Taken By The State

‘Wake up and smell the injustice’

Janet Mason, the lawyer for the young mother whose newborn baby was the subject of a controversial 'uplift' attempt by Oranga Tamariki, explains what the agency did, and continues to do, so wrong.

Two weeks on from the release of the Newsroom documentary lifting the lid on the manner in which the state uplifts babies, it is clear that its contents have shocked the nation.

Many have spoken out against the actions of the state. Some have defended them.

I speak against the state’s conduct. It is unacceptable. There are no excuses which justify such conduct. It must stop. 

There are also statements attempting to caution restraint in criticising Oranga Tamariki. People say that if the baby had died because the state had not uplifted him, then we would be blaming Oranga Tamariki, and they are “damned if they do and damned if they don’t”.

These statements are merely positing a false dichotomy. It is mischievous to speak of an either/or situation like this. A false dichotomy only serves to obscure the many other options available in these baby uplift situations. Obviously, such options will not emerge without a lawful, fair, robust, and inclusive process.

I accept that there are many, many situations which are downright dangerous for children and require intervention. This point is not in issue. What is of concern is the process used and the nature of that intervention.

Here, I want to focus on the removal of newborn babies and the hideous practice of applying for what is commonly known as a section 78 Without Notice/ex parte order to “uplift” them.

First, we need to take stock of certain fundamental principles underpinning our legal system. Everyone is entitled to natural justice. One of the core principles of natural justice, is that when an allegation is made against someone, that person has a right to defend herself and put forward her side of the story. Any decision by a court to make a determination after hearing only from one side (ex parte) can only be made in the most extreme circumstances.

In making a decision about whether or not to grant an order ex parte, the judge or other decision maker will need to take into account the consequences arising from that determination. If the consequences are severe, extreme caution has to be exercised in utilising the ex parte process. In the case of a baby uplift, the consequences of an ex parte order are enormous. The effect on a newborn baby of being removed from his/her mother leaves life-long wounds from which he/she is likely never to recover. Equally, those wounds also affect his/her mother for the rest of her life.

So, is the s78 ex parte process appropriate in these baby-uplift circumstances? Without hesitation, I say: 'No, it most certainly is not'.

In most of these newborn baby-uplift cases, state agencies have planned well in advance to remove the newborn. Information is routinely shared by the relevant authorities.

For instance, when the police are called out to a domestic violence situation, the persons involved, or those who reside at that address are recorded in the system as being “at risk”. Also, where a mother has one child already held by the State, that mother is recorded in the system as an “at risk” person. Therefore, when an “at risk” woman, presents to her GP as pregnant, this information is captured by the DHB, and passed to Oranga Tamariki. From that moment on, there is plenty of time for these state agencies to work through whatever their concerns are with the mother and - if they remain unsatisfied - to apply for the s78 order with notice.

I can see no reason whatsoever, in these circumstances, to justify without notice ex parte uplift orders being applied for and granted. Instead, what occurred in the Hastings case appears to be all too common. Oranga Tamariki waited until the day the baby was born to apply for the order. In that case the order was applied for and granted on May 2 but not presented to the mother until May 6. Hardly very urgent was it?

I understand that, over the past few years, there have been hundreds of s78 uplift orders that were sought and granted ex parte. In relation to newborns, some have put the figure for the past three years somewhere in the vicinity of 800. If this figure is correct, then approximately 800 newborn babies have been uplifted in this way.

To make matters worse, many of the calls, emails and information we are receiving relate to s78 uplift orders being granted ex parte, on the basis of “evidence” which the relevant mothers vehemently reject. I wonder, if these s78 applications had been on notice, and the mother had been given an opportunity to refute the information put up as evidence by Oranga Tamariki, how many would have been granted by the court and how many would have been turned down? How many of these 800 or so new-born babies would still be with their mothers today?

Much water is yet to flow under this bridge. We can expect a surge in High Court litigation in this area challenging the legality of these s78 ex parte uplift orders, and the uplifts that ensued.

