Protesters marched on Parliament in Wellington in 2019, calling for Oranga Tamariki to stop taking babies from their mothers. It followed the broadcast of a video showing the attempted removal of a newborn baby from its mother at Hawke’s Bay Hospital. (Photo: RNZ / Ana Tovey)

It’s just over a year since the last of six reviews into Oranga Tamariki was completed. The stack of reports was written in a flurry after video taken in a Hawke’s Bay hospital showed the state repeatedly trying to remove a newborn baby from their Māori mother.

In this conversation with Connie Buchanan, law lecturer Luke Fitzmaurice-Brown reflects on what change the reports might bring about.

There’s a passage in Pūao Te Ata Tū, a report written by John Rangihau and other rangatira in 1986, which sadly still rings true.

Describing the racism faced by Māori within the child protection system, it says that “at the heart of the issue is a profound misunderstanding or ignorance of the place of the child in Māori society and its relationship with whānau, hapū, iwi structures.”

Pūao Te Ata Tū wasn’t compulsory reading at Oranga Tamariki when I worked there, but it should be. I think we sometimes assume that racism is now in the past, but the events of the last few years should remind us that it’s still very much alive today.

I was working for Oranga Tamariki when the Hawke’s Bay baby uplift happened. What I found most unsettling about it was that some of my colleagues didn’t seem unsettled at all.

We were told that it was an isolated thing, misrepresented by the media. Get on with the job, was the message, nothing to see here. And a lot of people accepted that.

I found that reaction almost as disturbing than the incident itself. It was such a strange time.

I’d been there for about six years at that point, and had been part of the team that had reviewed Child, Youth and Family and helped to create Oranga Tamariki. I was enthusiastic about that review, possibly a little naively, and wide-eyed about the possibilities for change.

The response to the Hawke’s Bay case was a turning point for me, where I started to recognise that the potential for change wasn’t going to be realised. The quote in Pūao Te Ata Tū hit me hard because I think it’s still the central problem today.

There remains a lack of understanding of things Māori, and an unwillingness to hand over power to hapū and iwi to make decisions under our own authority for the protection of our own children. Our tikanga gives us the authority and the guidance to do that, but those things have been suppressed.

This is a problem of colonisation, and I think it’s important we think about it that way. As Ani Mikaere reminds us, colonisation has always been about more than the theft of land, it has been about recreating the colonised in the image of the coloniser. It robbed Māori of many of our tikanga, including the tikanga of whānau and hapū.

Lots of the people who protested following the Hawke’s Bay uplift immediately recognised the incident was a symptom of something bigger. That it was a symptom of colonisation. I think that’s why the outrage among Māori was so immediate and so widespread.

I resigned from Oranga Tamariki about six months after those protests. For me, the whole incident crystallised things that I’d started realising about the impacts of colonisation.

Since the Hawke’s Bay uplift, there’ve been six different reviews into Oranga Tamariki. I’ve read all of them a few times now, and I think one thing we’ve missed is that beneath their recommendations is a major split in their prescriptions for change.

The split is between those who think we can solve things for Māori within the current system, and those who say something more fundamental is needed. It mirrors the difference between my colleagues who saw the uplift as an isolated incident that could be managed through policy changes, and those who took to the streets in protest at the root cause.

It took me a while to get there, but I now fall in the camp calling for fundamental change.

At the moment, there are lots of signs of positive progress. There are examples where good things are happening. I think it’s important to acknowledge those, because some people are working very hard to make them happen. But they are often happening in spite of the system, not because of it.

You might get an amazing Oranga Tamariki person, an amazing iwi person, and an amazing social services person, who all line up in one particular place at one particular time. Things work well based on their relationships, and our tamariki and whānau are well served.

For example, up north, there’s an iwi-based service, Waitomo Papakāinga, who have a partnership with Oranga Tamariki. It’s unusual because it involves quite a lot of power-sharing.

Recently they had a case where a Family Court judge made an order for a lawyer to go to a caregiver’s house, to check on how everything was going with a child’s care arrangement.

Waitomo Papakāinga said, “No, you can’t do that,” because the agreement they had with Oranga Tamariki was that they would be the single conduit to caregivers for all services. At the heart of that was their desire to keep whānau from having to deal with a dozen different government strangers in their driveway.

So they defied the court order and took a judicial review. The High Court recognised the rangatiratanga in Waitomo Papakāinga’s relationship with Oranga Tamariki. It found that the Family Court judge was wrong. And, uniquely, Oranga Tamariki backed them up. They were in agreement that was how it should work.

That is an example of the Oranga Tamariki person and the iwi person and a couple of others all lining up. But it still required legal action to uphold the agreed arrangement.

I think, in many cases, for every kind of power-sharing opportunity that’s set up, there’s still a backdoor way that the Crown can try to take back control.

The law regarding iwi partnerships, for example, enables Oranga Tamariki to pick and choose who it wants to deal with. There’s no ability at all for iwi and hapū to force their way in. They’ll get told “we don’t want to talk to you at the moment” if it doesn’t suit. And our child protection laws don’t mention rangatiratanga once.

