‘Reverse uplift’ foster parents still waiting to hear from OT

The foster couple at the centre of a Newsroom video investigation ordered removed from our website by the High Court are hopeful a Court of Appeal ruling means they finally hear back from Oranga Tamariki, who have been giving the couple the “silent treatment”.

“We’re still in limbo. Our lives can’t continue until this is all finished. We just want it all resolved,” the foster father says.

Newsroom’s long-running coverage of the case known as the “reverse uplift” involves four young children who were taken from their “forever home” with the foster couple and placed with extended whānau they had had limited contact with, in a different region of the country.

Whether the children remain in that place, with that family group, or if they have been split up and rehomed, remains unclear as OT refuses to confirm to Newsroom what it says is personal information.

As a result of the investigation, then Minister for Children Kelvin Davis ordered an immediate halt to all reverse uplifts.

However, less than 48 hours after the story was published, an injunction was granted to remove the video investigation, and two other written stories on the case, at the behest of the Government’s top lawyer, Solicitor General Una Jagose.

Newsroom then faced a three-and-a-half-year legal battle that ended with last week’s Court of Appeal judgment quashing the injunction and allowing the publication of the reverse uplift investigation.

The three stories, including the video documentary, are now restored to the newsroom.co.nz site for the public to read and watch.

Newsroom’s investigations editor Melanie Reid, who led the investigation, said the appeal judges’ decision showed the importance of holding Oranga Tamariki to account in this case.

“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.

The Court of Appeal finding left the foster couple “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.”

‘It eats at you’

In 2022, Chief Ombudsman Peter Boshier released an inquiry into the case that backed the findings of Newsroom’s investigation – in a report that lambasted Oranga Tamariki’s practices and treatment of the foster parents. Newsroom covered this in another extensive video investigation, Breaking Bad Practice.

With the Ombudsman’s report on board, the foster couple submitted a letter to Oranga Tamariki through their lawyers seeking damages by way of compensation over the child protection agency’s failures towards the couple and the children placed in their care, and reimbursement of costs and lost earnings.

The couple have spent tens of thousands of dollars and hundreds of hours fighting Oranga Tamariki in and out of court in an attempt to maintain contact with the four siblings, to no avail.

They had also rearranged their lives to take on the children in what was promised to be their “forever home”, costing the couple hundreds of thousands of dollars, only to have that promise broken by Oranga Tamariki and to suffer the heartache of losing the children.

The couple have been trying to get an answer from Oranga Tamariki for almost 18 months on the letter they sent, but have been told repeatedly OT cannot give them a timeframe for a decision.

The child protection agency has now stopped replying to the couple’s emails altogether.

“It eats at you. It overtakes your life, because you’re messing with lawyers and trying to get responses off them and it consumes you. It really does,” says the foster father.

“We want to know what they’re going to do, if they’re going to honour our claim and reimburse us for anything – all the legal costs, what we’ve lost, hardship.”

‘No firm timeline’

The couple’s lawyer’s letter to Oranga Tamariki was submitted in November 2022.

For the past 18 months, lawyers for Oranga Tamariki has variously replied to repeated attempts by the couple to seek a decision with: an apology for missing an email sent by the couple’s lawyer; an apology for not replying to an email sent by the couple’s lawyer; and informing the couple six months after it had received their letter that the agency had not noticed one of the claims in the letter, which meant they had to take more time to review it.

Most recently, Oranga Tamariki legal counsel has informed the couple’s lawyer it would no longer communicate directly with the couple after the Ombudsman’s office was copied into an email the couple sent OT.

“They [OT] sent an email to my lawyer saying that they weren’t going respond to me anymore for involving an external partner. And I’ve not heard anything back from them since, which is probably a month now,” says the foster father.

The couple are worried if they continue battling OT through lawyers they could lose their house due to the mounting legal bills.

Correspondence seen by Newsroom confirms the decision on the foster couple’s claim has been sitting with Oranga Tamariki’s chief executive, Chappie Te Kani, since July last year – a period of nine months.

(An edited timeline of the correspondence between Oranga Tamariki’s legal department and the couple’s lawyer is at the end of this story.)

Newsroom asked Oranga Tamariki why it was still unable to provide a firm timeline for a decision on the couple’s letter, and what was taking the chief executive so long to respond to the couple’s claims.

Oranga Tamariki’s Rachel Leota, whose title is ‘deputy chief executive service delivery’, replied: “We can confirm we are in correspondence with the [foster couple’s] representatives about their letter, and for that reason we will not be providing further comment.”

The Ombudsman’s findings

Chief Ombudsman Peter Boshier began his investigation after two complaints against Oranga Tamariki were laid – one by the foster carers and one by the whānau the children were placed with – following the reverse uplift.

In order to facilitate the urgent reverse uplift, Oranga Tamariki decided the children were at risk, levelling a number of accusations against the foster couple, which included an “unwillingness” to support the children’s engagement with their whānau and Māoritanga.

