Taken By The State
Many state ‘uplifts’ of babies could be illegal: lawyer
Court action is planned to challenge the legality of 'without notice' uplifts of what could be hundreds of babies by the children's ministry, Oranga Tamariki.
Hundreds of children and their whānau could be affected if the ministry's legal tactics are ruled unlawful.
The legal action will focus on the way Oranga Tamariki wins permission from the Family Court to take children into state care, without giving the parents the chance to challenge its version of events.
Such 'ex parte' orders, done without notice to the mother or whānau, breach the family's right to natural justice, lawyers say.
In the past three years 803 babies have been 'uplifted' - and many will have been taken after Oranga Tamariki used the 'ex parte' approach to the court. If that tactic is deemed unlawful, hundreds of cases could be affected.
Janet Mason, the lawyer for a teenage mother at the centre of an Oranga Tamariki attempted uplift at Hawkes Bay Hospital, says numerous women have come forward complaining about the Oranga Tamariki legal tactics. She says the ministry should in almost all cases have been aware of the arrival of a baby through the pregnancy and therefore able to seek a Family Court order with plenty of time for the whānau to be advised in advance and to appear before a judge.
In a commentary today for Newsroom Mason writes: "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.
"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."
Mason says: "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?"
Mason intends to challenge the ex parte actions by Oranga Tamariki, likely to be through asking the High Court to declare the mothers' right to natural justice under the Bill of Rights Act or at common law has been breached.
She is reviewing the evidence provided by Oranga Tamariki social workers to the Family Court in such applications to determine if they had also acted in bad faith. "Officials are protected under the State Services Act from liability for their actions, unless they have acted in bad faith. This is a high threshold, and we need to see the files."
Mason says, "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."
A declaration by the High Court that the Oranga Tamariki actions had been unlawful could be enough to prevent such uplifts without notice in the future.
Associate Professor Khylee Quince, of the University of Auckland law school, said in most court cases, parties have the right to respond to allegations made about them in court. This reflects the principles of natural justice – that people have the right to be heard and to defend themselves from claims made about them.
In rare cases the court may make an order without notice to the other party, but only in emergency circumstances where the risk of immediate and irreparable damage is likely to result from not granting the order. "Because the granting of a without notice ex parte order necessarily breaches the due process or natural justice rights of the party who has not been heard, the court should consider these applications very carefully, and act on clear, verifiable evidence. Acting solely on the evidence of the party making the claim is inherently risky," she said.
"In recent years, the Family Courts have faced an increasing number of ex parte applications and the proportion of successful orders is also rising. Many of these are made by judges on “e-duty”, meaning they consider applications electronically, in an office rather than a courtroom, and without hearing from any parties face to face. This process reflects the pressure the Family Court is under, but it should not follow that the decision-making process or outcomes sees a lowering of the very high threshold required to establish that a real emergency exists, on strong objective evidence."
A separate application for an urgent hearing of the Waitangi Tribunal on the issue of uplifts of Māori babies is planned by lawyer David Stone.
Auckland law professor Mark Henaghan told Newsroom there were serious legal flaws in Oranga Tamariki's Family Court action in the Hawkes Bay Hospital case.
Henaghan says it’s doubtful that the custody order should have been granted in the first place, without hearing from the baby’s parents.
The Oranga Tamariki application for a custody order on May 2 was made “ex parte” or without notice to the baby’s whānau.
“An ex parte application is an exceptional proceeding where there is no time to let the other side be heard because of the risk of undue hardship and harm. In this case the application was made on the 2nd May but not executed until the 6th May.
“A four-day gap shows the situation was not urgent. The baby was safe in the hospital with the mother and her supportive whānau. There was plenty of time to serve the intent to remove on the mother and father and give them time to respond and show the safety measures for the child and mother that were in place.”
Professor Henaghan told Newsroom the High Court has emphasised that the evidential threshold for removing children without notice to the family is high given the devastating effects on families of even temporarily removing children from their environment.
“This case highlights flaws in the overall system that is being used to make decisions about the removal of children from their parents. The Oranga Tamariki Act, formerly known as the Children, Families and Young Persons Act, has a provision in it requiring consultation with a care and protection resource panel when investigations are carried out in regard to children who may need care and protection. It appears that such panels have not been resourced under legislation, and therefore are not available.
"The reason for them was that these decisions are so important, that it is unfair to place the burden of them on a social worker. There needs to be a check and balance process involving others to ensure that the right decision is being made," Henaghan said.
"Secondly when the matter goes before a judge it is largely done on the papers, what is known as e-duty. This makes it very difficult for a judge to fully understand the nuances of the situation when working from a piece of paper which only gives one person’s view of what is happening. In my view this overall system of decision-making in a matter that is so important as removing a child from a parent needs to be completely overhauled. I support the move by Janet Mason to take the matter further to the High Court to review the lawfulness of the current system.”
Three inquiries have been launched after Newsroom published a video story showing the circumstances of the attempted uplift at Hawkes Bay. Oranga Tamariki is conducting an internal review by its chief social worker and a person approved by Hawkes Bay iwi Ngāti Kahungunu. The Children's Commissioner is looking at the wider practice of uplifts of Māori babies aged up to three months and the Chief Ombudsman's office is investigating the uplift policies and practices.
The young mother and her baby remain in a care facility for young mothers. The newsroom video story is here.