The Stolen Generations: Oranga Tamariki ‘Uplifts’ and the Systems that Permit Them
By Nithya Narayanan
Earlier this year, a Newsroom documentary captured an attempt by Oranga Tamariki to enforce a court order to take a new-born away from its 19-year-old Maori mother. The taking – which was widely euphemized to “uplift” by the media – shocked New Zealanders all around the country. Following the release of the video, journalist Aaron Smale wrote an opinion piece for Stuff, outlining the trauma that both he and his birth parents have lived with since he was taken from them in 1971. In his article, Smale advocates for the use of the term “Stolen Generation”, a term which references the theft of indigenous children in Australia, Canada and the United States. “Myself and thousands of other children weren’t taken or lost,” he writes, “we were stolen.”
News of these uplifts begs the question: what is the scope of Oranga Tamariki’s legal authority to take children away from their parents? Section 39 of the Oranga Tamariki Act 1989 allows a District or Family Court judge to issue a “place of safety” warrant to an Oranga Tamariki social worker or the police. Such a warrant authorises those agents to enter a home to conduct checks. To obtain such a warrant, Oranga Tamariki would need to satisfy the judge that there is good reason to suspect the child is being ill-treated, neglected, abused or harmed, or to suspect that this is likely to happen. The judge must also be convinced that there is no alternative way of protecting the child. Section 39 (3) of the Act only permits removal of the child from its parents in serious cases. To take the child away, the social worker or police must have a “reasonable belief” that removing the child is necessary. The level of risk required for removal is not defined as abuse or ill-treatment, but rather as “neglect, deprivation, or harm”.
While several public figures – including former Families Commissioner Christine Rankin – have criticised the media for framing this as a Maori issue, the reality is that it is Maori who are disproportionately affected by ‘uplifts.’ According to Merepeka Raukawa-Tait, chair of the Whanau Ora Commissioning Agency, a Maori child is six times more likely to be uplifted than a non-Maori child. The number of Maori babies being removed from their mothers soon after birth has jumped more than 50 per cent since 2016 to 160, while the figure for non-Maori has only shifted slightly – from 118 to 121. According to Raukawa-Tait, the uplifts have been going on for “decades” but have only been brought to public attention post publication of the troubling Newsroom footage.
Perhaps even more concerning, however, are the reports of abuse. An investigation into abuse in state care found that more than 220 children were harmed in 2018. Of that number, 36 were sexually harmed, 182 physically harmed, 35 neglected, and 83 emotionally harmed by caregivers, family members, other children and Oranga Tamariki staff. The majority of that number were placed with families they had remained with – or returned to – after state intervention; families purportedly supported by Oranga Tamariki. Maori children, who make up 59 per cent of those in state care, were disproportionately abused. When asked about the findings in March, the ministry’s chief executive Grainne Moss failed to provide more detail about the number of Oranga Tamariki staff involved. However, figures obtained under the Official Information Act (OIA) show that in the July – September quarter last year, there were three instances where Oranga Tamariki staff were found to have physically harmed a child in care. There were another three instances of physical harm in the October-December quarter. In addition, there was one instance of emotional harm and another instance of sexual harm caused by staff members. Oranga Tamariki refused to release details in its OIA response about what action – if any – had been taken against those staff members.
What is being done in response to these reports? One key change has been the insertion of s 7AA into the Oranga Tamariki Act. The new section imposes specific duties on the chief executive of Oranga Tamariki to “recognise and provide a practical commitment to the principles of the Treaty of Waitangi”. These include setting measurable outcomes for Maori children who come to the attention of the department; having regard to the whakapapa of Maori children and the whanaungatanga responsibilities of their whanau; and making an effort to develop strategic partnerships with iwi and Maori organisations and authorities. In July 2019, a Hutt Valley court granted a woman custody of her six-month-old grandchild in one of the first applications of s 7AA.
Multiple reviews have also been launched. Ombudsman and ex-Family Court judge Peter Boshier has launched an independent investigation into the steps that Oranga Tamariki takes when removing new-born children under a court order. Boshier’s office received a number of complaints in relation to Oranga Tamariki, though this involved nothing as serious as the content of the Newsroom video. The inquiry, which is expected to generate a report by the end of 2019, aims to look at the broader practices and processes of Oranga Tamariki in uplift cases. A second, “thematic” review initiated by Children’s Commissioner Judge Andrew Becroft will focus specifically on policies around Maori children aged 0 – 3 months. The Commissioner has not ruled out expanding the review to include older children. A separate review – launched by Minister for Children Tracey Martin – will investigate the particular Hawkes Bay incident that was the subject of the Newsroom footage.
Prime Minister Jacinda Ardern said, in early July, that the Government is “making significant changes to Oranga Tamariki”, noting that a considerable amount has been invested into the agency in the last budget. However, at the end of the day, the uplift of children is a human issue that demands a human solution. Its effects, on a personal level, are enormous. As Smale notes in his article, the removal of a child from its parents is psychologically devastating, and engenders a “legacy of harm” which can continue many years into the future. The circumstances under which it can occur should be carefully circumscribed by the law, and protections put in place to ensure that it remains extremely rare.
Image sourced from Stuff.co.nz: stuff.co.nz/national/politics/114724381/tracey-martin-on-uplift-controversy-oranga-tamariki-believed-the-child-was-in-danger
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