In the meantime, the spotlight is and should be on the conduct and actions of Oranga Tamariki. If, indeed, 800 babies have been taken by the state on the basis of a process which has unlawfully deprived mothers of a right to defend themselves and their babies, and to put their side of the story, then of course we must find out who/what is responsible.

Is it the system that is broken? Is it individuals? Is it senior management? Is it the CEO? These are all questions that ought to take central stage in any independent review. This is also a necessary part of the process of change. Some people use the word “blame”. I prefer the term “accountability”. Someone and/or something must be found to be accountable for this, and also, to be held to account. We cannot have human suffering of this magnitude without someone and/or something being held to account.

This is why an independent inquiry, by an independent panel into the events that occurred in Hastings is an absolute necessity. It is a starting point in quickly identifying problems within the system.

While arrows fly, and shields and swords are drawn, we need to reflect on the wider context, in which it has come to be that the taking of newborn babies and children from their mothers has become so normalised.

I pored over the Oranga Tamariki Act 1989, also called the Children’s and Young People’s Well-being Act 1989, all 397 pages of it, and the word “mother” is not mentioned once! How ironic? Here we have a statute, purportedly about the well-being of children and babies and, the one person with whom babies and children are biologically intertwined; fed and sustained emotionally, spiritually, and physically by the same body, for nine months; the very person upon which a baby’s wellbeing and health ultimately depends upon, is invisible. MOTHER, WHERE ARE YOU?

In the Hastings case, I acted for the mother. Her voice, and her preferences in relation to what happened to her baby, were, throughout the process, ignored, and in many ways brutally undermined. I have during this time reflected on the many, many things that are wrong with the baby-uplift process.

Some things stand out. In particular, the way in which the process of birthing is no longer a sacred and respected one to be cherished. The way that mothers are no longer protected and held on a pedestal for one of the few acts that ensure the continuance of the human race, the act of bearing a child. The way that many of her decisions in relation to her child are taken away from her.

Likewise, the way in which decisions are forced upon her by a system that has no genuine interest in her well-being. The way one 19 year old woman, exhausted, and in pain from having had a caesarean operation a mere 6 days prior, had to endure a barrage of abuse on the part of State Agencies, just to hold on to the most precious thing in her life – her new-born baby.

We live in a society in which the status of women, and our role as fundamental to the preservation of humankind, has been degraded and defiled to the point where we are completely invisible in a 400-page document setting out the parameters of responsibility for the wellbeing of our own children. Instead, take a look at the imagery around you as you walk down the street. These highly sexualised depictions of women project to young and old alike, a role for women that is far removed from the respect she deserves.

In the natural world, mothers and their young stay together as a unit, and woe betide anyone who dares to interfere. Those of us who were lucky enough to have been brought up with nature around us know that this is its way – it is mother who is responsible for, and the protector of her newborn. In turn, she is protected by her group.

The statistics for Maori baby uplifts are bad – three per week. Many mention the drugs, the alcohol, the violence, the poverty. In the Hastings case, the mother was already staying at a safe house, males were not permitted into that whare. She had no drug or alcohol issues. She and her baby were in a safe environment.

We do have to ask why there are not more houses and facilities like this: places where a mother and baby can go to be safe and protected. Why is our principal fostering model based on the removal of a baby from his/her mother and the placement of that baby in a different family? Why not look at a fostering option that keeps mother and baby together? They are a natural fit, like hand and glove, and must not be separated. If indeed they really have to leave their environment, then they should both have the option of leaving that environment, and being housed together, while support services are put in place for the whānau/family.

If a mother is in a very bad space, then why are we not doing very much to support her? In relation to the drugs, alcohol and various issues that have been identified, why are there not more services to support her? There is a refugee complex in Auckland which provides numerous wrap-around support services all in one place for refugees. Why are there not similar places for mothers and babies?

In our society, women are not allowed to scream when their babies are taken off of them. However, the trauma they suffer silently, the hurt and the anguish does not go away, it merely manifests itself in some other way, for instance, via the use and abuse of alcohol, drugs and violence. The child also suffers a great grief and anguish, which likewise manifests itself in similar anti-social behaviours. The practice of baby-uplifts must surely leave a gaping hole in her heart along with a gaping hole in her child’s heart.

