After an outcry over Oranga Tamariki’s uplifts of children, the Government proposed to repeal a much-criticised part of the law – but there has been little obvious progress, while work on supports for families has been quietly delayed

New Zealand’s chief children’s advocate says he is “mystified” by the lack of progress on repealing part of a controversial law believed to have contributed to a spike in Oranga Tamariki uplifts.

Plans to provide extra support for families at risk of having another child taken by the state have also been quietly delayed by six months.

The “subsequent child” provisions of the Oranga Tamariki Act, which mean a parent who has had a child removed permanently from their care in the past must effectively prove they are fit to keep a new baby, came in for heavy criticism in the wake of Newsroom’s reporting on the attempted uplift of a Hastings newborn in 2019.

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The Government announced last August it would repeal parts of the legislation, with Tracey Martin – Children’s Minister at the time – saying “some children may have been unnecessarily traumatised and kept apart from their parents” as a result of how the law had been interpreted.

An Oranga Tamariki review had found the rules were confusing, could encourage decisions based on historical circumstances, and shifted the onus of proof to parents.

Martin said the provisions would be maintained for cases where a parent had been convicted for the murder, manslaughter or infanticide of a child in their care, but removed in cases where a parent had a previous child permanently taken into care.

The Government had said the repeal would be in a broader amendment bill to be introduced to Parliament in 2021 – but there has been no sign of any such legislation to date, while related work to provide greater support to families with a child taken from their care has been quietly delayed by six months.

While the Cabinet paper outlining the repeal plans said the Children’s Minister would report back on additional support measures last month, the Oranga Tamariki website now states “officials will report back to Cabinet in September 2021 with proposals”.

Children’s Commissioner Andrew Becroft, pictured with Jacinda Ardern, says the subsequent child provisions of the Oranga Tamariki Act should be “consigned to the dustbin of history”. Photo: Lynn Grieveson

Children’s Commissioner Andrew Becroft, who has pushed for the full rather than partial repeal of the subsequent child provisions, told Newsroom he was “mystified” by the delay and would be seeking clarification for the reasons behind it.

“This piece of legislation was a pernicious, misguided and entirely counterproductive provision that should be consigned to the dustbin of history forthwith.”

A report by Becroft’s office concluded that while only a small number of removals had been made specifically under the law, it appeared to have “significantly influenced Oranga Tamariki practice” – a claim supported by a significant increase in the removals of babies immediately after its introduction.

Becroft had heard unconfirmed reports of parents “going underground” for fear of losing another child, meaning they missed out on immunisations and other state support.

Other safeguards within the legislation were sufficient to protect children from harm, he said.

“It was a clear recommendation in our report, a clear concern raised in the Waitangi Tribunal – I don’t know what the roadblock is, I can’t conceive of one and I’m keen to find out.”

Dave Hanna, director of Wellington social services agency Wesley Community Action, said there appeared to be wider disorganisation within Oranga Tamariki, potentially due to the ministry and Government waiting on advice from the ministerial advisory board established earlier this year.

“It inverted the whole ‘innocent until proven guilty’ [concept], you were guilty unless there was an exception.”

“So much is up in the air, so much of the system has got stresses and uncertainty, it’s really hard to know the lie of the land and where things are progressing on the work programme.”

Hanna said the social sector had long held concerns about the subsequent child provisions, which had created perverse incentives for families to avoid contact with the state system.

“It inverted the whole ‘innocent until proven guilty’ [concept], you were guilty unless there was an exception.”

The focus needed to be on intensive wraparound services for families at risk of having their children removed, such as the Mana Whānau programme run by his organisation and Lifewise.

Green Party children’s spokeswoman Jan Logie said the party had been opposed to the subsequent child provisions from the time they were first proposed, a stance which had been borne out by subsequent research and evidence.

Logie said the party supported Becroft’s call for the full, rather than partial, repeal of the provisions, with multiple reports having indicated the rules were “feeding a culture that sees families as a risk”.

Children’s Minister Kelvin Davis told Newsroom legislation to enact the partial repeal of the subsequent child provisions would be introduced in September, with Oranga Tamariki expected to shortly begin work on drafting the law change.

Davis said updates to the ministry’s operational policy and practice guidance for subsequent children would be implemented at the same time as the repeal process.

The extended September deadline had “enabled officials to undertake a collaborative development process in considering best practice options for supporting the parents and whānau of children in long-term care arrangements”, he said.

Sam Sachdeva is Newsroom's national affairs editor, covering foreign affairs and trade, housing, and other issues of national significance.

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