monitoring is almost a moot point. The path the legislation has taken and its passing last week was re-traumatising for many.

The chair of the Royal Commission of Inquiry into Abuse of Care, Judge Coral Shaw, asked the Government to delay the passing of the bill until after the commission’s findings were published.

Those spoken to by Stuff agree a monitoring system was necessary, and overdue. Before 2019, Oranga Tamariki did not report regularly on its own statistics about abuse in state care, and did not even hold records centrally. Many recommendations have been made in the inquiries since.

But no-one outside of Government expected it to look like this. So what happened between 2019 and 2021, the same time Oranga Tamariki was under the heightened public scrutiny which led to the resignation of then chief executive Grainne Moss?

Briefing documents and Cabinet papers to Sepuloni since March 2019 detail the gradual stripping away of power from the Children’s Commissioner. In September 2019, the Ministry of Social Development was assuring Sepuloni the Commissioner did not need investigative powers, and by December 2020 it had decided it shouldn’t monitor OT either, alleging the advocacy and monitoring functions were too contradictory.

It restated this in multiple memos. “Specifically, it is the role of the advocate to challenge Ministers … this is in contrast to the role of the Monitor who provides trusted advice to Ministers. Housing the two functions within the same entity creates an inherent conflict that cannot be easily resolved.”

MSD said creating a new government entity could mitigate concerns about independence. However, while it said the trust of the public, particularly Māori, was the primary consideration, it also said the new entity would be a challenge to sell. “We anticipate significant push back from child’s rights groups, academics and NGOs at select committee stage.”

Former state ward Tupua Urlich says the bill’s process, alongside the commission, has made a mockery of survivor’s voices and shows little intent to change.

So why did the government push on? In May, Sepuloni met separately with concerned staff from Save the Children, Amnesty International, the Human Rights Commission and others, who all wanted the bill paused for the same reasons; a lack of consultation, a disregard for Te Tiriti o Waitangi, the independence of the monitor, how the system would be fragmented, and to wait for the Royal Commission of Inquiry.

Many of the more than 400 submitters to the bill had argued that advocacy and monitoring complemented each other; investigatory powers and monitoring reports informed the work. “Those advocacy positions did not come out of their hot takes disconnected from the realities of children and whanau, they came directly from lived experiences,” Logie says. It was standard practice elsewhere, within both the Climate Change Commission and the Mental Health and Wellbeing Commission.

Sepuloni had the same answers for all of them. It was considered “imperative” to have comprehensive oversight arrangements in place as soon as possible; consultation had been thorough; the Royal Commission’s recommendations could be included later; the bill included provisions to strengthen independence; the new system would be communicated to the public; and the oversight bodies had to uphold Te Tiriti.

And in May 2022, even before the select committee examining the bill reported back, work to embed the new independent entity was already well underway. This included a meeting between the chief monitor and Judge Coral Shaw and the Royal Commissioners. In a statement, Shaw said she had written to the Minister of Internal Affairs and met with the monitor and the Ombudsman to relay concerns the bill was progressing too swiftly.

“Without including the voices of the survivors who have come forward to the Commission, the Bill may fail to meet its objective of providing effective oversight of tamariki in care and is at risk of repeating the mistakes of the past.”

The Government did make some changes after select committee, but Southey says concerns remain. “We have real issues around how it will be able to safely say what’s happening without being quietened by offices above.”

‘The perpetrator holds all the power’

The planned monitoring of OT will be extensive, with plans over time for it to encompass everything from the effectiveness of early intervention practices, to successful transition from care, family group conferences, and the state's use of powers to remove children from their families. Te Mana Whakamaru Tamariki Motuhake, the new Independent Children’s Monitor, has a budget of $10.5m per annum, compared to the Children’s Commission’s $3.15m. A stand-alone website for kids in care complaints is being developed by the Ombudsman.

This is not insignificant. But is it all undermined if whānau don’t trust it?

Absolutely, says Tupua Urlich of Voyce – Whakarongo Mai, talking to Stuff on WhatsApp from Colombia, where he is on holiday with his young family. He can’t let it go.

“What an insult,” Urlich, 27, says. “The government had predetermined the outcome, regardless of what people had to say.

“Here we have the perpetrator of abuse holding all the power in terms of the way forward, and in essence abusing that power by not even listening to us. The Government do not have any respect at all to those who have been abused who come forward at the Royal Commission.”

Earlier in the week, at the last of the Commission’s hearings, Oranga Tamariki chief executive Chappie Te Kani was asked why a staff member, accused of sexual and physical abuse, was later re-employed by the agency and is still allowed to work with children. He stated they no longer worked in a front-facing role. Asked when the person was removed, it was revealed to be last Monday, when concerns were raised at the commission.

These ongoing issues are eroding confidence, Urlich says. “The Government has just turned [the Commission] into a listening post. To be real with you, it will not be trusted by our community.”

In a last ditch effort on Thursday, Children’s Commissioner Judge Frances Eivers made a final appeal. Mokopuna trusted them, she said, and this was a betrayal.

“The state cannot monitor itself, no matter how many non-interference agreements we are told are in place or assurances that it is independent. The public does not believe that the new monitor can be truly independent,” she said.

“I’m repeatedly asked why the state is deliberately taking steps to remove any checks and balances on a system that has the most feared powers of all, the power to take children away.”

Correction: The story initially stated Te Mana Whakamaru Tamariki Motuhake, the new Independent Children’s Monitor, has a budget of $44m a year. The organisation has been allocated $44m in establishment and operating costs. Its annual budget is $10.5m.