Taken By The State

QC questions legality of uplifts

A leading QC is backing concerns over Oranga Tamariki and the Family Court's processes for removing babies from their mothers.

Rodney Harrison, QC, a public law specialist who challenged and overturned an urgent and without notice uplift of a baby in a landmark 2010 case, told Newsroom the practice the children's ministry is using of seeking urgent Family Court orders, without notice to parents and whanau, suffers from systemic flaws.

A Family Court judge will often get emailed one social worker's view and be presented with a digital form in which he or she ticks boxes to approve a supposedly 'urgent' uplift of a child.

Importantly, once a Family Court custody order is given to Oranga Tamariki, it can take months for a parent who can afford legal representation to be able to challenge that order based on one-sided information. Harrison says the High Court has a standing practice when it issues "without notice" or ex parte orders that the other party can seek a hearing within a week to challenge them.

The Oranga Tamariki and Family Court processes seemed flawed.

"It is a fundamental requirement for all without notice applications that the applicant must disclose all relevant legal and factual information, whether favourable or unfavourable to its case. This applies equally to Oranga Tamariki child uplift applications.

"It seems pretty clear that Oranga Tamariki is routinely not complying with this fundamental obligation, and equally that the Family Court is failing to insist on compliance," Harrison said.

"It appears from the Family Court rulings that I have viewed, that the Family Court uses a template to record its uplift decisions. The template lists legal considerations in advance and the judge ticks a box if he or she agrees. The template acknowledges that it is a serious thing to do a without notice uplift. It is very easy if you simply tick a box, to not give adequate serious consideration to the individual case.

"While I accept that in these cases the Family Court judge is in a difficult position, the most anxious consideration has to be applied to without notice uplift decisions. We need to be better satisfied that what the law requires in this area has in fact been observed in the individual case, as against simply paying lip service to the governing principles."

Compounding the problem, Harrison said, an affected parent did not have a reasonable way to try and challenge the order.

"To make matters worse, when a without notice order has been made, the Family Court then fails to provide an adequate opportunity for a prompt automatic review of that order. The mother of the uplifted baby is left having to apply back to the Family Court to try and overturn the order. Even if she is able to obtain legal representation, the work pressures on the Family Court are such that it may take months to get to review the merits or otherwise of the original order.

"By then the best interests of the child, assessed in its new Oranga Tamariki placement at the time of any review, will be treated as paramount, so that the merits of the original uplift application and decision will be treated as secondary, or even irrelevant. The current system is therefore not remotely self-correcting."

By contrast, without notice applications to the High Court are approached differently. if the High Court makes a without notice order, it will almost invariably direct that the case be brought back before the court within a week or so, for review of the order with all parties involved. There is no reason why the Family Court could not be doing this with without notice uplift orders, if it has to make them."

 A further concern was the secrecy surrounding the Family Court process.

Harrison said: "What I believe has been happening until now is that in each baby uplift case the details are usually suppressed. As a consequence, we have not been getting access to the big picture revealing the systemic flaws in the system, which are now emerging.

"Overall, I do not believe that either Oranga Tamariki or the Family Court are in general adhering to the basics of what should occur with 'without notice' applications and orders, given the seriousness of what is at stake for both baby and mother."

Rodney Harrison QC

Harrison was involved in 2010 in the landmark case known as CLM v the Ministry of Social Development & Ors, where the ministry obtained a without notice interim custody order through the Family Court placing an unborn child in its custody.

The mother sought a declaration MSD and the Family Court had breached her entitlement to natural justice under the Bill of Rights Act 1990 or at common law, and compensation for that breach.

A number of decisions were made by various judges, which included a judgment in her favour discharging the interim custody order, and culminating in a judgment by Justice Rhys Harrison declaring that her right to natural justice had been breached, and awarding her costs.

He ultimately found: "…an application for a custody order without notice should only be made in special or exceptional circumstances given its inherent departure from the fundamental requirements of natural justice and the underlying right to be heard. The power to make such an order must be "used with great caution and only in circumstances in which it is really necessary to act immediately". T

The judge went on to criticise the formulaic or template decision-making by judges in the Family Court, who use a standard form when making a decision on such orders. In this particular case, the only sign of the judge having any real input in the order was the brief handwritten reference and some circles around paragraph numbers.

Justice Harrison said then of Oranga Tamariki (then known as Child Youth and Family):

"CYFS was proposing a draconian form of intervention; not only would the mother and child be separated within 24 hours of birth, but thereafter the mother's access would be confined to one supervised hour weekly (this limitation was driven, as noted, by financial constraints, not by a concern that longer access would be detrimental to the baby's welfare).

"The biological bond would be severely if not irreparably damaged by the state's forceful intrusion in removing the baby from her mother. Such a result would directly contradict the legislative direction that those exercising statutory powers are to be guided by the principle that, wherever possible, the relationship between a child and her family should be strengthened and maintained."

The teenage mother in the Hawkes Bay case has stayed with her baby in a maternal care facility after Oranga Tamariki abandoned the 'uplift' at 2 am one morning. The Newsroom video story is here.

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