Oranga Tamariki Oversight Bill under fire: 'They want a lapdog, not a watchdog'
Thursday, 17 February 2022
Advocates and child protection experts are slamming proposed changes to child protection laws that are supposed to increase oversight of Oranga Tamariki, but they say will degrade it instead. Aaron Smale reports.
Piwi Beard’s ancestry is split roughly between Ngāti Porou and Welsh so staying silent is not in her DNA. There’s a nanosecond between her seeing something is wrong and doing or saying something about it. And watch out if you’re in her line of fire
The Aranui resident is one of the stalwarts of Tu Pono Mana Tangata, a community trust that is on the front line of the challenges facing whānau living in the eastern suburbs of Christchurch. Those challenges are legion.
But what gets Beard really worked up are failures of Oranga Tamariki. As a former ward of the state who grew up in girls’ welfare homes, she draws on the resulting empathy when helping children going through the system now.
Beard estimates she’s made around 40 complaints to Oranga Tamariki over the past couple of years. She can’t name one that has been resolved properly. On more than one occasion she has taken matters into her own hands, like the time two girls came into the trust’s office. They’d been in Oranga Tamariki’s care for seven years.
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“The moment the girls walked in I just knew there was something wrong. Within five minutes of sitting with them, the 15-year-old just let it all out.
“The caseworker from OT was sitting there, and I looked at her and I said, ‘You need to take the little one out while I talk to her.’ I got another staff member/kaimahi to come in while we talked. When she went out, the 11-year-old broke down and told the caseworker from OT what was going on in front of one of my staff. I walked out, and I said: ‘You need to contact your supervisor, these girls aren’t going anywhere.’”
It was the last straw for Beard, who refused to let the girls return to Oranga Tamariki care. Even worse, she says, Oranga Tamariki staff had been told what was happening to the girls, but had done nothing to help them.
“[The girls] told their teachers, they told their parents, they’d told all their caseworkers they’d had with Oranga Tamariki, they’d told the counsellor. They’d told everybody. Every time they could tell someone, they would tell them.
“The teachers had contacted Oranga Tamariki with concerns. The counsellor, whose organisation I know … said she’d actually told the caseworker from OT. Everybody had contacted OT but no reports of concern were ever put in.
“There was psychological abuse, neglect, physical, very physical to the point of being knocked out. There is something that they haven’t spoken of, the older one has said she’s not ready to talk about anything else. We know that, the shame and blame.
“There were big racial statements that they were useless because they were Māori. This is what the carers were saying to the children. There was no help. These girls would go to anyone that would listen to them.”
The two girls are not an isolated case. But what Beard has repeatedly found is that any complaints are dealt with internally by the same office that is responsible for the children it had already failed.
“They turned around and said it has been looked into and the complaint will be investigated by the office that was dealing with the girls. So it was all in-house.”
This structural flaw and conflict of interest has been deeply entrenched in the child protection system for decades. While there have been whole libraries of reports written over the years, Oranga Tamariki and its previous iterations – CYFS, Department of Social Welfare – get to police their own failures. Some disaster hits the headlines, a political storm blows up, someone gets sacked, there’s a restructure, rinse and repeat. But there has never been any independent oversight that has the teeth to hold accountable the institution that is responsible for the custody of thousands of children.
One of Jacinda Ardern’s first announcements as prime minister was a Royal Commission of Inquiry into abuse in state care, an inquiry that will cost taxpayers at least $100 million.
Ardern said at the time: “This is a chance to confront our history and make sure we don’t make the same mistakes again. It is a significant step towards acknowledging and learning from the experiences of those who have been abused in state care.”
The royal commission still has 18 months to go but one of its interim reports on redress was released late last year. Among its observations it said that: “Many survivors approached us out of concern to prevent other children and adults at risk from being abused … The State’s system for monitoring the safety and wellbeing of children, young people and adults at risk in its care is spread among several government agencies and across several ministerial portfolios. It has been under continual review and reorganisation, with little time allowed for recommendations to be fully implemented or evaluated. There have also reportedly been problems with resourcing, a lack of well-trained staff and too little co-ordination. The Office of the Children’s Commissioner, as principal monitor of Oranga Tamariki, told us it was strongly in favour of an effective and independent monitor and an independent, child-centred complaints mechanism.”
The royal commission said monitoring needed to be part of a wider redress system. It also recommended that the right to be free from abuse while in care needed to be specifically spelled out in legislation and that there should be legal liability for failing to uphold this right.
