Newsroom has won the right to re-publish a video investigation into Oranga Tamariki uplifting children, after it had to be removed from the site by order of the the High Court.
In an important decision for media, the Court of Appeal has overturned the High Court judge’s order, found Newsroom did not identify vulnerable children in breach of the Family Court Act and ruled the content of the investigation was of significant public interest.
The judgment said: “The story was unquestionably one of significant public interest as evidenced by the impact it had on the Minister [for Children, Kelvin Davis] and the suspension of the practice of reverse uplifts.”
The Court of Appeal also quashed a $13,500 costs order against Newsroom from the High Court and instead awarded costs against the Crown for this latest action.
A pending criminal prosecution of Newsroom in the Christchurch District Court, spurred by a Crown Law referral of the video to police, has awaited the result of this appeal.
Newsroom’s investigations editor Melanie Reid, who led the inquiry with Bonnie Sumner, said the appeal judges’ decision underlined the importance of the story and the value of holding social workers and the children’s ministry accountable in this case.
“We knew that we had not identified the children and we were not going to be bullied by Oranga Tamariki and Crown Law.
“I am very grateful to our legal counsel for doggedly pursuing this on our behalf.
“We went all the way to the Court of Appeal because we felt we owed it to those little children and their foster parents…and we felt that Crown Law’s heavy-handed action had huge consequences for media freedom and against what we felt was clearly in the public interest.
“I felt strongly that Crown Law wanted to shut us down because it was trying to protect the actions of another government department, Oranga Tamariki, whose awful practice of these reverse uplifts was being exposed by our Newsroom investigation,” Reid says.
“To his credit, the minister at the time, Kelvin Davis, on seeing our programme stopped the reverse uplift practice immediately.”
The video investigation – and two stories associated with it that also had to be removed from newsroom.co.nz – will be available to view and read on the site when final legal issues are resolved in coming days.
The injunction, sought by the Solicitor-General Una Jagose after the investigation was published in November 2020, had been granted on an interim basis by Justice Francis Cooke. The video and associated stories have been unavailable to the public since then, despite Davis responding to it by ordering OT to stop such ‘reverse uplifts’.
Jagose had liaised with Newsroom over some changes she deemed necessary to the video under the law, but despite assertions of continued discussions, unilaterally broke that process off before seeking an injunction stopping publication.
Justice Cooke had also ordered Newsroom to pay $13,500 towards the Crown’s costs.
Separately, Crown Law referred the video to the police, who subsequently chose to lay a criminal charge against Newsroom in Christchurch for breaching the Family Court Act.
Oranga Tamariki and the Crown argued elements of the video breached the Family Court law by including identifying factors of four children involved in a removal of them by the children’s agency from a ‘home for life’ with foster parents and back to recently located whānau.
The law says media cannot reveal identifying particulars of vulnerable children in Family Court cases in any report of the “proceedings” of the court.
The case centred on whether the story actually reported any “proceedings” of the court and whether anyone who did not already know could have recognised or known the children from the reporting.
Newsroom said its investigation did not identify the children, who were not named or shown. The children and their foster parents’ faces were at all times pixellated and identities hidden. Newsroom had argued it was not a report of “proceedings” of the Family Court as the story reported developments beyond the court’s jurisdiction and outside its hearings. The investigation was clearly in the public interest as it led to political and systematic change in the way Oranga Tamariki removed children from foster placements.
At a one-day hearing in Wellington in October, a three judge panel of the Court of Appeal heard arguments from Newsroom counsel Tim Castle and Ben Keith and from Crown lawyer Kim Laurenson, for the Solicitor General.
Newsroom was supported by the Media Freedom Committee which represented other major NZ newsrooms, with its lawyer Robert Stewart arguing the injunction remaining would have a chilling effect on journalism.
In their judgment, the judges found the video investigation did in fact fall within the legal definition of “proceedings” of the Family Court. But crucially accepted, as Newsroom had argued, that there was no breach of the necessary second leg of the prohibition as it did not identify the children to anyone who had been unaware of their situation.
While Justice Cooke in the High Court had believed viewers or readers could put minor identifying matters together like a jigsaw to lead to the children’s identification, the Court of Appeal rejected that theory.
At the appeal hearing, Newsroom lawyer Ben Keith had quoted a UK decision that the jigsaw identification could be too loosely asserted and the risks overstated. The “working it out” approach in this case had been taken too far.
The Court of Appeal judgment, written by Justice Christine French on behalf of the President Mark Cooper and Justice Forrest Miller, said there had to be “an appreciable risk” of identification.
“If the information capable of identifying the children is already known to the audience, then it must follow that publication of that information will not breach [the section of the Family Court Act] because the reader or viewer has not learnt the information from the publication.”
It said the size of the rural community where the children had been living, and the four children’s very visibility there in their daily lives meant many of the features of the case had happened “in plain view” for local people. “They were self-evident.”
“In our view the community would have been aware of the critical features of the publications.
“To put it another way, we consider it unlikely the local community would have learnt anything more from the publications than what they already knew.”
The High Court judge’s fear that the town in the North Island to which the children were sent might not have seen many family groups like that arrive was not, in the appeal judges’ view, “necessarily well founded.”
“We conclude that although the publications amounted to a report of proceedings for the purposes of s 11B [of the Family Court Act], they did not contain any identifying information of the protected (or connected) persons as defined in s11C and therefore did not breach s11B(3).”
The Court of Appeal found the foster parents had rights in this case also. “Clearly too, the foster parents’ concerns about the way they were treated by Oranga Tamariki were valid and worthy of ventilation.
“The right of freedom of expression must encompass not only the rights of the media but also the rights of the foster parents to tell their story and the right of the public to hear it,” the decision said.
