Failures without Consequences
How come, after numerous condemnatory reports, Oranga Tamariki chief executive Grainne Moss holds on to her job? Aaron Smale wonders if those harmed by her tenure aren't a big enough voting bloc
So, what happens when a government department breaks the law and breaches its own policies? Nothing, apparently.
The latest report on Oranga Tamariki in a blizzard of such reports is from the Ombudsman, Peter Boshier, and it’s possibly the harshest of them all. These reports sprang from Melanie Reid’s story showing Oranga Tamariki bullying a young mother to try and remove her newborn baby while she was in hospital in Hawkes Bay. Furthermore, the Waitangi Tribunal is currently holding an urgent hearing into the same issue. It’s becoming like a Netflix series with multiple episodes telling the same ugly story from multiple points of view.
All of the reports to date have been damming and consistently so, even though Oranga Tamariki chief executive Grainne Moss and minister Tracey Martin insisted – at least initially – that Melanie’s story was misrepresenting the issue and circumstances. If anything, the Ombudsman’s report confirms yet again that the situation in Hawkes Bay was not an anomaly but stark evidence of systemic failures.
At the heart of the Ombudsman’s report is the use of section 78 of the law that gives Oranga Tamariki the powers to remove a child without giving any warning. Boshier clearly points out a number of times that this power is conditional on Oranga Tamariki meeting certain criteria before it takes this drastic step. In all 74 cases he reviewed Oranga Tamariki failed in one way or another to meet those criteria. That’s not a minor slip-up. That’s a major screw-up. Not only are they not doing their job properly, they’re acting illegally.
Here's one example of what Boshier found: “It was apparent to me that the Ministry’s frontline staff did not understand the law and the requirement to make a section 78 application on notice, apart from in exceptional circumstances. It is unclear whether this was because of lack of guidance/training or poor processes, or a combination of the two. Notably, the incorrect use of without notice processes was not identified until the Ministry undertook its Hastings Practice Review in late 2019. I consider that the failure to understand the requirements of natural justice and Court rules is unacceptable for a state agency, particularly when the results are the removal of newborn pēpi from their parents.”
So, to paraphrase - a government agency doesn’t understand a crucial part of the legislation that it operates under. This part of the legislation was not some obscure clause, but was being used regularly to remove children without any warning and without giving the parents a chance to respond to the allegations against them. If you want a layman’s term for that, here’s one - kidnapping. The state does NOT have an absolute right to do anything its incompetent staff think they can get away with. It’s called the rule of law.
And if you want a picture of what that looks like, you can go back to Melanie Reid’s video. Or you can flip open the report from the Whanau Ora Commissioning Agency where one mother described her experience like this: “Armed police came with their guns to our house at 11 o’clock at night to do an uplift. It was very traumatising. Everything was quiet and peaceful. The child they wanted to take was safe and asleep in bed. There was no danger or anything that would justify why the police would barge into our home in the middle of the night, armed.”
I’ve yet to hear the police fess up to their unlawful involvement in this.
Boshier’s report found that these kinds of drastic removals without any warning were the default position taken by Oranga Tamariki. This was completely at odds with the legislation that Oranga Tamariki operates under. Boshier made this point repeatedly but here’s one example:
“The 74 case files reviewed demonstrated that without-notice applications for removal were routinely supported by the Ministry’s affidavits swearing that other options were not available, and that there had been no delay in making the application. However, the evidence before me suggests that there would have been minimal, if any, need for without-notice applications if the Ministry had applied appropriately its legislation and policies, which required it to have engaged with whānau, hapū, and iwi.”
His mention of affidavits is interesting because he suggests that these sworn statements by Oranga Tamariki staff didn’t stand up to scrutiny. This lines up with Melanie Reid’s reporting that these affidavits were often complete bullshit, and yet they were being presented before a court as evidence on which a decision about removing a child was being made. This raises questions of perjury and also raises questions about the courts that were signing off on these - what the hell were the judges doing when assessing what was clearly flawed and possibly dishonest “evidence”? Are they too lazy to ask a few more questions or express a shred of skepticism? As Boshier notes, the whānau being targeted often have very little capacity to advocate for themselves and so they were bulldozed over by Oranga Tamariki. The courts allowed this to happen and the judges who were involved in that failure need to take a serious look at themselves.