Many of my Maori clients tell me that this forced removal of children has been going on for years. It is inter-generational. They tell me of the numbers of persons abused whilst in State care. That many of those Māori in prison have been wards of the state, and have suffered terrible physical and sexual abuse under the supposed “care” of the State.

Oranga Tamariki’s own statistics show that during two of the quarters last year, 130 (2%) and 97 (1.5%) respectively of the children and young people in its care were abused. 65 percent of those children and young people were Māori.

This is all just a vicious cycle, and we must change our approach to these issues.

Where a child or baby is at risk, we can either remove him/her from his/her environment, or provide support to his/her household and environment to reduce or eliminate the risk. In the past we have removed the child. There is now more than enough evidence to show that, as a policy option, this does not work, so why are we still doing this?

It is often news to citizens of this country that baby uplifts don’t occur in the majority of nations. They appear to be a feature of those countries whose indigenous populations have suffered significant deprivation at the hands of the coloniser: Australia, New Zealand, and Canada spring to mind. In my home country of Fiji, we don’t have a history, or an ingrained practice, of baby-taking.

Perhaps, the fact that native populations in Fiji still own 88 percent of their land communally, land which cannot be bought or sold, and their culture and language historically has not been decimated, as it has here, makes a difference. Māori tell me of the links between birth, the pito, whenua, whakapapa; of the theft of their lands; and of the numerous policies and laws of the State which have attempted to wipe out their Tikanga laws and culture.

The State must accept responsibility for the way it’s actions, since 1840, have caused the enormous deprivation within Māori communities, and put adequate resources into restoring those communities to the levels of health and well-being they enjoyed prior to 1840. It must also transfer the responsibilities for family well-being/whānau-ora to Maori themselves. There is no justifiable reason for the well-being of Māori children and their whānau to be something that takes place under the hand of the State.

The Hastings case holds much hope for us all. It demonstrated how that community, including the iwi, whānau, local Māori Councillors, midwives, and church groups stepped up and supported the 19 year-old mother. It was great to see how the leaders in that community, Ngahiwi Tomoana, the chair of the Kahungunu Iwi, and Des Ratima, chair of the Takitimu District Māori Council, were able to work closely together, with fortitude and leadership, to support their women, including, the midwives, who refused to be automatons blindly going with the flow.

Those Māori leaders in Hastings have established a Taumata, and expect to be consulted as soon as “at risk” children and mothers are identified. In being part of the process early on, they are able to intervene to find solutions New Zealanders as whole can be proud of, as opposed to what the nation witnessed in the Hastings case.

I visited the whānau last week, at the home of the 19 year old’s mother, and met the baby for the first time. I saw a mother with her three daughters and her newborn grandson, happy to be together. Despite all the hardships they had endured, they were happy – for they were a family/whānau a unit, whose bonds and whakapapa have kept them together despite all manner of adversity. I saw the baby, lying on his mother’s chest, snuggled up, loved and contented and I thought 'that is the only place he belongs'. Just before I left, my client’s mother said: “My daughter was very depressed when they took her first baby from her. I don’t think she would have made it through if they had taken this one as well.”

I reiterate Ngahiwi Tomoana and Des Ratima’s sentiment of “not one more baby to be taken by the state”. We need radical change, and a complete overhaul of the current legislation and operational system, not different versions of the same tired old broken model. We need an independent review of the Hastings case. We also need a Royal Commission of Inquiry established to inquire into these cases, and to give the survivors an opportunity to air their stories, to feel the validation of the nation, and to feel supported.

There is a Hikoi planned for July 30. Let's get out and walk in support of our mothers, our babies, our sons and daughters. Come on New Zealand: Wake up and smell the injustice.

Janet Mason (LLB, LLM) is a senior lawyer specialising in constitutional and public law, and based in Wellington. She also has a Bachelor of Social Sciences with a double major in Psychology and Philosophy. Logic was one of her favourite subjects. She also owns and manages a cattle farm in Fiji in partnership with her father.

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