Published August 2020

"My investigation.

The role of Oranga Tamariki—the Ministry for Children (the Ministry) is to promote the wellbeing of tamariki, rangatahi and their whānau. Under the Oranga Tamariki Act 1989 (the Act) the Ministry has the power to take custody of, and remove, tamariki and rangatahi from their whānau when they are at risk of harm. This includes newborn pēpi.[1]

Under section 78 of the Act, the Ministry is able to apply for, and be granted, interim custody of tamariki in cases where other options to ensure their safety are not available. Further, in urgent cases it is able to do so without providing the parents and whānau of newborn pēpi the opportunity to be heard or respond before interim custody orders are granted. This should be in the context where other legal avenues, such as place of safety warrants and truncated notice periods, are not available. Given that without notice applications are a departure from the fundamental natural justice requirements enshrined in law, it is critical that there is independent oversight of the Ministry’s policies, procedures and practices connected to the removal of newborn pēpi in such circumstances.

My role as an Officer of Parliament is to provide such independent oversight. By conducting investigations into the administrative conduct of public sector agencies, such as the Ministry, I promote government accountability and transparency. This in turn enables Parliament and the public of Aotearoa to have high levels of trust and confidence in government.

I have examined whether there are any systemic issues connected to the Ministry’s policies, procedures, and practices relating to the removal of newborn pēpi under without notice interim custody orders.

In doing so, I acknowledge that the Ministry operates within a wider system. The work undertaken by other agencies will, at times, impact the Ministry’s ability to meet its core purpose of ensuring ‘all tamariki are living with loving whānau and in communities where oranga tamariki can be realised’.

The timeframe for my investigation is from 1 July 2017 to 30 June 2019. This covers the Ministry’s actions and decisions during the first two years of its five-year programme of transforming Aotearoa’s care and protection operating model.

As part of my investigation, I arranged for visits to nine out of 50 of the Ministry’s care and protection sites and undertook interviews with the relevant staff there. I also arranged for interviews with key third parties who play a role in the removal of newborn pēpi at a site level. This included staff from the associated District Health Boards (DHBs), the New Zealand Police, and, where possible, relevant social service providers.

Interviews were also undertaken with staff from the Ministry’s National Office, and with other stakeholders and interested parties. This included Family Court judges, iwi social service providers and organisations, representatives from the disability community, National Māori Women’s Welfare League, Nga Maia Māori Midwives Aotearoa, the New Zealand College of Midwives, the Public Service Association and the Social Workers Registration Board.

I analysed the Ministry’s case files for 74 newborn (and unborn) pēpi in respect of whom the Ministry applied for interim custody under section 78 during the period between 1 July 2017 and 30 June 2019. These were all the section 78 files in the relevant period from the nine care and protection sites visited for my investigation. In all 74 files, the Ministry applied for without notice interim custody. I am not aware of any cases from these nine sites where, over the relevant period, a section 78 interim custody order for pēpi was applied for with notice. These 74 cases represent between 20 and 25 percent of all section 78 cases involving newborn pēpi during the relevant timeframe. In the 74 cases I examined, 56 pēpi (75 percent) were physically removed.

Between 1 July 2017 and 31 June 2019, the Ministry received reports of concern relating to over 4000 pēpi. In this period, across all sites, the Ministry removed approximately 300 newborn pēpi from their parents under section 78.[2] The Ministry was unable to identify the exact number of newborn pēpi removed without the parents and whānau being notified of the decision to seek interim custody. However, its own review in 2019 of half of these cases identified that the majority of the parents and whānau were not given notice before the Ministry removed their newborn pēpi. Further, data supplied by the Ministry of Justice has shown that over 94 percent of all section 78 orders for 2017/18 and 2018/19 were granted on the basis of without notice applications by the Ministry." (From the Ombudsman's Executive summary). The Executive summary continues with the Ombudsman's findings, opinion and recommendations - read the full Executive summary on the website. Record #6773