Smarter, not harder: decision-making, policy swings and the Malachi Subecz report

The ombudsman’s report has now been now released about the handling of Malachi Subecz’s case. Between that and media reporting, we are learning more about the circumstances that led to his tragic death. These facts raise many questions in relation to decision-making at the often called ‘front door’ of the child protection system, as well as wider reflections on the broader system. What often happens in cases of child death is a sense of outrage, media frenzy and a growing ‘collective emotion’: in the aftermath this collective emotion generates a pendulum swing towards more risk averse decisions, an increase in screen-ins, a call for more or mandatory reporting, and more investigations and child removals. Of course we should be emotional, we should be horrified to learn of what Malachi suffered and his family’s best efforts to get him help. But unfortunately reforms in response to sentinel events are seldom durable, often ill-focussed, and can have significant unintended consequences. 

What’s needed in this instance, in the short term, is a sharp focus on decision-making about specific types of cases and specific types of information, rather than a wholesale swing towards more intervention. A greater consensus between Oranga Tamariki and those who make reports to them about what kind of reports meet the Orange Tamariki threshold needs urgent attention. Better communication between reporters and Oranga Tamariki that builds legitimacy and trust is needed. Questions about the balance between national consistency and local knowledge when reports are responded to needs careful deliberation. In the longterm, as we move away from a notify-investigate system towards poverty reduction, Māori control for Māori, and more resourcing for community-based systems of care, we need a clear strategy to manage the transition to community devolution that maintains safety while changing the responsibility for that safety. 

Over the last three years, sparked primarily by the Hawkes Bay case, and dominated by the findings of several public inquiries, we have had a policy direction change towards less legal intervention in family life, and a greater emphasis on prevention and support in the community. Alongside this, the pervasive racism within the child protection system has been challenged by the persistent findings of over-intervention for Māori, and many initial remedies proposed. These include the s7AA provision in the Oranga Tamariki Act, local iwi partnerships, greater resourcing of some iwi organisations and the adoption of Māori-centred practice frameworks.

All of this has led to changing logics at the front door of the system, with new reports needing to meet a higher threshold to be accepted, and a logic that if several agencies are already working with a family, there is no need for OT to become involved, unless there is obvious and serious harm to a child. This change has helped drive down the rates of children entering care, including Māori children. But have there been unintended consequences? Is Malachi’s death related to this change and if so, how should we react? Have we swung too far?

Early findings from our current study of reporting decisions to Oranga Tamariki show significant frustration amongst community reporters (NGO workers, schools and police). All participants mentioned the threshold has gone up, making it difficult to get cases ‘picked up’ by Oranga Tamariki. They noted that even in cases where risk was felt to be high, based on often extensive work with a family, it is difficult to get Oranga Tamariki to act unless harm to a child was imminent and there is evidence of physical or sexual assault. Participants often felt ‘in the dark’ about what kinds of cases would be picked up, which combined with poor communication about the reasons for earlier cases to be closed, reduced their faith in reporting. For some, this affected their ongoing reporting behaviour. One must wonder if this was the case with Malachi’s daycare. 

But is this most egregious failure to act in this instance related to this general policy change? It’s difficult to know. Because despite these findings, on the face of public information, the report about Malachi would appear to meet even this higher threshold. There was clear physical injury, with evidence (a photo) and a recent change of caregiver. His family was so worried they supplied the photo and reported to multiple offices. Yet neither their actions nor the photo was enough to generate action. So while the general direction of change towards prevention may be the background wallpaper for the obvious failure to investigate, it really appears that this error is related more to case specificities than this wider policy direction.

Even in a child welfare orientation (where the focus is on family support rather than punitive intervention), clear evidence of severe physical abuse should result in a proper investigation that involves seeing the child and speaking with their caregiver. In this instance, Malachi’s mother was called in prison and asked if she was comfortable with the care arrangement, with no visit to Malachi or the person charged with his care. Considerable ongoing concerns from his wider whānau were ignored or not ‘put together’, but really, the initial piece of information should have been enough to spark further action – that is, it was not a case of poor ‘information sharing’ between outside agencies, or a focus on prevention outside of OT, it was that OT didn’t act on the information it did have. So why not? 

It is incredibly difficult, and in fact impossible, to get every decision right in a context of time pressure, poor information quality (often reporters can’t provide much information), and multiple cases. There is a fundamental context of uncertainty in child protection, because human behaviour is not consistently predictable, no matter what assessment tools are used. Despite these caveats, we can surmise some issues that may have led to Malachi’s case being dismissed, based on what is known about decision-making at this juncture. People learn heuristics or fast ‘rules of thumb’, based on past cases and organisational norms, that help them make decisions, matching new cases with these rules to determine what should be done. 

 In child protection, these heuristics guide responses  in pressured environments, leading to screen-ins (accepted report) and screen outs (no further action). Malachi did not fit with a ‘usual picture’ of concerns that fit the acceptance heuristic, and did fit some reasons to exclude him (or screen out in technical terms). He wasn’t known to OT, there were no other obvious risks, and he was also the subject of a custody dispute before the family court. Where cases don’t fit a ‘common type of case’, it can lead to decisional paralysis or screen out – social workers don’t have a large enough bank of similar cases to assist them with ‘pattern recognition’, or, to put it another way, they don’t have an available heuristic to guide them, so they do nothing. The heavy reliance on histories within OT heuristics, and looking for multiple risk factors can blind people when one piece of extremely salient information should signal action: a serious injury to the head that had evidence and was not well explained. Where heuristics take over, these salient ‘signal’ pieces of information can get lost when trying to pattern match, and the consequence is ignoring them. This is exacerbated where workload is high, information is fragmented, and the status quo of inaction is easier.  