The Ombudsman’s report supported the foster couple’s complaints that they were set up to fail, and it described the accusations against them as “unreasonable” and “clearly wrong”.

Boshier also called out Oranga Tamariki for a long list of questionable behaviours, including submitting misleading and unbalanced information to the court, flawed decision-making around moving the children, and contravening the Oranga Tamariki Act.

The foster couple told Newsroom they have never recovered, emotionally or financially.

“We’ve probably spent close to $20,000 just to try to see the kids. And then, to get into court for the last time they wanted $25,000 for the four-day hearing. We pulled out, because there was no guaranteed outcome of seeing the children. If they’d said definitely we’d get to see them, we probably would have spent the money. And that’s without all the other court cases and everything else we’ve been through. For over a year now, we’ve been trying to get that compensation. And we’ve probably spent another $10,000 or $15,000 on lawyers’ fees for that as well up to now.”

The couple said at first, following the release of the Ombudsman’s report, OT’s chief executive Chappie Te Kani contacted them and told them he would look into the case and “make things right”.

“But nothing ever happened. He never contacted us again after that. It just goes quiet, you never get any response,” says the foster father.

Where are the children now?

The four siblings lived in their “forever home” with the foster couple for more than two and a half years until they were taken by OT but the couple told Newsroom they hadn’t been allowed contact with the children since mid-2021 – almost three years.

They still think about the children every day, and their pictures and drawings continue to adorn the walls of their home.

“We’re hoping they’re still happy and they’re thriving where they are. But we wouldn’t know. We don’t even know if they’re still together, to be honest.”

In 2022 Newsroom published a follow-up investigation that revealed the whānau home the siblings were shifted to included a man who had previously been subject to complaints of a sexual nature.

The man lived on-and-off at the property to which the tamariki were transferred, and had been subject to two complaints made at separate times concerning highly sexualised behaviour towards a minor.

Both complaints were raised by a young girl related to the man, and one of those involved inappropriate touching.

The response from Chappie Te Kani at the time that investigation was published said while he could not provide specific details, “I can confirm we are continuing to work alongside the family and I am assured that the children are safe from harm. I will continue to seek these assurances as long as they are in my care as the chief executive of Oranga Tamariki.”

Newsroom has approached Oranga Tamariki more than once in the past year to ask whether the children are still living in the same whānau placement they were moved to in 2020, and whether all four siblings were still living together.

Its latest response said that without a privacy waiver, Oranga Tamariki would be unable to provide Newsroom with “personal information” without breaching the privacy of the parties involved.

What does OT do now?

After then-minister for children Kelvin Davis ordered a halt to reverse uplifts and a review into the practice following Newsroom’s 2020 investigation, Oranga Tamariki updated its policies with extensive new guidance for staff around children placed with non-kin caregivers.

The update reminded practitioners to work with all parties together, including whānau, hapū, iwi, caregivers and te tamaiti (the child), and that the best interests and wellbeing of te tamaiti must be centred in their decision making. The guidance also reminded staff that any transitions of children between caregivers must be handled with care and in accordance with the agency’s transition policy.

“We only change the existing care arrangement if there is a significant change in the circumstances of te tamaiti or their caregiver,” it stated.

However the foster parents say they still hear regularly from other foster carers that this policy is not being followed by Oranga Tamariki staff.

“We know it’s still going on. No matter what they did straight away by stopping reverse uplifts, it’s still being done. And some of the stories now, it’s heartbreaking,” says the foster father.

The reverse uplift investigation followed the groundbreaking Hastings uplift video Newsroom published in 2019, NZ’s Own Taken Generation, which led to four major inquiries and an urgent Waitangi Tribunal hearing into the state’s practice of taking newborn babies from their mothers.

At the time, three Māori babies were being uplifted a week.

The following month the Government made a law change with the introduction of section 7AA of the Oranga Tamariki Act, which lays out the ways in which the state needs to uphold the right of tamariki Māori to be connected to their culture and whakapapa as part of its Te Tiriti commitments.

The current government is now looking at repealing section 7AA, which has left many fearful of further loss of the unique rights, needs and voices of tamariki Māori.

At the same time, a statement on OT’s Practice Centre section of its website promises a “strengthening” of the content so it “more completely reflects our commitment to practice framed by te Tiriti o Waitangi, based on a mana-enhancing paradigm for practice, and drawing from ​Te Ao Māori principles of oranga to support mana tamaiti, whakapapa and whanaungatanga.”

As always, it is the children who get caught in the middle of this merry-go-round of policy change.

Vivienne Martini, a highly experienced retired social worker, told Newsroom good social work practice puts the individual needs of every child front and centre, not the latest philosophy.

“Why is it that other critical safety industries, such as aviation, health and justice, have applied principles of evidence based scientific analysis and assessment to improve practice and reduce the incidence of tragic outcomes, but our biggest child protection agency remains stuck in a ‘reactive’ and potentially unsound practice model?”

