Allegations that specialist and sworn evidence filed in the Family Court to support children’s removal from their mother was reckless, misleading, and in bad faith, could see a psychologist and social worker face landmark action

A damning submission to the Family Court reads like a script from a legal drama. The author who is a barrister who can’t be identified under Family Court reporting restrictions, skewers Oranga Tamariki for filing an allegedly fabricated report from a psychologist and a social worker which was used as evidence to support the uplift of a number of children from their mother.

The children were uplifted late at night by several police officers and an Oranga Tamariki social worker and were placed into separate police cars and taken to different locations. One of the children was a baby who had been solely breast-fed by its mother.

Oranga Tamariki has continued to rely on the expert reports, despite being advised for more than three years that they are defective, inaccurate and misleading.

In the submission, the barrister writes the mother’s case is both significant and exceptional because determinations already exist – from 2019 and 2021 – from “quasi-judicial professional bodies” which call into question evidence filed by Oranga Tamariki.

In short, complaints from health professionals have been lodged multiple times with the agency to support the return of the children, but these were dismissed by Oranga Tamariki.

Initially some of the children were placed with extended family, but all along they have been in the custody and care of the chief executive of Oranga Tamariki. They are now placed with non-whānau caregivers at some geographic distance from their mother.

The barrister is acting pro bono representing the mother. The submissions don’t stop at asking for the return of the children – they go a lot further.

Quoting the Oranga Tamariki Act 1989, the barrister alleges the psychologist and the social worker who drafted and then filed the reports may be criminally liable under the Act.

“The Act specifically contemplates criminal liability for social workers (and any person) who ‘furnishes any report to the court’ in bad faith or without reasonable care.”

And the agency itself is not immune in the barrister’s submissions.

“Oranga Tamariki is liable for the acts and omissions of its employees and such other persons it contracts or delegates work to, where that other person has acted in bad faith or without reasonable care.” Oranga Tamariki have not formally responded to the lawyer’s submissions.

Taken by the State

When Oranga Tamariki uplifted the mother’s young children, it was on a without notice order, based on an alleged breach of a safety plan. The social worker who applied for the uplift had been the mother’s social worker for a short time.

Before what is known as the on-notice application process (a Family Court hearing in which both parties get to table evidence in relation to the issue of custody) the Oranga Tamariki social worker commissioned a psychologist to prepare a report about the mother. But it was not the usual psychological report Oranga Tamariki often commissioned in such cases, known as a Section 178.

Instead, it arose from the OT social worker simply requesting the psychologist make an assessment on the mother. There was no formal, written brief.

Newsroom understands the psychologist wrote a report that supported concerns the social worker had about the mother’s intellectual functioning and her parenting ability.

Most of the psychologist’s findings were in direct contrast to assessments by numerous other health professionals including doctors, midwives and community social workers, some of who had been in contact with the mother throughout her life, due to a childhood health diagnosis. They all strongly disagreed with the determination the mother wasn’t fit to parent her children.

A lawyer claims the Family Court was provided with incorrect and misleading reports. Photo: Cass Mason

Multiple complaints were laid, including to the New Zealand Psychologists Board, the Social Workers Registration Board and the associated Oranga Tamariki office.

The claims alleged the psychologist’s report commissioned by the OT social worker was incorrect and, among other things, “biased and unfair”, and that it “focused on information from unqualified people”.

Health professionals who support the mother say the report did not provide an accurate description of the mother’s support network, her wrap-around services, the mother’s family, and failed to include vital professional information relevant to her situation.

Importantly, it was alleged the psychologist had written a report on the mother’s parenting ability “under the guise of examining her intellectual disability”.

The Professional Conduct Committee of the NZ Psychologists’ Board would eventually make its findings earlier this year, and determine the report to be so defective that the prominent psychologist has been sanctioned and a review of the psychologist’s competence to continue practising in New Zealand is to be carried out by the NZ Psychologists’ Board.

The Social Workers Registration Board’s Professional Conduct Committee recommended the Oranga Tamariki social worker be supervised.

In the court submission, the barrister argued to the Family Court that sworn evidence filed by Oranga Tamariki, and put to the court to support the children’s removal, was ‘wholly unreliable and wrong’.

Newsroom understands a landmark criminal case against the social worker and a civil case against the agency and the psychologist and social worker, personally, could now be on the table, although the matter is not currently before either civil or criminal courts.

“Criminal liability is contemplated under section 188 because the intent and act of providing a report to the Court knowing it to be false or reckless as to its accuracy, with the additional knowledge that a report could be relied on to remove children from a family unit would be unacceptable to the New Zealand public… a breach of duties under the Oranga Tamariki Act 1989 at the very least, ” the barrister says.

This case also calls into question other cases in which the psychologist and social worker have submitted reports to support the uplift of children from their parents.

Newsroom understands Oranga Tamariki has relied on the psychologist at the centre of this case for a number of its other cases, and there is at least one other case where this psychologist’s OT-commissioned report was used to support a child removal at Family Court level, and then relied on again in an appeal of that decision to the High Court..

