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He Pāharakeke, He Rito Whakakīkinga Whāruarua – Pre Downloaded from www.waitangitribunal.govt.nz HE PĀHARAKEKE, HE RITO WHAKAKĪKINGA WHĀRUARUA Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz HE PĀHARAKEKE, HE RITO WHAKAKĪKINGA WHĀRUARUA ORANGA TAMARIKI URGENT INQUIRY W A I 2 9 1 5 W A I T A N G I T R I B U N A L R E P O R T 2 0 2 1 Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz ISBN 978-0-908810-99-4 (PDF) www.waitangitribunal.govt.nz Typeset by the Waitangi Tribunal Published 2021 by the Waitangi Tribunal, Wellington, New Zealand 25 24 23 22 21 5 4 3 Set in Adobe Minion Pro and Cronos Pro Opticals Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz CONTENTS Letter of transmittal xi Abbreviations xvii Acknowledgements xviii Chapter 1 : The Context for this Inquiry 1 1 1 What is at issue ? 1 1 2 The proceedings 2 1 3 Issues for determination 3 1 4 The claimants, their claims, and the interested parties 4 1 5 Crown concessions 4 1 6 The structure of this report 6 Chapter 2 : The Tiriti / Treaty Context 9 2 1 Jurisdiction 9 2 2 Tiriti / Treaty principles 9 2 3 Te Tiriti / ​the Treaty – the two texts 10 2 4 Article 2 : tino rangatiratanga over kāinga 11 2 5 Partnership 16 2 6 Active protection 19 2 7 Equity 21 2 8 Options 22 2 9 Redress 24 Chapter 3 : The Evolution of Care and Protection Systems in New Zealand 27 3 1 Introduction 27 3 2 The Child Welfare Division, 1925–70s 27 3 3 Department of Social Welfare, 1970s 30 3 4 Puao-Te-Ata-Tu, 1988 32 3 5 Child, Youth and Family, 1989–2016 34 3 5 Child, Youth and Family, 1989–2016 34 3 6 Expert Advisory Panel Report, 2015 35 v Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Contents Chapter 3 : The Evolution of Care and Protection Systems in New Zealand—continued 3 7 Oranga Tamariki – Ministry for Children, 2017 36 3 7 1 Founding purpose 38 3 7 2 Functions 38 3 7 3 Process governing the placing of tamariki and young people into care and protection custody 39 3 7 3 1 Report of concern and initial assessment 39 3 7 3 2 Investigation 39 3 7 3 3 Family group conference 41 3 7 4 Section 7AA 42 3 7 4 1 Mana tamaiti policy objectives 43 3 7 4 2 Partnerships and satellite organisations 43 3 7 4 3 Maori Design Group 43 3 7 4 4 Strategic partnership agreements 44 3 7 4 5 Memoranda of understanding 44 3 7 4 6 Independent organisations 44 3 7 4 7 Current reports 44 Chapter 4 : Causes of Disparity 47 4 1 Introduction 47 4 2 What is the disparity between the number of Māori and non-Māori tamariki entering into care ? 48 4 3 Causes of the disparity : factors external to Oranga Tamariki and its predecessors — colonisation and its impacts 50 4 3 1 The claimants’ position 50 4 3 2 The Crown’s position 55 4 4 Causes of the disparity : factors internal to Oranga Tamariki and its predecessors 56 4 4 1 Crown control 56 4 4 1 1 The claimants’ position 56 4 4 1 2 The Crown’s position 58 4 4 2 Legislative and policy coherence 60 4 4 2 1 The claimants’ position 60 4 4 2 2 The Crown’s position 63 4 4 3 Notify-investigate model 64 4 4 3 1 The claimants’ position 64 4 4 3 2 The Crown’s position 65 4 4 4 Cultural competency 65 4 4 4 1 The claimants’ position 65 4 4 4 2 The Crown’s position 67 4 4 5 Variable practice 68 4 4 5 1 The claimants’ position 68 4 4 5 1 1 Site culture 68 vi Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Contents 4 4 5 1 2 Social worker caseloads and site size 70 4 4 5 1 3 Social worker power, discretion, and decision-making variability 72 4 4 5 2 The Crown’s position 73 4 4 6 Family group conferences 75 4 4 6 1 The claimants’ position 75 4 4 6 2 The Crown’s position 77 4 4 7 Section 78 (with and without notice uplift) practices 77 4 4 7 1 The claimants’ position 78 4 4 7 2 The Crown’s position 80 4 4 8 Monitoring and accountability 80 4 4 8 1 The claimants’ position 80 4 4 8 2 The Crown’s position 81 4 5 Whānau experiences 82 4 6 Treaty / Tiriti analysis and conclusions 93 4 6 1 Commentary on whānau experiences 93 4 6 1 1 The impacts of Oranga Tamariki’s missteps 93 4 6 1 2 The impacts of State care on life outcomes for tamariki 94 4 6 2 Commentary on the disparity itself 94 4 6 3 Colonisation and its impacts 95 4 6 4 Crown control 97 4 6 5 Legislative and policy coherence 100 4 6 6 Notify-investigate model 101 4 6 7 Cultural competency 103 4 6 8 Variable practice 104 4 6 9 Family group conferences 105 4 6 10 Section 78 (with or without notice uplift) practices 106 4 6 11 Monitoring and accountability 107 4 7 Concluding remarks and summary of findings 108 Chapter 5 : Changes to Policy, Practice, and Legislation since 2017 111 5 1 Introduction 111 5 2 Legislative amendments 112 5 2 1 