Family group conferences are another example of the power imbalance. They’re supposed to bring all the whānau together to jointly make a decision about things. But at the end of the day, if Oranga Tamariki disagrees, or the Family Court disagrees, they can still veto those decisions. The Children’s Commissioner’s report last year described how, as a result, family group conferences are no longer trusted by whānau Māori — and who can blame them?

Things are starting to change, but I think the risk is that we end up with supposedly Māori-led initiatives delivering the same mistakes as the current system. That’s the worst-case scenario, and that’s why I think it’s important we think about this as a decolonisation issue.

If you disconnect policy change from fundamental underlying change, you’ll get a similar result. If you disconnect service delivery from decolonisation, you’ll get a similar result.

We’re in a weird moment where the Crown has started to talk about colonisation all the time, but never actually talks about decolonisation. They refuse to use the same word to fix the problem that they have used to identify the problem.

I think we need to be careful that we don’t interpret the government talking about colonisation as a commitment to doing things differently. In many ways, it’s quite the opposite. They’re owning up to it, but often they’re carrying on the same behaviours.

In the Waitangi Tribunal inquiry into Oranga Tamariki, the Crown acknowledged that some of the issues were a consequence of colonisation, but went on to state that those issues were now beyond the influence of Oranga Tamariki. The left hand of the state admitted its misdeeds while the right hand claimed that nothing could be done.

Thinking about child protection as a decolonisation issue helps to make that attempted sleight of hand more visible.

Renaming departments, using our reo Māori, that sort of thing, is not a challenge to the Crown’s power. And if it’s not a challenge to the Crown’s power, then it’s highly likely to reinforce Crown control. There really is no middle ground on this stuff, I don’t think.

In the short term, I think efforts will continue to go towards changing things from the inside. That’s what the government wants, and that’s what they have indicated they will do. In the long-term, I think constitutional change is required, and inevitable.

We need a Māori-based, hapū-based system where we come together and wānanga, and exercise our own authority to decide what happens to tamariki and whānau in need of care and protection. A system where we don’t need the state to hover over us and take back power if it disagrees. I think it will require constitutional change to prevent that hovering and interference.

Matike Mai articulates a future in which Te Tiriti o Waitangi is upheld and rangatiratanga is realised. It sets out ways that can ensure devolution isn’t just the same old service delivered by Māori. It is the long-term solution. The Waitangi Tribunal inquiry firmly reiterated that matters of tamariki and whānau Māori are matters of rangatiratanga, not kāwanatanga.

In the meantime, the current child protection system needs to focus more on whānau. The Whānau Ora report, the Children’s Commissioner’s report and the Waitangi Tribunal inquiry all found that a narrow focus on individual children is causing more harm than good from a Māori perspective.

It’s exactly what John Rangihau and the others said 25 years ago in Pūao Te Ata Tū. Some of the answers have been there for a long time now.

What makes it all so difficult, of course, is that the reality of child protection issues means it feels risky to those who decide to hand over power.

Transferring authority to Māori is not going to instantly solve the underlying causes of child abuse. Things will still go wrong. People might still get hurt. It won’t be perfect, and I think we need to be honest about that difficult reality.

But people get hurt now. Too often we fail to make changes which we know are necessary because they might not be perfect, but the current system is far from perfect.

If and when these big changes to child protection are made, the next time someone gets hurt there will be those who want to score points and say: “See, we told you it would go wrong.” We have to be honest that the shit might hit the fan at some point.

I think we have to accept that it will be messy and difficult, but I’m absolutely confident that if we make the change, then over time the hurt will happen less often. We can address and eventually eliminate these problems if we have the courage to do something different.

Imagine you came in fresh as an alien in 2022 to look at humans in New Zealand. You’d see a child protection system where 70 percent of the kids are Māori. You’d see acknowledgement from all sides that the problems which drive that issue are colonisation problems. Yet you wouldn’t see a Māori frame of reference being used to solve things. The tikanga which could help with that is alive and well, but we ignore them. Any alien would say that makes no sense at all, why are you not using those tools?

And then imagine you were told, oh, there’s also an agreement that’s been in place for 182 years which guarantees Māori have control over this stuff, but it’s been continually breached. Then it would make even less sense.

This is a Treaty thing, it’s a moral thing, but it’s also just a practical thing. I think this is how we actually address the harm which the child protection system has caused Māori for generations now. Taking back authority is our right, and it’s the only way we’ll ever end the hurt.

Luke Fitzmaurice-Brown (Photo supplied)

Luke Fitzmaurice-Brown (Te Aupōuri) is a lecturer in Law at Te Herenga Waka Victoria University of Wellington. His research covers Te Tiriti o Waitangi, child protection and children’s rights.

As told to Connie Buchanan, and made possible by the Public Interest Journalism Fund.

© E-Tangata, 2022