A driver in the other direction was the fact he was the subject of a custody dispute. The child protection intake system is routinely used by parents to attempt to settle custody concerns. This means most are, quite rightly, screened out, but this preponderance of reports about custody can lead to a ‘blinding’ in relation to more salient factors. The heuristic regarding ‘custody disputes’ kicks in, editing out other important information. All of these contributed to poor decision-making. Malachi’s death could not have been predicted, but the information available certainly should have met a threshold for action, overriding these norms. 

Does this mean our policy direction in general needs re-calibrating back to a more protectionist position? I don’t think so. However, smarter decision-making in relation to physical injury and widespread family concerns, along with better training in relation to ‘unusual’ cases is certainly needed. Signal detection needs a clear hierarchy of case types that are always responded to, so the development of heuristics is intentional and ‘slowed down’ in time for critical reflection. This helps decisions – made under the worst conditions of decision making – to be as robust as they can be. 

Another question this raises is the other thing that swings – whether to have a national intake centre as we currently do – or return intake decisions to site offices. The tension in this is between consistency, and local knowledge and responsiveness. A national intake centre can reduce inconsistency between sites and create a more uniform approach. But it also has little knowledge of the families reported to it, reducing information quality, and can lead to double handling of information. This produces an increase in bureacratic fragmentation of information. Reporters regularly state that the information they have provided to intake is different once it gets back to them via the site based social workers. There is no ‘right way’, but intake processes at site could improve the depth of information quality for families already known (but can also increase biases), as well as have a single, clear process of case assessment, rather than the double layer we currently have – first at intake, then again at site. Maintaining consistency, however, will remain a problem. Strong internal processes that check these, and as I have argued elsewhere, problem -based education that uses specific case examples are needed in professional development to ensure consistency, especially around ‘must screen ins’ (see implications for practice). 

There is a gap between reporters and the threshold of Oranga Tamariki for report acceptance and action. While this is somewhat inevitable in a time of movement towards greater prevention efforts, there needs to be a clearer consensus between community reporters and Oranga Tamariki about this threshold, intentionally developed and communicated. In particular, there needs to be recognition of the continuing role for Orange Tamariki in cases where families have disengaged and concern is very high.

Some have called for mandatory reporting. This is a bad idea. Mandatory reporting creates an overwhelming number of low risk reports, and focusses reporters on whether they should report rather than responding to families. It also threatens relationships with families when there is really no need to do so. Ironically, floods of mostly low risk reports makes identifying high risk cases harder, and leads to people reporting out of fear they will be punished, rather than because it’s the best course of action.

It also creates a misplaced faith in Oranga Tamariki to address all instances of potential harm. Many family struggles including low level neglect, high stress and health needs, and less serious physical abuse are effectively responded to every day by community social workers, police and school staff. But when they do report, it is not done lightly, and for it to be constantly closed and with poor communication about why, reduces community faith in reporting. A reporter education strategy is needed to ensure everyone knows when they should report, and how communication about the report will be undertaken, rather than forcing everything to be reported to a system already overwhelmed, reducing communication about outcomes and decision accuracy even further.  

As we move towards a prevention focus, an increase in community resourcing is also required to enable community providers to support high needs whānau. Cases not picked up may be quite rightly returned to community support to avoid the over intervention of the past. But community orgs need to be strategically resourced, rather than in a piecemeal fashion. Who is responding to the families now no longer picked up by Oranga Tamariki? How are they resoured to do the work? And what is the impact of this change on families? Longitudinal research into the effects of such a large policy change on both community-based organisations, and children and family outcomes over time would provide much needed insight into its effects.  A wholesale return to over investigation is likely to take us back down a pathway to over-intervention, increasing disparities for Māori and people living in high deprivation areas, and children in care who do not need to be there. But the expectation that ‘the community’ can respond to high risk cases, and without extra resourcing, is misplaced.

 To take a step back even further, however, requires an even harder look at our whole child protection system. We can improve the reporting/intake process, but this will always be a troublesome and imperfect interface due to the fundamental decision-making processes it creates. We should be asking more questions about what the alternatives are to a system that requires reports to a centralised body and creates extremely challenging conditions for decision-making, however well done (Keddell & Cleaver, 2021; Keddell, 2022).

This ‘notify-investigate’ structure sets up the conditions for poor decision-making. Already, many internationally are transferring abolitionist ideas from the criminal justice field and applying them to child welfare. Creating the social conditions and community resources that address child and whānau welfare more broadly will always reduce the need for statutory services and their inherent decision-making limits. Moving decision-making closer to the child and family through processes that support families and whānau to make their own decisions, and access the services and financial supports often needed, requires a different way of ‘doing’ child protecion, creating more durable systems of comunity care than we currently have. Divesting power from the centre to all communities is definitely another part of the puzzle, rather than intensifying it by encouraging more reporting. These solutions need much development and careful exploration, as well as a clearer plan for implementation so noone falls through the transition cracks. Are we brave enough to pursue them?

He mihi ki te whānau o Malachi – I just want to acknowledge Malachi and his family who remain here mourning him. Our thoughts are with you most of all.