Natural justice and child protection: justice for the powerful only?

A guest post by Luke Fitzmaurice.

Tracey Martin would like us to think about natural justice. If only that had been the priority in the first place.

Last week’s damning investigation by Newsroom was the latest in a series of reports on Oranga Tamariki highlighting deep-rooted, fundamental problems within the agency. Among other things, the story described significant problems within the culture of the organisation, concerns about the lack of social work expertise within the leadership team, an insufficient commitment to te ao Māori and allegations that caseload numbers were being manipulated to reflect better on the organisation.

The most recent story follows on from the 2019 Newsroom investigation into the uplift of a baby in Hawkes Bay which won multiple awards at the recent Voyager media awards. Since then there have been four subsequent reviews, an upcoming Waitangi Tribunal hearing and, most recently, an additional Newsroom story about Oranga Tamariki CEO Grainne Moss’s departure from BUPA, her previous employer. Pressure continues to grow for change at the top, with several Māori leaders yesterday repeating their call for the Moss’s resignation.

Following the release of the most recent Newsroom story, Minister for Children Tracey Martin gave an interview on bFM, in which she pleaded with listeners to consider the personal impact that the ongoing stories are having on Moss. She asked listeners to consider whether the allegations against Moss might not be true, and repeatedly invoked ‘natural justice’ as the reason why critics should reconsider their calls for her resignation.

The irony of that plea is that a lack of natural justice is exactly what started this mess in the first place. The internal review in to the Hawkes Bay case found that the decision to remove the baby was based on outdated, historical information which unfairly prejudiced the mother in question. A commitment to natural justice may or may not exculpate Moss, but it would almost certainly have prevented the Hawkes Bay case from going the way it did in the first place. The internal review led by Oranga Tamariki found as much.

I have no personal grudge against Moss. I only had brief interactions with her while I was at Oranga Tamariki but I never found those interactions to be unpleasant or uncomfortable. When part one of the latest Newsroom story came out, I worried that it focused too much on Moss’s departure from BUPA, and not enough on the underlying issues, like the fact that someone with no grounding in te ao Māori and no social work expertise could be appointed by an entirely Pākehā panel to run a child protection agency working predominantly with Māori children. That such an appointment was even possible is a systemic issue, not a personal one. But when it comes to leading a child protection agency, public accountability comes with the job.

Tracy Martin is right that everyone deserves natural justice. But her complaints that the allegations are anonymous ignores the enormous power imbalance that exists between individual social workers within Oranga Tamariki and the institution itself. Ironically, that power imbalance is similar to the one described by many of the whānau in the recent Children’s Commissioner’s report, who said that they were treated unfairly and not given a chance to show that they had changed.

If Martin thought closely about the power imbalance that exists between her and her staff perhaps she would begin to understand the power imbalance that exists between her agency and the whānau whose lives it affects. I agree that natural justice is important, but rather than focusing on natural justice for the CEO, we need to be focusing on natural justice for children and whānau. We need a system where whānau are able to seek help without feeling judged by a system that should be supporting them. Natural justice must be a feature of the child protection system, just not in the way that Martin describes

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Luke Fitzmaurice (Te Aupōuri) is a former Oranga Tamariki employee and current PhD candidate at the University of Otago, studying indigenous perspectives on child protection and children’s rights. He also part of the Baby Removal Prevention Project being led by Associate Professor Emily Keddell.