But despite this, the Government appears to be charging ahead with a change in legislation that will effectively ignore the commission and repeat the flaws it has identified, as well as ignoring a slate of recommendations over decades and experts in the present. But, more crucially, it is ignoring the very people who have been through the system and been harmed by it. And by doing so it will embed a structure that many believe will put children at increased risk of harm, right up to and including death.
Just days before Christmas a bill slipped into the public domain with an invitation for submissions. Those who keep a close eye on Oranga Tamariki were caught on the hop and had to hastily put together a response, as the deadline closed at the end of January.
A significant number of the submissions argue that the Oranga Tamariki Oversight Bill will take an inadequate system and make it far worse.
Social Development Minister Carmel Sepuloni made announcements last year about the direction the Government was heading and foreshadowed the main outline of the bill.
“Following the recommendations of several reviews, Cabinet agreed in 2019 to build a significantly expanded independent monitor for children in care,” Sepuloni said.
“The Monitor was set up within MSD while it developed the capability to take on expanded monitoring. The Monitor will now be set up as a new departmental agency and will be responsible for monitoring the Oranga Tamariki system. This agency will be hosted by the Education Review Office (ERO), and be led by its own chief executive who will be a statutory officer.
“The Government had planned for the Office of the Children’s Commissioner to host the Monitor. However, after weighing a number of factors we have decided to establish a new departmental agency.
“After looking into each of the roles required, we believe both organisations need to be independent of each other.”
What is currently in place includes a significant but limited role for the Children’s Commissioner, a bit-part for the Ombudsman’s office and opaque internal processes within Oranga Tamariki.
What the proposed legislation will do is strip the Children’s Commissioner role of oversight of Oranga Tamariki (which was always crimped by budget restrictions) and hand this to the Independent Children’s Monitor (ICM). This entity was set up a couple of years ago and has yet to prove its independence or its ability to monitor what’s going on for children. The ICM has until now been under MSD but will, under the proposed legislation, be shifted into the Education Review Office, the entity responsible for inspecting schools.
The new legislation will expand the Ombudsman’s role of handling complaints and a “commission” will be set up within Oranga Tamariki with an advocacy role.
Those with experience in government bureaucracy believe the proposed changes will further fragment what was already an incoherent and ineffectual structure. And the result will be less accountability, not more.
Professor Mark Henaghan, who has studied and taught family law for more than 40 years at Otago and more recently at Auckland University, is baffled and appalled by the bill.
“I just don’t understand where it’s come from. I don’t understand it.
“There are a lot of control freaks in the bureaucracy. I think this is what this is about. [Former Children's Commissioner] Andrew Becroft was a judge, so he just spoke the way he saw it. It seems they want to keep more control over the Commissioner for Children. We should be a country that leads in this area, not one that lags behind. It’s frustrating, really.”
Tupua Urlich was in state care as a child and is now involved with the group VOYCE that advocates for children in state care.
“I believe it’s quite simply this – the Children’s Commissioner has been an effective, staunch advocate placing pressure on the Government that they don’t want any more. They want a lapdog, they don’t want a watchdog.”
Scattered throughout Cabinet papers are claims to have consulted with various interested parties.
“They love that word ‘consulting’,” says Urlich. “Consultation is good if that consultation is reflected in the final product.
“The system is always going to be there to defend itself. All of these things they’re doing, it feels tokenistic. They want to appear to be doing great things but the intention to implement and carry out is not there. Then they can say, ‘But we consulted with Maori, we consulted with care-experienced, we’ve done what we can.’ No, it’s rubbish.”
VOYCE advocate Karah Mackie has also been through state care, has siblings who are still in the system and has participated in consultation meetings, only to later feel like they were being used.
“I’ve sat on panels to give feedback … A lot of the time it feels like they’re calling us in or talking to us so they can say that they have, rather than they’re interested in what we have to say. The people on the ground may be interested, but it doesn’t really go anywhere.”
Mackie also says that these sessions can stir up the trauma that many have experienced when they were wards of the state.
“I’m not sure that OT realises that when they’re getting us to do this kind of work, we’re having to relive what we went through when we were younger. The majority of people are traumatised from their experience in care. We’re going out of our way to make sure tamariki going through care at the moment don’t have to deal with this. And then they don’t actually make the change that they promised.
“It just seems like they’re trying to save their arses. It just continues a cycle that care-experienced people have been through.”
Mackie can’t see how the proposed changes will improve protection for children in state care.