Important legislative amendments since 2017, including the introduction of section 7AA 112 5 2 1 1 The claimants’ position 113 5 2 1 2 The Crown’s position 114 5 2 1 2 1 Mana Tamaiti policy and objectives 115 5 2 1 2 2 Quality assurance standards 116 5 2 2 Planned partial repeal of the ‘subsequent child’ provisions 117 5 2 2 1 The claimants’ position 118 5 2 2 2 The Crown’s position 120 5 3 Partnerships 120 vii Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Contents Chapter 5 : Changes to Policy, Practice, and Legislation since 2017—continued 5 3 Partnerships—continued 5 3 1 The claimants’ position 121 5 3 2 The Crown’s position 125 5 4 Policy and practice changes 127 5 4 1 Changes to procurement policies 127 5 4 1 1 The claimants’ position 127 5 4 1 2 The Crown’s position 128 5 4 2 Changes to monitoring and accountability 129 5 4 2 1 The claimants’ position 129 5 4 2 2 The Crown’s position 130 5 4 3 Changes to permanent placement policies and practice 131 5 4 3 1 The claimants’ position 131 5 4 3 2 The Crown’s position 133 5 4 4 Changes to cultural competency 134 5 4 4 1 The claimants’ position 134 5 4 4 2 The Crown’s position 136 5 4 5 Changes to section 78 uplift practices 138 5 4 5 1 The claimants’ position 139 5 4 5 1 1 The ‘Hastings uplift’ 139 5 4 5 1 2 Commentary on the uplift and consequent changes to policy and practice 139 5 4 5 2 The Crown’s position 141 5 4 6 Changes to family group conference practices 143 5 4 6 1 The claimants’ position 143 5 4 6 2 The Crown’s position 144 5 5 Case studies – constructive practice and promise 144 5 6 Tiriti / Treaty analysis and conclusions 144 5 6 1 Commentary on case studies 150 5 6 2 Introduction of section 7AA 150 5 6 2 1 Planned partial repeal of the subsequent child provisions 156 5 6 2 2 Partnerships 157 5 6 2 3 Procurement model 157 5 6 2 4 Changes to monitoring and accountability 158 5 6 2 5 Changes to permanent placement policies and practice 159 5 6 2 6 Changes to cultural competency 159 5 6 2 7 Changes to section 78 uplift practices 160 5 6 2 8 Changes to family group conference practices 161 5 7 Concluding remarks and summary of findings 162 Chapter 6 : The Future : Recommendations for Change 165 6 1 Introduction 165 6 2 The claimants’ position 165 viii Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Contents 6 3 The Crown’s position 177 6 4 The Tribunal’s analysis 180 6 4 1 Transformation and change 182 6 4 2 Transformation – two caveats 184 6 4 3 Legislative change 186 6 4 4 Structural change 187 6 4 4 1 What we have now 187 6 4 4 2 Structural change ; establishment of a Māori Transition Authority 187 6 4 5 The ‘Hastings Uplift’ 192 Appendix i : List of Claims, Claimants, and Interested Parties 197 I 1 Claims and claimants 197 I 2 Interested parties 199 Appendix ii : Appendix of Statistics 201 II 1 Introduction 201 II2 Data limitations 201 II 2 1 Limitations of Oranga Tamariki data 201 II 2 2 General data limitations 203 II 3 Why has there been such a significant and consistent disparity between the number of tamariki Māori and non-Māori children being taken into State care under the auspices of Oranga Tamariki and its predecessors ? 204 II 3 1 What are the disparities ? 204 II 3 1 1 Disparity between Māori and non-Māori with regard to entrance into care 204 II 3 1 2 Population disparity between tamariki Māori and non-Māori 210 II 3 1 3 Exit disparity between tamariki Māori and non-Māori 213 II 3 1 4 Disparity in rate of permanent care between tamariki Māori and non-Māori 215 II 3 2 What impact has colonisation had on the disparities ? 217 II 3 2 1 Structural disadvantage 217 II 3 2 2 Previous involvement 218 II 3 2 3 The cross over between State care and youth/adult justice 220 II 3 2 4 The four key stages of care and protection : report of concern, investigation, family group conference, and placement 221 II 3 2 5 Youth justice disparity 224 II 3 3 Staff data regarding cultural competency 225 II 3 3 1 Cultural competency 225 II 3 3 2 Overview and conclusion 227 ix Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Contents Appendix ii : Appendix of Statistics—continued II 3 Why has there been such a significant and consistent disparity—continued II 3 4 Section 78 (with and without notice) uplifts 227 II 4 To what extent will the legislative policy and practice changes introduced since 2017, and currently being implemented, change this disparity for the better ? 228 II 4 1 What legislative tools has Oranga Tamariki utilised that have contributed to the disparate number of tamariki Māori and non-Māori children entering care ? 228 II 4 1 1 Warrant data (sections 39–40) 229 II 4 1
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