The latest response from both Moss and Martin - after they stopped attacking the messenger - is that they are making progress and the ministry has only been running for a couple of years and so needs time to bed in. Which is absolute bollocks, just like their attacks on Melanie Reid’s reporting were bollocks. They’re only making these changes because they were busted and exposed. If they’re not going to resign, the least they could do is apologise to Melanie Reid for attacking her professionalism with their dishonest spin.
The basis of the legislation that Boshier is talking about goes back to the report Te Puao Te Atatu – which was in 1988. That report was led by John Rangihau and was a response to Māori staff in the Department of Social Welfare raising concerns about institutional racism. The report was a milestone and led to an overhaul of the legislation that is still the basis of today’s current legal framework around child welfare. And that report’s language is echoed in both that legislation and Boshier’s report and several others.
Here’s one example: “The whānau/hapu/iwi must be consulted and may be heard in Court of appropriate jurisdiction on the placement of a Māori child; Court officers, social workers, or any other person dealing with a Māori child should be required to make inquiries as to the child’s heritage and family links.”
Those straightforward words were penned by Rangihau over 30 years ago and yet Grainne Moss and Tracey Martin apparently still need more time to figure it out. So why, despite numerous calls for their heads, are they still in their jobs? Well, sacking someone on the eve of an election is always problematic for a sitting government. You want to minimise the shit hitting the fan when you’re trying to show how competent you are, even when there’s a multitude of evidence to the contrary.
But I think the bigger reason is this - the group in society that is impacted by these failures is not a major voting bloc and so they can easily be thrown under the bus. Witness Helen Clark ditching the Closing the Gaps policy. The people Moss and Martin have victimised with their failures have next to no political power, so they get to keep their jobs. It’s hard to get the public or the media worked up about it because the kind of trauma these whānau have experienced at the hands of the state over generations is difficult for most people to imagine. They are constantly vilified by certain sections of the media and political figures. Or ignored.
And that’s the nub of it - it isn’t just the failures of Oranga Tamariki or its predecessors over the past 50 plus years that are the problem. It runs far deeper than that. As Boshier points out, those who Oranga Tamariki are dealing with do have complex problems and often that is intergenerational. Many of these social problems have an economic origin and yet successive governments have repeatedly failed in their economic policies. These whānau are the collateral damage that those successive governments have decided is an acceptable outcome from their policies, although they’ll deny any responsibility for those outcomes.
Jacinda Ardern makes lots of empathetic noises and comes up with vacuous slogans like “be kind” (Ellen Degeneres is proof that such a brand eventually wears a little thin). But what has her Government actually done that has had any real impact on those whānau who are in Oranga Tamariki’s sights? Bugger all. Judith Collins and co don’t even pretend to care about those at the bottom. For both parties these whānau are at best a peripheral irritation, particularly in the bubble and froth of an election campaign. To varying degrees over the last 30 years there has been an underlying assumption that the market can fix such problems as housing, employment etc and it’s individuals that fail and not the market, let alone government policy. Which is just as blinkered and stupid as the previous belief that the state could fix it.
For all the downsides of the global pandemic, maybe it offers an opportunity to have a reset and decide what kind of country we actually want to live in. Maybe it should be a country where we don’t have to sack those at the top of Oranga Tamariki, but we make them redundant instead. The only way to do that is by ensuring children at risk and the whānau they live in aren’t constantly teetering on the edge of disaster.
These reports are important but they are limited by their focus on the failure of the agency tasked with protecting children from harm. Oranga Tamariki sits in the justice sector grouping of ministries alongside the Ministry of Justice, Corrections, Police and Courts. Even if Oranga Tamariki was doing everything right, like Corrections they’re the ambulance at the bottom of the cliff. They’re not going to prevent people falling off it in the first place.
If there was any serious political interest in addressing the risks to children or reducing the prison numbers, then you’d hear more about addressing the increasing economic inequality that has escalated in the last 30 years.
Instead there is a deafening silence.
Aaron Smale is a freelance journalist and PhD candidate, researching Maori Children in State Custody.
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