While many are dismayed by the Children’s Commissioner’s role being curtailed, there is alarm about the organisation that would be taking over that role.
The Independent Children’s Monitor was spun out of MSD in 2019 when the ministry was taking increasing heat about its handling of historic abuse claims and CYFS. But despite its name, it still sits under ministerial control and is focused on reviewing professional standards rather than children. Urlich says ICM’s recent report, Experiences of Care in Aotearoa, released in late 2021, shows it is already failing.
“The report identifies unacceptable gaps in OT’s ability to measure their own compliance of the care standards. Standards is an important term to remember here because these are the standards of care the Government has obligated Oranga Tamariki to meet. The Government agreed on this three years ago, it was implemented two years ago and still they haven’t established a system to monitor their own compliance. Given there are such large gaps here we know for a fact that the figures in the ICM report will be under-reporting. We know what OT act like when whānau don’t meet their obligations. They sure as hell don’t give them a two-year grace period.
“Throughout this report there are pretty stark findings. The ICM seems to smooth it off with some remark excusing why the situation is what it is.”
Judith Aitken, who was chief executive of ERO in the 1990s, has been following the royal commission and is part of the Royal Commission Forum, an independent group of interested parties who give advice and feedback to the inquiry.
She has been horrified to learn of abuse, including sexual abuse, that occurred in schools that ERO reported on when she was in charge. The abuse was never picked up in those reports. One such school is Dilworth, which has been the subject of criminal investigations and convictions for offences that span decades.
Aitken says it underlines that ERO was only ever designed to inspect the performance of schools at the educational level. ERO was never designed to investigate complaints that arise from vulnerable children in state care. She says the restructure will embed a flawed system that is not up to the job.
“I never saw and, as far as I know, a report was never written that talked in adverse ways about the serious abuse of children. There’s not a hint in any of ERO’s reports about sexual abuse or the sort of abuse that we’ve seen demonstrated through the royal commission. I have to say that haunts me. And it’s not because the reviewers were in any way lacking in observation or were careless. I just don’t think we were alert to the risks of sexual abuse.”
She says the bill seems to be focused on the monitoring of the organisation rather than on what children are experiencing.
“If you’re taking the approach that is recommended in this monitoring approach the emphasis is very much on self-reporting, self-assurance and self-improvement.”
Others also say the ICM and the responsibilities it will assume under the new bill neglect to focus on its core purpose – protecting children.
Retired police officer Chris Graveson was the national co-ordinator of Youth Aid for 17 years and has also consulted on child care and protection in numerous countries overseas. He’s aghast at the bill’s deficiencies. He says that in his work his guiding principle was that the best interests of the child are paramount.
“We are not child-focused in New Zealand. The way I worked in police, all my sergeants were child rights-focused and nothing ever turned to crap on us. We used to win all the cases in court.
“It says everything about the bill when you haven’t got the best interests of the child in the body of the bill, but you’ve got provisions in the bill so people get paid tax-free. If you ever wanted evidence we’re not child-focused in New Zealand and we’re not focused on the rights of the child, you only have to read this bill.
“It’s crap.”
Graveson would like to see the equivalent of the Independent Police Conduct Authority (IPCA) set up within the Children’s Commissioner’s office.
“You’d want a cross-section of people. You’d have cops who have worked on child abuse, a lawyer who has worked as a lawyer for child, and set up a structure where every region has a complaints' procedure.
“I would give my time for free just to get it right.”
Graveson’s suggestion is not a new one. In 2012, former police commissioner Howard Broad reviewed the CYF complaints system and said the IPCA model had merit and could potentially sit within the Children’s Commission.
Whatever the model, there have long been calls for some kind of independent body to investigate complaints about the social services sector.
Retired judge Carolyn Henwood chaired a panel that heard from more than a thousand survivors of state abuse. In her recommendations in 2016 she asked the government to: “Acknowledge the need for accountability in the social services sector by designing and implementing an independent body (such as the IPCA) to resolve historic and current complaints to hold the sector to account.”
The recommendation was ignored.
Human rights lawyer Sonja Cooper has represented thousands of victims of state abuse for more than 25 years and says the bill is insulting to her clients. An increasing number of those clients are still in their teens and have only just left state care.
“It’s going to make things worse if it goes ahead. It’s going to completely disempower the Children’s Commissioner, put monitoring in a place that’s got Government control over it and wrap OT up in cotton wool so that it is better protected from investigations than it is now. It’s a waste of space. It should be put into the rubbish bin and this whole exercise started again.”
