Stories about children being removed from their homes as part of family law separation processes also cast the spotlight on the attitude of the state towards removal of children in other realms of New Zealand law, writes the University of Otago’s Dr Emily Keddell

Changes to the newly re-named Oranga Tamariki Act 1989 over the past two years as part of child protection reforms have been aimed at earlier placement of affected children into permanent care arrangements. The resulting reforms direct a lot of attention and resources towards the foster care system, but not as much on what happens before children get there.

Better quality of foster care once children are in care is certainly important, and the many efforts to improve the permanent care system in these changes by increased support and standards for carers, increased stability and participation for children, and more resources for children transitioning out of care are warmly welcomed. But even a perfect care system is not as good as remaining in one’s own family if possible. Foster care, even when adequately resourced, is not without its harms. The recent videos released through Newsroom show particularly distressing removals. It may be in the public imagination that in situations of abuse and neglect a child would instead run with relief into the arms of the police or social worker, but this is very seldom the case.

In some situations, the reactions of children removed following child protection concerns are indistinguishable from those removed in response to parental care orders, particularly in cases where there is urgency. This points to some fundamental cracks between the espoused emphasis on children’s views and wishes, and the nature of state intervention in family life.

When removal is necessary, if at all possible, it should happen at a time of day when the child is most likely to be able to be calmed and comforted.

They don’t always align, because children’s views may differ from what is felt to be in their ‘best interests’. In these cases, people – social workers, police people and judges – are called on to make decisions based on their perceptions about the risk of harm, and the degree of that risk in the future, while trying to at least give some weight to children’s wishes.

This is no easy feat. Sometimes children’s views can’t be ‘listened to’, because the adults involved really do know that the risk the child is exposed to will damage them. On other occasions, children’s views are downplayed because the professionals involved can’t tolerate the degree of risk to the agency or their own reputation, rather than the child themselves. In others, the child’s family may contain a number of positive family relationships but one that is downright harmful, so removal is at best a mixed bag that protects them from that harmful person, but also damages other positive relationships.

There are seldom simple answers.

When removal is necessary, if at all possible, it should be planned, and happen at a time of day when the child is most likely to be able to be calmed and comforted. Having the right people around to do it, and even having other family members help facilitate this, are important ways to help protect against emotional trauma for children. Social workers generally aim for this, but this ideal process is not always possible.

For some, notifying their child to Oranga Tamariki becomes, in their view, an option of last resort. Ideas about risk to children gain traction and are used as weapons, making it incredibly difficult to ascertain the real level of risk to a child.

To further complicate matters, children involved in parenting orders and orders under the child protection legislation are not two entirely separate populations; some parents are involved in both the family court system for parenting issues under the Care of Children Act, and with Oranga Tamariki under the newly renamed Oranga Tamariki Act. Anecdotally, this cross-over group seems to be growing, fuelled in its growth by family court changes that limit the avenues available for parents unhappy with their parenting care arrangements. For some, notifying their child to Oranga Tamariki becomes, in their view, an option of last resort. Ideas about risk to children gain traction and are used as weapons, making it incredibly difficult to ascertain the real level of risk to a child.

In whatever system removal happens in, it is seldom without harm.

As Thomas Morton, a US child protection specialist provocatively argues:

“Removing a child to foster care violates the most basic trust existing in a child’s life that, whatever else may happen, the caregiver will be physically constant… Once the child is removed, the child remains suspicious about the permanence of the caregiver even if returned home. If it happened once, it can happen again. I am not arguing that removal is never necessary, rather that it must be balanced against the certain harm created by removal.”

The fact that removal carries known harms means that the decision to remove a child can almost never be considered a comparison of the current family situation with a uniformly positive alternative. Both the actual removal, the damage to family connections, plus the variable provision of foster care and instability in the foster care system, mean that foster care cannot be considered a guaranteed better option. This means that far from a family (risky) and foster care (safe) decision frame, it is always more of a weighing up of harms and benefits. Then there is the question of what happens next.

Children also have a right to family life.

Conversations about removal draw attention to the aims of the child protection system more broadly. Is the purpose of the system to support families to retain the care of their children where possible, or to permanently remove them as soon as problems become apparent? Child protection systems are always balancing these objectives, but we appear to be moving further towards the latter, which tends to result in large numbers of children coming into care, overwhelmingly from families at the margins of high deprivation and multiple complex problems (as is happening in the UK). Is this fair, without first offering the resources that might assist with those problems? Does it adequately balance an adult’s right to parent their own children with children’s right to be protected from harm?

This simplified dichotomy leaves out a third right: children also have a right to family life. The felt loss of this, even in strained family circumstances, is a feature of research into the perceptions of people once they leave care. This is why the focus should not be on creating immediate permanency in care arrangements, (apart from in a few extreme cases) but first on return home if possible, as soon as possible. The change in focus to early permanency underpinning these legislative changes is therefore a contested one. It’s also likely to result in a greater proportion of the finite resources available to go into foster care, while supportive family services get less, a point well made in this article.

These complex issues raise a number of ethical questions relating to the balance of resources and the direction of policies that have life-changing effects. We need ongoing public debate on these matters, as well as good evidence regarding the effects of the changes as they unfold.

It may be my dire predictions are unfounded – I’d be happy to be proven wrong.

Leave a comment