The foster father in this case says in an ideal world the four siblings would have been placed with family in the first instance.

“But they weren’t. Oranga Tamariki were happy for us to have them and we changed our lives so we could look after them. Then they go and traumatise the kids again by moving them again,” he told Newsroom.

Despite everything, the foster father says he still has some fight left in him. “I swore to the social workers when they said they’re taking the children, I said ‘we’ll hold every one of you to account for what you’ve done.’ And I won’t give in until I have done that.”

Edited timeline of the foster couple’s correspondence with Oranga Tamariki

18 November 2022: The foster couple’s lawyer sends a detailed letter to Oranga Tamariki seeking damages and reimbursement.

8 December 2022: OT to couple’s lawyer: “We acknowledge receipt of this letter and advise that we are undertaking careful consideration of the matters that you have raised. We will be able to provide you with a further update before the end of the year.”

8 December 2022: OT to couple’s lawyer: “I note that we are now in a position to expect that we will be able to provide a substantive response to your clients’ claim in early to mid February.”

13 February 2023: Couple’s lawyer to OT: “Our clients are still awaiting a response. It has been almost 3 months. Please now urgently respond.”

13 March 2023: Couple’s lawyer to OT: “We wrote on 18 November 2022 regarding Oranga Tamariki’s failures towards our clients and the children placed in their care. Those failures have only been perpetuated by the lack of response, some four months on. Our last correspondence has not even been acknowledged.”

13 March 2023: OT to couple’s lawyer: “My apologies for not responding to your last correspondence. This was my oversight. We endeavour to complete [the assessment] as soon as we can. I am not currently confident that we will have an outcome of that process by 27 March, although it is not out of the question. It is certainly not ‘months’ away.”

23 March 2023: OT to couple’s lawyer: “We had hoped that we might be able to provide you with a substantive response by 27 March. Unfortunately we will not be in a position to provide our substantive response by Monday. We continue to work towards approval of the outcome of our internal process by the Chief Executive.” 

27 April 2023: Couple’s lawyer to OT: “Are you now able to provide a substantive response, or otherwise update us on progress?”

3 May 2023: OT to couple’s lawyer: “We are engaging further with Crown Law…and hope to be in a position to provide our substantive response following that. 

17 May 2023: OT to couple’s lawyer: “I can advise that we continue to engage with Crown Law regarding your clients’ claim.”

18 May 2023: Couple’s lawyer to OT: “We understood a substantive response was not “months” away. It’s been two months since then (and six months since our letter). On any view, this is taking too long. Please can you now provide a timeframe for a substantive response at least.”

25 May 2023: OT to couple’s lawyer: “We acknowledge that our response is taking longer than we would like. There are various reasons for that, many of which I’m not able to disclose. I can advise that [one of your clients’ arguments] was identified late in the process of seeking Crown Law advice. I can assure you that we continue to work on our substantive response to their claim, but I cannot give a firm indication of a timeframe.”

1 June 2023: OT to couple’s lawyer: “We are now in a position to finalise our internal assessment and seek approval of communication of the outcome of that assessment by the Chief Executive. It’s difficult to provide a firm indication of timeframes of that approval process – but the matter is progressing internally.”

13 July 2023: OT to couple’s lawyer: “We are now completing our advice for the Chief Executive who is the decision maker in this matter.” 

17 July 2023: Couple’s lawyer to OT: “Are you please able to now provide a timeframe as to when the Chief Executive would be able to decide on this matter? This has taken well over 6 months now.”

11 September 2023: Couple’s lawyer to OT: “My colleague has requested a timeframe for a substantive response to our letter but has not received a reply. This followed numerous attempts to follow up by us. It has been almost 10 months since our letter. Please ensure a response is provided to us by 19 September 2023. If it is going to take longer than that, please provide a firm timeline for this.”

14 September 2023: OT to couple’s lawyer: “I am sorry that I appear to have missed your colleague’s email to me. Oranga Tamariki does intend to substantively respond to your clients’ claims, and will do so as soon as we are able. As previously advised, the Chief Executive is the decision maker in this matter. I remain unable to provide a firm [timeframe] at this time.”

11 March 2024: The foster couple email the OT lawyer and OT’s chief executive directly asking for an update. They copy in the office of the Ombudsman.

11 March 2024: OT to couple’s lawyer: “You have granted me consent to communicate with [your client] directly, but…it is unlikely to be appropriate for me to communicate directly with him…in correspondence involving other parties, i.e. the Ombudsman. I intend to revert to responding to you directly…rather than communicating with your client directly. I am still not yet “authorised” to send you the response because I do not yet have instructions to do so. I am seeking those instructions from senior leadership.”

March-April 2024: The foster couple send one to two emails per week to OT requesting an update, but receive only automated responses.