Communities may be less trusting of an independent children’s monitor if it seems too closely tied to an education agency, Cabinet ministers have been told

The Government has pushed ahead with plans for a new Oranga Tamariki watchdog despite Māori leaders recommending a delay to reconsider the best approach, newly released documents show.

A children’s charity and the Green Party have also joined Children’s Commissioner Andrew Becroft in expressing concerns about the plan to set up the independent children’s monitor within the Education Review Office, instead of the Office of the Children’s Commissioner as originally proposed.

Earlier this month, Becroft told Newsroom creating an autonomous Crown entity for the monitor was the best way to ensure “a watchdog … that can bark”.

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A Cabinet paper from Sepuloni proactively released last week has shed further light on the Government’s decision, showing a group of Māori leaders were concerned about the decision to make ERO the host agency for the monitor.

The Kāhui Group, set up by the Ministry of Social Development to provide advice on the monitoring process, told officials “that if the monitoring function is perceived to be too closely affiliated with ERO this may impact on the willingness of communities to engage with and trust the monitoring agency”.

The group asked whether a decision on the host agency could be postponed so alternative options could be considered, but Sepuloni said that could be debated as part of the select committee process for the legislation.

She also argued the proposed departmental agency model was unlikely to be seen as closely linked to ERO, citing the example of the Office for Māori Crown Relations – Te Arawhiti, which sits within the Ministry of Justice.

‘Clear separation’, but room for collaboration

ERO understood the clear separation between it and the new monitor, as well as their differing functions and mandates, but the two could still work together when in the best interests of children.

Sepuloni said the change of heart on the best operating model had come after thought was given to “the inherent tension between the policy objective for the monitor to be a trusted advisor to ministers and the independent role of the Children’s Commissioner”.

Despite the efforts to provide sufficient independence, there was still a risk that some could perceive the proposal as placing the monitor too closely to decision-makers and the public service.

The Kāhui Group preferred the Crown entity model as proposed by Becroft, but were “accepting” of the departmental agency model.

The Cabinet paper mentioned particular concern that ministers could force the monitor to stop particular pieces of work and damage public confidence.

Sepuloni said the legislation would address that concern by stating ministers “may not stop or prevent the statutory officer undertaking any monitoring activity [they] deem necessary”. While they could make the monitor look into a particular area of interest, they could not be directed to prioritise a ministerial request over their independent work programme.

Green Party MP Jan Logie says stories from the Royal Commission into abuse in care has shown what can happen without independent oversight of the system. Photo: Lynn Grieveson

Tracie Shipton, chief executive of children’s advocacy charity VOYCE – Whakarongo Mai, told Newsroom there seemed to be a conflict between the compliance approach taken by ERO and the rights-based model which was best practice for the child protection system.

“It feels to me that it’s the strangest place of all to have it sitting … it just gives it no teeth in my view, it waters it down.”

Shipton was also concerned about how independent the monitor could be “when it sits in the bowels of another organisation”, and believed the Office of the Children’s Commissioner was the most appropriate home given its expertise.

“It feels to me like children in care, who are a specific group of people, who have specific needs, at every juncture we’re watering down what we provide for them.”

The Office of the Children’s Commissioner and the Kāhui group have indicated concern that the bill does not presently clarify that the minister responsible for monitoring must not also be the minister responsible for Oranga Tamariki. The Legislation Design and Advisory Committee has advised against legislatively constraining the Prime Minister’s ability to assign portfolios. I also consider it would be unlikely for any prime minister to assign two roles, that are clearly in conflict, to a single minister. However, I recognise that this is a risk.

Green Party children’s spokeswoman Jan Logie said she did not believe the Government’s approach would provide sufficiently independent oversight of the system at a time when it was sorely needed.

“The time of gathering voices and different views from people who we choose we want to hear from, and then making the decision ourselves and it’s for the best of everyone, that model has been proven to fail Māori and to fail the country.”

“Critical to enabling the functioning of care protection in our society is public confidence, and independent monitoring is one of the key ways that you can help to rebuild trust.”

Logie said it was not appropriate for a minister to be able to “force their agenda” on the monitor, and they should instead be required to make a sufficiently strong case for a watchdog to agree to a particular line of inquiry.

Citing a tension between the roles of an advocate and a monitor made no sense when the work “should go hand in hand”, while she also supported Becroft’s concerns about the proposed Māori advisory group.

“The time of gathering voices and different views from people who we choose we want to hear from, and then making the decision ourselves and it’s for the best of everyone, that model has been proven to fail Māori and to fail the country.”

The stories coming out of the Royal Commission into abuse in care were “telling a very strong story of what can happen when there isn’t clear independent oversight of our child protection services”, Logie 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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