All risk and no recognition: repeal and devolution in child protection

Two of the things up first on the hit list for change in child protection are: repealing s7AA of the Oranga Tamariki Act 1989, and increasing the devolution of care decisions to the community. These two appear at odds, but can be explained by the key ACT aims of removing Tiriti rights, while increasing community responsibility within a ‘small state’ vision. ACT argues the repeal of s7AA is about ensuring children’s best interests are at the centre of decision making. I think it’s more about the partnerships and reporting on disparities the section enabled.

However imperfect the partnerships under s7AA were, they were a step in the right direction of rebalancing power, and the repeal will increase inequities, remove a series of policy and practice changes that were improving outcomes, and damage a fragile trust.

The policy changes proposed by the triumvirate government reflect a curious mix of ideological positions, lobbyism, and the hobby horses of particular individuals. The result is an odd combo of at times quite conflicting policy changes. Much like Hagrid’s three-headed dog ‘fluffy’, we probably wish we could have kept it asleep a little longer with Labour’s lullabies. It’s awake though, and we have to put up with all three talking heads and their bluster for three long years, with its assortment of business cliches, smooth-talking cruelty and a lot of aggressive barking. 

Getting rid of s7AA of the Oranga Tamariki Act is one proposed change. Just what is s7AA all about? The section’s aim, entitled ‘duties of chief executive in relation to Treaty of Waitangi (Tiriti o Waitangi)’ took effect in July 2019. Its aim is to provide a ‘practical commitment to the principles of the Treaty of Waitangi’. It creates an onus on Oranga Tamariki to ensure that policies and practices of the department ‘measure and reduce disparities for Māori’, develop strategic partnerhips with iwi and Māori organisations, consider delegation of functions to iwi, and requires all policies and services to  “have regard to mana tamaiti (tamariki) and the whakapapa of Māori children .. and the whanaungatanga responsibilities of their whānau, hapū, and iwi”. 

Repealing it is part of ACT’s resistance to any recognition of te Tiriti as conferring rights differently for Māori than other New Zealanders. But their framing of it focusses on individual decision-making and a false dichotomy between children’s best interests and their rights to whakapapa. As Chris Bishop argued just yesterday when asked about repealing it “the most fundamental point with all law concerning children was to put the welfare of the child at the centre of all decision-making, that’s what the minister is focussed on”. The proposed changes from the Act website frames it like this : “While well intentioned, section 7AA creates a conflict between protecting the best interests of the child and race-based factors enshrined in 7AA. This conflict has the potential to cause real harm to our children. Oranga Tamariki’s governing principles and its Act should be colour-blind, utterly child-centric and open to whatever solution will ensure a child’s wellbeing… [we should place] more value on the best interests of the child rather than the Treaty.”

This sets up a straw man argument between on the one hand Te Tiriti, and the other, children’s best interests. It also implies that s7AA is only about how particular principles should be weighed up in specific case decisions. Both misrepresent the section and its intent. Children’s best interests are served by a consideration of their whakapapa rights, not damaged by it. Children’s best interests are served, not harmed, by an emphasis on the responsibilities of their whānau hapū and iwi to care for them. Much of the harm of the child protection system for Māori has stemmed from a lack of recognition of the interconnection of children’s interests and their connection to whānau and hapū, a finding of countless reports and inquiries showing the harm of being cut off from access to identities and support networks these confer. Ensuring iwi have sovereignty over kāinga and with it, decisions regarding children’s care, is an important solution that can protect children’s best interests – all of them – not just their need for immediate care and safety, but longterm wellbeing connected to whakapapa and belonging. 

Cases that have hit the media, such as ‘Moana’ are clearly at the heart of Act’s position, often those where care changes are disputed and one driver is a consideration of whakapapa and mana tamaiti. But complex individual cases of interpretation, where not all facts of the case can be reported, should not be used to disparage legislation unequivocally. Just because it’s difficult to apply principles in practice doesn’t mean we get rid of ones we don’t like. They all have value, and in this case, not just value, but embody an important protective principle without which many, many children are harmed and have been down through the generations.

There is also already an override regarding children’s best interests where specific situations may prove difficult to weigh up – the paramountcy principle of section 6 that requires a child’s best interests and wellbeing to be the first and paramount consideration. Of course, defining what those are is also not straightforward and should also contain consideration of whakapapa and whānau.