She believes the bill is being driven by government advisers.
“Have the officials successfully persuaded the Government that you don’t really need to worry about what’s going on now, that all that stuff that the royal commission is dealing with is well in the past?”
Cooper says the royal commission’s cut-off date of 1999 for its investigations is a clue to what the government bureaucrats were trying to avoid – scrutiny of the present and recent past.
“They deliberately circumscribed the terms of reference for the royal commission so that it’s not present looking.
“We challenged it at the time and said, ‘What is the relevance of that date?’ It’s got no relevance in terms of legislation, it’s got no relevance in terms of any policy changes. It’s far enough back that present governments for the last 20 years can say, it wasn’t us. So there isn’t that real close scrutiny of the current politicians, the current officials who are still around. That’s all Helen Clark’s time.”
She believes the Oranga Tamariki bill is another attempt to prevent scrutiny of the institution’s performance.
“How many times and how many people have to say the system is broken? This is what just shocks me about this bill is that it’s being put up as a serious option. It places a key monitoring role within a government agency, so it takes away independence. That means then that those officials and the government can control the narrative coming out of there in terms of what the issues are and what needs to be done about them. I just think that’s incredibly cynical.”
Ros Noonan is also suspicious that the bill is being driven by bureaucrats. Noonan has long been dealing with government officials and the issue of state abuse in various roles she has held. She was previously the head of the Human Rights Commission, sits on a Royal Commission Forum and recently led a review of the Family Court.
She believes there was political pressure to respond to the PR disasters that Oranga Tamariki has been at the centre of, particularly the documentary by Newsroom journalist Melanie Reid that showed Oranga Tamariki going to extraordinary lengths to remove a newborn from its mother. The exposure led to numerous inquiries that made damning findings, including from the Waitangi Tribunal.
“They wanted to do something because of all the political pressure from the Waitangi Tribunal and the various inquiries into OT. But they could have simply provided additional resources to the Office of the Children’s Commissioner which has the current mandate to monitor.”
Noonan had interactions with government officials during calls for a royal commission into state abuse and found they were extremely resistant to the idea of an independent inquiry.
“TPK argued that everything after 1990 was OK and there was no need for a royal commission.”
She suspects this latest bill is a way to circumvent the royal commission and push through a new system that will keep control in-house. “This is the next thing, pre-empting the royal commission, being able to say to ministers, ‘Oh no, but we’ve already dealt with that.’
“Does the state really want to provide effective protection for children in care, knowing, acknowledging how difficult that is. Nobody’s suggesting there’s an easy fix because there isn’t. But is the will there?”
Urlich doesn’t believe the will is there. He doesn’t trust the state to protect the next generations of children taken into its custody.
“This system has become this big ugly beast that has created an industry off the back of our people’s poverty and trauma. The royal commission is telling us that 250,000 tamariki have been abused in their care. Now [the state] is turning around and telling us, you can trust us to monitor it and not do it again. What an insult.”
Beard regularly witnesses Oranga Tamariki’s abuse of power, lack of accountability, and the damage it can do, not only to children but their families.
The father of the two girls she took from Oranga Tamariki was the subject of a false allegation of sexual abuse. Oranga Tamariki had evidence that it wasn’t him. But it never shared this information with him even though there were numerous opportunities to do so.
“It took seven years to sit down with the dad and apologise and say, ‘Sorry, it wasn’t you, we had evidence it was [someone else].’ Seven years.
“They wouldn’t let him visit the girls even when they had the evidence that he wasn’t the perpetrator. That’s disgusting. He tried to commit suicide.”
The two girls have slowly been rebuilding their relationship with their parents since Beard became involved. The younger one is now back living with her mother. The older one stays over on weekends. Beard says that although the parents had problems, they “never gave up fighting for their girls”.
Beard isn’t about to back off either, for the two girls who walked through her door that day or for any of the whānau who come to her. And Oranga Tamariki is on notice that she’s not going away.
“They think that patronising me is a way to get rid of me. And it’s not,” she laughs heartily.
She has seen enough to know that Oranga Tamariki will change only when it has some strong form of accountability. Until then, she knows, the failures she experienced as a child, and which she still sees in the community, will continue.
“They’re not going to change their behaviour and if they’re going to be the ones that monitor this, we’re going to have further royal commissions coming in the future that are worthless, cost millions and millions of dollars, that come out with nothing.”