Legality and 'disconnection' between Māori kids and whānau

5:06 pm on 23 July 2019

A law that allows state caregivers to become 'special guardians' of a child, and decide how much access they have to their parents, has come under fire from Māori lawyers.

A young boy sits in the corner with his head in his hands (file photo)

Photo: 123RF

They have said it goes against new legislation requiring Oranga Tamariki to protect a child's connection to their whānau.

Special Guardianship Orders allow caregivers to make important decisions for a child in their care such as where they go to school, where they live, and how much access they have to their parents.

Lawyer Tania Williams Blyth said it was almost like adoption, where a child could be permanently separated from their parents.

"It achieves a status for caregivers that is very similar to adoption because special guardianship is about disconnection."

There have been 143 Special Guardianship Orders granted under the Oranga Tamariki Act since 2016.

More than half of those involved Māori children.

Under new legislation which came into effect this month, Oranga Tamariki and the family court have a statutory obligation to protect a child's connection to whānau and whakapapa.

Ms Williams Blyth said Special Guardianship Orders achieved the opposite.

"That means at least 130 children have been disconnected from their whānau so there is a clear tension in the current legislation between special guardianship as against mana tamaiti [dignity], whakapapa [genealogy] and whanaungatanga [family connection]. That's an issue."

A caregiver can be granted Special Guardianship under two separate sections of the legislation.

Under section 110A the Family Court must be satisfied that the caregiver is unable to exercise their guardianship responsibilities due to the conduct of the parent, and the child's welfare is under serious threat.

But Lawyer Kiarana Tan said under section 113A the threshold was much lower.

"The parent [doesn't] have to have done anything wrong at all. All the caregivers have to prove is that they can provide a long-term, nurturing and secure environment for the children.

"The parents aren't necessarily being difficult parents."

For 75 percent of tamariki [young] Māori with a special guardian, that person is someone in their wider whānau

In a statement, an Oranga Tamariki spokesperson said a child's birth parents had the opportunity to oppose the application.

"Whānau have the opportunity to be involved throughout the process and they are entitled be involved in discussions about the needs of their tamariki. This includes within Family Group Conferences and the Family Court

"Parents can oppose a Special Guardianship application. In this case there will be a hearing in the Family Court to hear the views of all parties."

But Ms Tan said many whānau who were dealing with drug, alcohol, and financial issues, often would not show up at court to challenge the application.

She said once an order was granted, it could not be revoked - even if the parents were in a better position to care for the child.

"Say in a year's time their situation is different, they've cleaned up, and they say, 'Actually, we would like these children to come visit us in the weekend.' They have no legal right to be able to come back to court."

The challenge now falls on the Family Court to find a balance between a law that allows for special guardianship and another that seeks to protect a child's connection to whānau.

Ms Tan said it was yet to be seen how that would play out in court.

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