If we thought closed adoption was harmful the first time round, it’s back in the form of the euphemistic ‘Special Guardianship’, writes law lecturer Khylee Quince

Beyond the spotlight on child removals that has permeated our media, you may be wondering what the future holds for children taken from their families.

While eventual return to whānau is possible, it is by no means guaranteed, and in fact may never happen.

Since 2016, the ability of the Family Court to permanently terminate parental rights has increased, under the Special Guardianship provisions of the Oranga Tamariki Act 1989.

These reforms work alongside the related Subsequent Children provisions allowing for the removal of newborns from parents who have had previous children uplifted. These laws have been directly reproduced from the UK, where they have resulted in a doubling of newborn removals within eight years, and a mere 14 percent of uplifted babies being returned to their birth families.

Like many New Zealanders, you may be under the misapprehension that the era of closed adoption, and all of its associated traumas, had been put to bed at least a generation ago. For the most part that view is correct, but it rears its ugly head in the Special Guardianship provisions.

The practice of closed permanent adoption was, and is, anathema to tikanga Māori, Māori customary law.

In tikanga Māori, the practice of child-raising is a collective whānau enterprise, with siblings, grandparents, aunts, uncles and cousins tasked with providing for the care, safety, love, nurturing and education of children. Within the Maori social system, practices akin to adoption were and are common – with various tribal terms for such customs, including “whangai” and “atawhai”, terms sharing concepts of nurture, feeding or affirmation.

There are a number of reasons for the practice of whangai. Babies were commonly given to grandparents, to be educated in family and tribal knowledge and to care for elders. They might be gifted to infertile relatives, as an act of aroha, love and compassion. In a social system that was neither patrilineal or matrilineal, it was also common to give children to the kin groups that families were not living with, to strengthen those whakapapa, or family ties. In addition to these circumstances, sometimes necessity underpinned the practice – including the death of a parent, economic stresses or care and protection concerns surrounding the birth parents. Irrespective of the reasons, the decision to gift a child is one for collective discussion and consensus, and children invariably grow up knowing of the dynamic and maintaining relationships with their birth families.

The practice of Māori customary adoption has been explicitly excluded in New Zealand law since 1953, although of course that is merely a referral to the custom’s legal status, not its reality, which continues to this day.

The Western practice of adoption has operated alongside Māori customary adoption since the colonisation of Aotearoa. Adoption is a status that provides for the legal transfer of parenting rights and responsibilities from birth parents to adoptive parents. It prioritises and perpetuates the concept of the nuclear family, and the rights of parents as opposed to wider family. It is strongly connected to concepts such as legitimate birth and inheritance and in this system there is traditionally no room for multiple “parents.” This view persists on Oranga Tamariki’s current website, in which adoptive parents are assured that their “relationship to an adopted child is as it would be if they were your birth child.” And that is the great fiction of adoption – they are not in fact your birth child.

The law recognises two parts to parental rights over children – custody and guardianship. Custody is more commonly referred to as “day-to-day care”, and refers to where a child is living. Guardianship affirms parents’ rights to make important decisions about the care and upbringing of their children, including their name, where they live, and decisions about matters such as their schooling, faith and cultural identities. Birth mothers are automatic guardians of children they give birth to, as are fathers if they are living with the mother at the time of birth.

Adoption keeps those concepts together – with adoptive parents assuming sole custody and guardianship over the child – to the exclusion of birth parents. When children are placed in state care, their new caregivers may be appointed as additional guardians, or the court may appoint itself guardian, with Oranga Tamariki as its agent. Birth parents remain guardians unless removed by the court, so the child lives with caregivers, but parents retain some decision-making rights.

The harms of the closed adoption system are well documented. A Marsden funded project of Māori researchers from Te Wananga o Raukawa is documenting the harms caused by the closed adoptions of tens of thousands of Māori children between 1955 and 1985 – with researcher Ani Mikaere characterising the severing of whakapapa and relationships as a form of intergenerational violence. In 2017, Mikaere asserted that the disconnection from whānau is “almost the worst possible thing you could do to a Maori person.”

Despite common perception however, closed adoption never went away, although the terminology has changed to hide its continuation in a society that has since fallen out of love with the practice. While the language of “adoption” implies secrets, shame, and trauma, the development of “open adoption” policies and practices from the 1970s onward promoted transparency and the maintenance of ongoing relationships, in order to reduce some of the reported impacts of closed adoption.

“Home For Life” is the new term for “permanent care” in the New Zealand child protection system, which can be instigated following the uplift or removal of babies or children by Oranga Tamariki. There are two ways in which carers with whom children have been placed can become “permanent caregivers” as defined in the Oranga Tamariki Act 1989. They can have parenting and guardianship orders made in their favour under the Care of Children Act 2004, and since 2016 they have the ability to apply for a Special Guardianship Order (SGO) under the Oranga Tamariki Act.

An SGO is available where the court finds that the conduct of the other guardians (usually birth parents) forms a pattern of behaviour such that the child’s welfare is “being seriously threatened as a result” and this is interfering with the caregivers’ ability to exercise their day to day care or guardianship responsibilities. There must be previous or existing disputes, and other dispute resolution options have been exhausted. Such claims have included caregiver concerns about irregular or “interfering” contact with birth parents, concern over behaviour during and after contact, and conflict over matters including schooling, appearance, travel and day-to-day care.

An application for an SGO is made by the caregivers to the Family Court. The court is required to inform the parents, and they will ordinarily be involved in the process and decision making before orders are made, with wider whānau. The assigned social worker should work with the parties to prepare a plan to present to the court – and this plan must consider the interests and relationships of whānau, hapu and iwi, and the maintenance of whakapapa links and whanaungatanga/kinship obligations.

The SGO process should be a last resort and the threshold of “seriously threatened” wellbeing maintained as an extremely high barrier before the granting of an order that operates as a full and final termination of parental rights without consent. It is anathema to the Oranga Tamariki Act rhetoric of strengthening whānau, recognition of whakapapa and whanaungatanga and the requirement to view the child in the context of the wider whānau, hapu and iwi groups. Those tikanga concepts are all about connection, while Special Guardianship is about disconnection.

If we thought closed adoption was harmful the first time round, closed adoption 2.0 in the form of the euphemistic language of ‘Special Guardianship’ has the potential to cause further catastrophic harm to children and their families. From July 1, an additional factor has been thrown into the mix – the requirement for the Crown (through Oranga Tamariki and the Family Court) to demonstrate a “practical commitment to the principles of the Treaty of Waitangi.” These principles include the duty of active protection – towards Māori law, custom, whānau and aspirations to self determination. This provides a real opportunity to address some of the wrongs of the past, and ensure that they are not revisited upon Māori children and their whānau in our futures. It remains to be seen whether Oranga Tamariki is up to the challenge.

Khylee Quince is Associate Head of School, Director of Māori and Pacific Advancementin the law school at Auckland University of Technology.

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