But it’s hard to believe getting rid of s7AA is really about children’s best interests and decision-making about individuals, because without s7AA,  there are extensive other requirements in section 4 and 13 principles that require the principles of te Tiriti, children’s right to whakapapa and the rights of whānau, hapū and iwi to be upheld in decisions. These still remain despite the repeal of s7AA.

So if repealing s7AA isn’t really about decision-making for individual children, what’s the real reason for repeal? More fundamental to issues of rangatiratanga are the partnerships and measuring disparities requirements. Those iwi and Māori organisations who pursued partnerships under s7AA gained a different kind of relationship with the crown than just another community organisation. This higher level of relationship will be returned to simply another ‘community organisation’, structured by contracting, procurement and accountability rules that keep Oranga Tamariki in the drivers seat. The growing trust and relationships established between iwi and Oranga Tamariki, will be trampled.

Removing s7AA also removes the need to measure and reduce population level disparities for Māori, emphasised particularly by the Waitangi Tribunal inquiry into disparity causes in 2020. This reported the immense damage done to Māori communities over the years through the vehicle of the child protection system. As a mechanism of colonisation, it removed thousands of Māori children for spurious reasons, damaging their connection to whakapapa and exposing them to tremendous harm. Without measurement and reporting, those disparities will simply ‘disappear’ from view, and with it, a work progamme to address them. And it was working in many ways. For example, since 2019, disparities for Māori babies entering care have reduced from fives times the non-Maori rate, to three times. The overall rates of Māori children entering care have plummeted. Getting rid of the partnerships and measuring disparities absolves the government of recognising inequalities or pursuing a Tiriti-based solution. Without this, Oranga Tamariki is re-positioned as the ones with all the answers and all the power. That has not worked so far.

It’s not that Te Tiriti relies on codification into legislation for power and meaning. It stands in its own mana. Some even argue that the Treaty principles embedded in legislation water down the Treaty promises: after all, partnership is not sovereignty, participation is not self-determination and protection is not equity. Repealing in some instances could free Te Tiriti from a set of watered down rules forged and framed in a bygone, stepping-stone era. But that would only ring true on the ground if a proposed alternative was better than this one. As it stands, s7AA  demands the Crown abide by some basic privileging of iwi -Crown relationships over Crown – other community organisation relationships, enabling the restoration of some forms of power.

But the child protection system is a machine with many cogs. Other changes – both within the assumed purview of Oranga Tamariki – and other ministries, will also have an effect. The ‘devolving of care decisions to the community’, for example, will intersect with the repeal of s7AA. It reflects a libertarian nod to the notions of community responsibility and small state bureaucracies. ACT see no conflict in removing iwi rights while also giving more responsibility to communities, right up to care decisions. Many of those asked to take on such decisions will ironically, be iwi and Māori organisations.

Community decision-making in child protection as a general practice is an interesting beast. Some decisions about children can certainly be made in the community, especially those about initial reports, service provision, whānau hui and family group conferencing. Their quality is improved with community expertise and relationships (Roguski, 2020). But final decisions for orders are a different matter. This ‘devolution’ could be a vehicle for empowering communities to make these decisions themselves, but it would take a huge resource of strategic planning, capacity-building and funding involving organisations and the family court. Most community orgs, including iwi, are hesitant to take on this level of power, because of the uncomfortable position it puts them in – as a support service provider AND remover of children. The infrastructure to enable this would be considerable. So while the repeal of s7AA will remove some powers of iwi organisations, the devolution of decision-making might give some back albeit without any differentiation from other organisations. But it’s likely to be all risk and responsibility with no resourcing. 

A key problem with the repeal of s7AA is really one of the destruction of trust. Many people within Oranga Tamariki and iwi and Māori organisations have been working hard to restore trust through partnership agreements, but that rug has been pulled from under everyone’s feet. Some work will go on, but the symbolic and emotional aspect of the repeal – as a rejection of Te Tiriti – might do far more damage than the details of its impacts. For Māori, this comes on top of many, many disappointments with the Crown. In child protection, these cuts run deep into muscle and memory and whakapapa.

“The Treaty to me has never been about Treaty rights, it’s always been about the rightness that comes from people accepting their obligations to each other.” – Moana Jackson.