The foster parents themselves told Newsroom on Wednesday evening:
“We’re stunned. Apart from the Ombudsman’s decision, this is the first thing that’s gone right in this case.
“The practice by those social workers, it was disgraceful, it was disgusting. You don’t want to believe they think they’re above the law and treat people this way, but they do.
“We believed we were never allowed to speak up, that we would be penalised by Oranga Tamariki if we did. This judgment validates that we did the right thing by speaking up.
“Emotionally, financially, we’ve never recovered.”
Newsroom’s counsel Tim Castle said: “I was admiring of the courage of Newsroom to resist the attempts by the Solicitor General to close the story down and to contend on appeal that the High Court’s injunction must be quashed.”
The appeal court has now directed Newsroom to make the changes to the video and stories that we had offered to make at the time of the December 2020 High Court hearing, plus three further, minor amendments, before republishing.
This judgement is an indictment on the public service. A number of very bad decisions were made by a number of our collective employees. I won’t bother with the principal one… the idiotic decision to take the children away from their satisfactory foster home in complete misunderstanding of the legislation. That seems par for the course with Oranga Tamariki. The persecution of Newsroom, particularly the Crown Solicitor’s opinion, was just plain stupid. ( If I said what I thought drove it they’d probably call it slanderous and start pursuing me.) The way these government employees supported each other in trying to get their own way is not what they are employed for. Quite apart from the obviously traumatic effects on both the children and the original foster parents, what a shocking waste of public money. Have their department heads no understanding of accountability?
Well done Melanie and Newsroom for pursuing this. The Crown habitually takes advantage in such proceedings brought by the media and NGOs, using it’s seemingly unlimited resources (read: taxes) to crush community voices. There should be consequences for the officials concerned – a review of their decision making, perhaps by the Ombudsman – to ensure our continuing right to free speech.
Well said Judith.
With respect to your final query, one assumes departmental heads understand accountability but just thought that they would get away with it this time.
Can someone please clarify the issues here? There was a notable case where social workers carried out an “uplift” on the grounds that the mother (who I think was a drug addict) would have been incapable of taking care of the baby and had a history of multiple previous occasions of children having to be taken away. This provided a media furore and I think it was on the strength of this that the then CEO of OT (or was it CYFS then?) had to resign, despite it looking to me that the social workers were in principle putting the interests of the child ahead of those of other interested parties (and correctly, as it looked to me anyway).
Now we have what looks like the fulfillment of this policy coming to a head with social workers taking a child from a supposedly settled family environment. Although the social workers are being criticised here, surely they are just “the meat in the sandwich”? The pendulum seems to have swung from placing the child’s interests as paramount to giving more weight to the wider family. Is this not what we should be discussing? Not whether it is right or not for Newsroom to show its video?
Hi Peter – the first case involved OT being found to have acted wrongly in trying, forcibly, to remove a baby from its mother without considering alternatives adequately. It also was found to be common practice, remove first and ask questions later. The second case was OT social workers falsely telling a foster couple – who, with the four foster children had been told their care was a ‘forever home’ for the kids – that a court found them to be culturally inappropriate. The court made no such finding. That was a view arrived at by the social workers. Their behaviour throughout, once they determined ‘cultural inappropriateness’ was castigated by the Ombudsman ‘after’ the removal. The court of appeal now finds the actions of OT’s lawyers using Crown Law, and the decision of the Solicitor General to seek an injunction stopping Newsroom’s video running on our site, were wrong as we were not in breach of the Family Court Act, as they claimed. The other important finding was that the foster parents, not just Newsroom or the media, have a right under the Bill of Rights Act to have their complaints aired to the public. There are two strands of issues – both worth reporting. The conduct of the social workers in the latter case that you wonder about was, of course, the subject of the Newsroom video investigation and will now be aired again to give you full context.
I still think that these actions should also be seen in the context of the high-pressure environment in which OT, and before it CYFS, operate.
This organisation has been restructured about a dozen times. In the lead up to the first uplift media expose CYFS/OT was typically “in the gun” for failing to intervene early enough to prevent some shocking baby deaths in dysfunctional family environments. So what did the culture of the organisation do? It compensated by acting first and asking questions later in baby uplifts.
After that baby uplift story the organisation was under attack for acting too soon and failing to take into account cultural factors and the interests of the wider whanau. So what does the organisation do? It emphasises cultural appropriateness, an entirely defensible repositioning. And then it goes too far in this direction with the “reverse uplift”.
As you say, in both cases social workers were found to be in breach of the law. And why would social workers, professionals in their own right, deliberately (or otherwise) breach the law (and arguably common sense)? Because they are under huge conflicting external scrutiny and organisational pressures to perform the almost impossible task in the current cultural and political environment of satisfying both the interests of the child and those of the wider family and community.
This is not to excuse them, but to say that to depict this as a solely legal issue is to underemphasise the massive conflicting pressures and pendulum swings in scrutiny under which these people operate, much of it amplified by the fourth estate doing its job!
And in the first case the young mother was not a drug addict.
For a detailed overview of the first uplift case you raise, see the chapter on state care in the ebook published by BWB last year – see https://www.bwb.co.nz/books/a-question-of-adoption/ebook/
Well done Melanie and team. As my wife always said Melanie – your dogged determination to expose and right injustices is a blessing to all.
Wayne Ormsby- husband of midwife Ripeka.
Poor understanding of fundamental emotional human needs like ‘secure attachment’ , trust and bonding needs addressing in institutions like Orange Tamariki and in schools, where such vital topics take second place to sports performance. I’d like to see followup on how those children are doing in their new family placement. I adopted traumatised sisters decades ago. Stability is therapeutic but early trauma has impacts for life.
Thanks Frances. We are planning further followup stories tomorrow and in coming days.