An orchestrated litany of uplifts
The Ombudsman's report to Parliament on the children's ministry's taking of babies is scathing of its misuse of the law and treatment of families caught in its routine use of 'uplifts'. Tim Murphy reports.
The latest damning inquiry into Oranga Tamariki finds that in 100 percent of cases investigated by the Ombudsman the ministry used its most extreme powers as a routine way to remove babies, many of them Māori.
The inquiry, by the Office of the Ombudsman, is the fourth following Newsroom's revelations in June last year of an attempted 'uplift' by Oranga Tamariki of a newborn boy at Hawke's Bay Hospital.
It looked back two years before that June 2019 case and in 74 of the 74 cases of baby removals it inspected, the ministry had applied to the Family Court for the draconian 'without notice' orders to take babies from parents.
All 74 cases.
The 'without notice' provision is supposed to be the final option in cases of urgency where a baby is at serious risk and all other options have been tried.
Chief Ombudsman Peter Boshier's report presents a litany of failure by Oranga Tamariki, saying in three quarters of the cases the ministry had more than 60 days to prepare for the baby's arrival, hold meetings with whānau and iwi, seek ministry legal officer input, consult with hospitals and hold Family Group Conferences but did not do so.
He accepts applications were made because ministry staff had serious concerns for pēpi (babies), but it was essential staff understood and followed the law. Instead, OT failed its obligations under New Zealand and international law.
The report finds, among many criticisms:
- it used the last resort of 'without notice' court orders as its routine practice in these cases. Some ministry staff told the inquiry "applying without notice was the expected practice". Boshier says: "This is in spite of the Act and case law mandating it to be rare and as a last resort."
- urgency and the need for 'without notice' applications were "created through the ministry's inaction and lack of capacity to follow its own processes in a timely and effective way"
- there was no specific operating guidance on the use of 'without notice' applications and staff training material included inaccurate advice - a "serious failing"
- failure to undertake the ministry's own checks and balances "severely compromised the quality, robustness and transparency of the Ministry's decision making. This is particularly concerning because of the wide-reaching and coercive nature of the ministry's powers and the overwhelming impact the use of these powers can have on individuals and their whānau
- in three-quarters of cases studied there was no evidence its staff had, as required, sought legal advice from Oranga Tamariki solicitors. "This is entirely incompatible with the ministry's own expectation."
- in most cases, staff swore affidavits saying no other option was available and the matter was urgent when evidence showed this not to be so, and
- for cases of 'subsequent children' from mothers who had had an earlier child removed, OT tried to reverse the onus of proof to make parents prove they would not be a threat
Boshier flatly declares the Oranga Tamariki decision making practices in the two years covered by his inquiry to be "unreasonable".
"The evidence I have considered did not demonstrate that the ministry consistently met the objects and principles of the Act and the obligations under international law."
Since Newsroom's inquiry, and OT's own inquiry into the Hawkes Bay incident, the ministry has changed its practices over how it seeks what are known as Section 78 'without-notice' removal orders from the Family Court. OT also says it has made extensive commitments to work with iwi and whānau in cases involving Māori babies.
However, Boshier's report says only two of the nine child protection offices his staff visited had the new specialist Māori, kairāranga positions. "The ongoing barriers to effective partnership and improved engagement is, in my view, exemplified by the fact the kairāranga initiative has not been rolled out across the country.
"There does not appear to be an agreed national strategy to employ more kairāranga and even senior Māori managers at the ministry did not agree on whether it should be a role within the ministry or if it should sit with iwi."
On the cases studied from between 2017 and 2019, the Ombudsman says: "I consider the failure of the ministry to consistently plan early for the safety and wellbeing of pēpi to be an enormous missed opportunity ... That this opportunity had not been appropriately engaged is, in my view, a serious failing of the ministry."
The report says Oranga Tamariki staff found external professionals did not understand their work as social workers. "Such tensions appeared to influence the ministry's limited information sharing and involvement of external professionals in the assessment and decision-making process."
Some of those professionals told the Ombudsman's Office OT staff had a "culture of professional arrogance and mistrust". Third parties, such as hospital staff, raised concerns "about the impact of systemic or institutional racism".
Boshier declares: "The insular nature of the ministry's practice and limited external accountability evident in many of the cases I examined raises concerns about the quality of social work practice overall.
"In my view, this has fuelled the public criticisms of the ministry and, in particular, the perceptions of an underlying bias in the ministry's assessment and decision-making."
When the Newsroom video story broke in June last year, Oranga Tamariki denied it was overusing the 'without notice' Family Court applications to remove babies and said they were only sought in cases of immediate danger or risk to the baby.
Alison McDonald, OT's deputy chief executive, services for children and families, South, told Newsroom the reporting on the details of the Hawkes Bay incident "is a total misrepresentation of our work. Uplifting a child is always a last resort, and we only take this step when a court determines that a child is at risk of harm.
"Our duty is the safety of children and we are relentlessly focused on this.
"All of these situations are complex, and we are committed to working with parents and families and a range of professionals to fulfil our duty to keep children safe.”
All 74 cases over the two year period occurred under the watch of current OT chief executive, Grainne Moss, who started in the role in August 2016.
On Thursday afternoon, Moss responded to the Ombudsman's report by welcoming Boshier's recommendations "that will help guide our further work in this area to improve our practices when newborn babies need to be brought into care".
She said the report looked at cases up to June 2019 but OT was "pleased to be able to provide evidence of real progress since the Ombudsman's investigation concluded".
The practice changes introduced in November, after its own damning assessment of the Hawkes Bay 'uplift', meant all court applications for uplifts would be on notice to give family a chance for a say before a judge made a decision.
Oranga Tamariki says the number of babies taken into care fell from 440 in 2018 to 356 last year and 220 this year and the Section 78 court applications were less than half the previous year.
While not acknowledging the public outcry in the middle of last year and three subsequent reports as a contributor to those falling numbers, Moss said: "While the ministry had already seen positive change in the way babies came into care, the Ombudsman's opinion is constructive because it gives a guidance and timeline for further work.
"Change is hard and it takes time."
Boshier has required OT to provide him with quarterly updates on its compliance with his recommendations, beginning in November.
June 11, 2019: Attempted uplift video story, NZ's Own Taken Generation, is released on Newsroom
June 19, 2019: A broad inquiry by the Chief Ombudsman, Peter Boshier, is announced
Nov 7, 2019: an internal investigation into the attempted uplift finds numerous failures
February 3, 2020: Whanau Ora releases its damning report into the Hastings uplift attempt
June 9, 2020: Release of Children's Commissioner review into “heart-wrenching” experiences of Māori mothers at the hands of Oranga Tamariki.
July/August 2020: The Waitangi Tribunal Oranga Tamariki Urgent Inquiry will look into why there has been such a significant and consistent disparity between the number of Māori and non-Māori children being taken into state care under OT.
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