Family Court processes are again in the spotlight after a baby was ordered by the court to be removed from his mother and whānau and placed with a relative.

Karakia took place at a marae before the mother and whānau of a nine-month-old baby left for a Hastings court room to attend a judicial settlement conference.

The whānau is attempting to prevent the baby from being uplifted from his mother and placed in the care of a great aunt.

This conference followed an almost week-long sit-in with five generations of the whānau sharing care of the baby at their marae in protest at the ‘without notice’ order.

The whānau moved in to the marae with the baby and his mother last Saturday and intended to stay there until they were satisfied the baby would remain with his immediate whānau.

Two judges had ruled the baby was to be placed in the care of the great aunt, but a third judge brought the parties together on Thursday to seek an agreed way forward.

Media were not allowed into the hearing, and cannot report what occurred, but whānau supporter and spokesperson Jean Te Huia said after two hours the families came to an agreement and the baby would remain in the care of his mother with conditions.

“It’s the first night since the 12th of July the family can sleep peacefully knowing the baby’s not going to be taken.”

“This is not a judgment, this is a family resolution. I believe the family have got a good outcome. Today has been a big learning for me and for the family I think it’s given them a sense of justice that something good will come of this.

“What this highlights to me is the ability for the system to work with families to make it less traumatic for everybody. I believe we’ve got a horrific type of law at the moment which allows ‘without notice’ orders to apply to families and the ability for families to respond to that is difficult. I think families go through a lot of unnecessary stress and we don’t understand the processes that are involved. Today’s shown me that there are other ways to support families,” Te Huia told Newsroom outside the court.

“It’s sad that families have to play this out in a courtroom, and I believe the marae is the place to do that, and while I think we should move to that process, I think that will happen.”

Refusal to hand over baby

This agreement ended a battle to keep the baby with his mother and whānau, which began last week when the relative took the action in the Family Court.

A judge approved an application and ordered the baby be cared for by the great aunt until a ‘directions conference’ where all parties could be heard on September 6.

This meant the baby would have lived for seven weeks away from the whānau and mother until their evidence could be presented.

The whānau applied to have the orders discharged, questioning the assertions of the other party, however this was rejected and the order upheld.

Over the weekend the whānau told Newsroom they were deeply concerned the baby – who had no involvement with the children’s ministry Oranga Tamariki – would be taken from the people he knows.

Jean Te Huia contacted local kaumatua Ngāti Kahungunu chair Ngahiwi Tomoana and Hastings district councillor Henare O’Keefe for support and had been assured police would not be coming to the marae to uplift the baby.

On Monday Newsroom reported on the sit-in and by that afternoon the court had arranged the judicial settlement conference for Thursday.

One affidavit to take a child

For four years Newsroom has covered stories that show the ways in which the Family Court system can operate in custody disputes, and questions are again being asked about how one affidavit can be used to decide the fate of a child through the Family Court.

At issue is the fact that one person’s affidavit can result in a child being removed – whether or not everything within the affidavit is accurate.

Te Huia is renowned for her involvement in the landmark 2019 Hastings uplift case, in a Newsroom story that caused five inquiries, including an urgent Waitangi Tribunal hearing.

Since the Newsroom story was published on Monday, she says she has been contacted by dozens of people saying their children have been taken using the same method – where someone makes an urgent without notice application on the basis of a single affidavit, which a court can then accept and enforce.

“This is such an important issue, the whole country needs to be able to respond and have a conversation about this. I had 56 texts and phone calls yesterday from people in similar situations.”

She is also calling for the creation of a group of Māori lawyers who are experts in family law to be on call to help in these cases, and wants it funded by Oranga Tamariki.

“So you can ring an 0800 number and instantly get someone with the knowledge to be able to help. Because we were stuck and didn’t know what to do.”

Top QC raised issues two years ago

This issue of without notice applications being approved on the basis of one person’s affidavit was raised by prominent QC Dr Rodney Harrison in an article following the Hastings uplift video in 2019.

“To make matters worse, when a without notice order has been made, the Family Court then fails to provide an adequate opportunity for a prompt automatic review of that order. The mother of the uplifted baby is left having to apply back to the Family Court to try and overturn the order. Even if she is able to obtain legal representation, the work pressures on the Family Court are such that it may take months to get to review the merits or otherwise of the original order.”

This lengthy process then has a knock on effect, said Harrison.

“By then the best interests of the child…will be treated as paramount, so that the merits of the original uplift application and decision will be treated as secondary, or even irrelevant. The current system is therefore not remotely self-correcting.”

He said the Family Court should operate in the same way as the High Court when it comes to without notice orders.

“By contrast, without notice applications to the High Court are approached differently. If the High Court makes a without notice order, it will almost invariably direct that the case be brought back before the court within a week or so, for review of the order with all parties involved. There is no reason why the Family Court could not be doing this with without notice uplift orders, if it has to make them.”

Bonnie Sumner is part of the Newsroom Investigates reporting team

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