Health professionals and community services who have complained are so concerned they believe any cases that involved either the OT social worker or the psychologist need to be reviewed to ensure that the same behaviour has not occurred.

Sanctions and supervision

Following complaints about the conduct of the psychologist in assessing the mother and the conclusions reached in her report, the Professional Conduct Committee (PCC) of the Psychologists’ Board will conduct a review of the psychologist’s competence to practise.

After its earlier inquiry, the PCC concluded that the psychologist’s assessment of the mother’s intellectual functioning and parenting, and her report, fell below accepted professional standards for psychologists and did not demonstrate the required level of competence.

There remains conflict over exactly what kind of report the Oranga Tamariki social worker had commissioned. Newsroom understands when the PCC requested some raw material on specific tests the psychologist had conducted, either no raw material existed for that test or it was “blank”.

When the social worker informed the psychologist he was submitting the psychologist’s report to the court as part of the custody case over these children, the psychologist’s lawyer told Oranga Tamariki the assessment was not consented or completed for use in custody proceedings.

However the PCC did not accept that the psychologist did not realise the report could be used in court.

Newsroom understands any further legal situation (both substantively and procedurally) will be uncharted territory, particularly for the Family Court.

The social worker

After the uplift, the mother with the support of community health professionals complained to the Social Workers Registration Board about the conduct of the Oranga Tamariki social worker.

The SWRB’s Professional Conduct Committee made its recommendations to the board that the social worker should receive mentoring in ‘effective and appropriate communication’, ‘critical and reflective practice’ and ‘reflection on his own practice’. It also said there appeared to be issues relating to the social worker and his use of Oranga Tamariki line management and legal support.

The committee recommended his work also be supervised by the board.

The social worker appealed the committee’s power to make recommendations to the board to the High Court. His appeal was dismissed which means the recommendations for his supervision still stand.

One of the health professionals involved in the complaints said in her more than two decades as a social worker it was one of the most “blatantly obvious cases of unfair and unjustified behaviour” she had seen and wants a review of the process Oranga Tamariki uses to engage other professionals to provide reports such as the one commissioned in this case.

The big problem

Despite multiple complaints since 2018 Oranga Tamariki, still referred to and relied on the psychologist’s report as recently as the middle of this year.

The mother’s barrister,has informed the court Oranga Tamariki social workers and lawyers “continually” deny any fault with the reports submitted by the social worker and the psychologist that the Family Court rely (and relied on) to make its decisions about what is best for the children.

The barrister has told the court that Oranga Tamariki had been put ‘on notice’ and the lawyer had written to the agency’s lawyer in July to warn that its reporting and evidence filed in support of the case was “seriously inaccurate”. The barrister did not receive a response and when plans for the children were reviewed – after the barrister had outlined the concerns – OT social workers continued to refer to the psychologist’s report.

The barrister has since filed the professional bodies’ inquiry findings with the Family Court as part of an updating memorandum, and Oranga Tamariki has been served with that document. Oranga Tamariki have made no response – formally or informally – to the barrister regarding the psychologist’s report, nor the allegations of civil and criminal liability against its employee or contracted psychologist.

The barrister has described Oranga Tamariki’s continuing reliance as “extremely concerning” and “reckless”.

When it comes to the mother of these children, her oldest children are still in state care and have never been transitioned back to her. The youngest was transitioned back to the mother’s care but is still subject to a support order under section 91 of the Oranga Tamariki Act.

The barrister says emphatically that her client’s children were never in need of care and protection as defined under the law, the evidence filed in court by the social worker was misleading and the without notice application for interim custody was unnecessary and unjustifiable. The social worker “carried out or intended to carry out his responsibilities in bad faith” and “without reasonable care” the barrister alleges.

Generally, when evidence filed in support of an application for without notice orders is found to be defective, all directions and orders that flow from that point are then considered to be a “nullity”, if the same evidence is relied on in an on-notice application, a substantial miscarriage of justice may have occurred.

But unlike a civil case, where the transfer of the legal title of property could be affected, or a criminal case, where a prisoner can be released or a sentence reduced, the Family Court cannot simply undo the damage Oranga Tamariki have caused this mother and her children.

The barrister adds there are “serious questions” to be tested in the Family Court and the High Court and describes this case as important not only for the mother and children at its centre, but also for all other children and mothers who may find themselves in her client’s position one day, or who have suffered a similar experience at Oranga Tamariki’s hands.

Following a major review of Oranga Tamariki, the Minister for Children, Kelvin Davis, has announced ‘without notice’ uplifts would now rarely be carried out by the agency.

(This article has been updated to clarify that the Social Workers Registration Board’s Professional Conduct Committee recommended the Oranga Tamariki social worker be supervised, rather than ‘ordered’ that.)

* Made with the support of NZ on Air *

Melanie Reid is Newsroom's lead investigations editor.

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