Judge Frances Eivers: A voice for all our children

Judge Frances Eivers has been our Children’s Commissioner since November last year following on from seven others in that role starting with Ian Hassall who was appointed in 1989. Then it was Laurie O’Reilly, Roger McClay, Cindy Kiro, John Angus, Russell Wills and Andrew Becroft. 

Naturally, they all came along unique paths. Frances is from Te Teko. Her dad, a Pākehā, was a farmer and her mum (Ngāti Maniapoto and Waikato) was a teacher and Whakatāne councillor. Frances was the eldest of their six kids and she went on from Edgecumbe College to do an arts and a law degree on the way to officially becoming Aotearoa’s foremost advocate and voice for children. 

Leading up to her latest responsibilities, she had a year as a schoolgirl in Japan and six years in England with her husband Allan (from way up north at Te Kao) where she worked as a solicitor and where the couple checked out the UK with the help of a camping van. Back here, she became a Family Court judge after being sworn in at Te Teko’s Kokohinau Marae. In this conversation, Dale and Frances focus on her background and her role now as Children’s Commissioner.

 

Kia ora, Frances. There’s so much we could talk about. Like your travels around Britain in a Kombi van, or dairy farming in Te Teko, or your experiences as a lawyer and judge. And that’s on top of your work now as the Children’s Commissioner. But, first, let’s get the lowdown on your unusual surname.

Tēnā koe, Dale. Eivers is an Irish name. Some people try to tell us it’s Dutch. But I’ve been over to see the Eivers whānau in Ireland. And they think that, originally, we were Viking, probably with the name Weavers. My great-grandparents from that side of the family landed in Whakatāne in the 1860s — and there’s an Eivers Road as you drive into Whakatāne. 

They were good Catholics and had about eight kids and, eventually, they settled all around the country. My grandfather Charlie Eivers settled in Te Teko. So that was that side of the whānau.

I’m named after my father, Edward Francis Eivers. He’s called Ted or Teddy. I think there was a suggestion that I’d be called Edwina. But, fortunately, my mother said: “No. We’re calling her Frances.” 

Mum (Diana Jean, nee Dunlop) was Ngāti Maniapoto and Waikato. She grew up mainly in Te Kawa, not far from Ōtorohanga in the Waikato. But she also spent time in Kāwhia which was where my grandmother was born and raised. My mother’s grandmother was Hoana Te Kanawa. And Mum’s grandfather was a Scotsman by the name of Dick Carnachan. That’s my whānau — and I’m the eldest of six kids. Mum was one of 10. 

Mum was an amazing woman — intelligent, very creative and well ahead of her time in all she did. Whānau was first for her. 

So you have a connection with Kāwhia, which is still a sleepy little village.  

Yes, but I haven’t been there for a good while. I remember the first time I went there — and because I’d  been brought up on the beaches in the Eastern Bay of Plenty and down the East Coast, I couldn’t believe how muddy and black the Kāwhia beaches were. But I love Kāwhia being so hard to get to and so remote.

Our main marae is Rakaunui. It’s on the other side of the Kāwhia harbour, a good 30-minute drive from Kāwhia township. And there’s a real peacefulness about it.

But my life really was in Te Teko which is where all my family lived. About once every six weeks, we’d load up the car and head over to Te Kawa. But, by the time we got around all Mum’s brothers and sisters and our grandparents, it was time to head home because Dad had to be back to milk the cows. So we couldn’t even spend the night there.   

And then, so I hear, your old man wouldn’t let you milk the cows anyway, would he? 

How did you know that? Did I say that somewhere? But, yes, my job was just to go to the cowshed and get the billy full of milk. Dad would come out of the cowshed and fill the billy for me from the vat.  

Dad had to leave school at 12. And his big thing was: “No. You leave the milking to me. You concentrate on getting an education.” Us kids did other things like feeding out and feeding the chooks and riding the horses to round up the cattle and all that. But it wasn’t until I got School C that he let me milk the cows. 

You’re the eldest of six, but we don’t choose to be tuakana, do we? That’s chosen for us. But how does that sit with you? Do you still have a protective attitude towards your brothers and sisters?

Absolutely. It never leaves you. And I’ve always had a strong sense that being the eldest, I’m responsible. Even now. So I try to get back to Teko where I’ve got three sisters who live on our farm. They’re Marion, Jenny and Kathy. And there’s my brother Koojee (Philip) who lives closer to Whakatāne. Our other brother, Charlie, passed away about nine years ago. 

You know, there’s things that need to be organised. And it sort of falls on me as the bossy big sister. I’m just making sure they’re okay while I’m trying not to interfere too much now that I’m older.

When I was at university, lots of people would be going off on fancy holidays in the South Island. But I never did. I’d go home and help my whānau. Like lending Dad a hand at shearing time — and also helping his brother, Uncle Sandy, who was on the adjoining farm.  

Mum was teaching full-time so I had to run the household for her at times. Cook for the haymakers, cook for the shearers when they were there. 

That’s the way country communities operate, isn’t it?

Yes, it was a well-oiled machine. And there were quite a few people in the community who just came along and worked and helped out. They appreciated having a bit of pocket money to take back to the universities or wherever they were going.

And always they loved Mum’s kai. She wasn’t a flash cook, but she could whack out the scones and the pikelets, and there was always a roast meal at lunchtime. And big puddings, too.

No doubt your dad was caught up in footy in those days. 

Yes. And I’m a great rugby fan because rugby was the only social connection at that time. Dad was the selector for Rangitaiki, which was our area. And the Saturday routine would be to milk the cows, feed out, and then get dressed up and drive off to Kawerau or Matata or Edgecumbe or wherever. And me and my sisters would jump in the back of the car — Dad couldn’t tell us to get out because he was just too much of a softie. 

You’ve said somewhere that he should’ve been the first Children’s Commissioner. That’s a lovely compliment and a lovely description of him. 

He is a very, very gentle man. Most days, he worked from daylight to dusk, but he’d come back on his horse for a cup of tea before he did the afternoon milking.

But he wasn’t allowed to go off to the cowshed until he gave me and Marion and Jenny (the two sisters after me) a ride on his horse.  

Poor Dad. And at bedtime, he’d piggyback us to bed. He never really growled us. That was poor Mum’s job. She was probably always hapū, so no wonder she was a little bit grumpy at times. But Dad was always very gentle and kind. And all our cousins loved him to pieces because of that.

So, there you were, Frances. You and your siblings growing up in the midst of all that gentleness and caring. But sadly, you’re working in a field where you’re constantly exposed to a different reality.

That’s true. And as a judge, when people were appearing before me in the Family Violence Court, I was very conscious that it wasn’t that they may not have come from a loving whānau, but that, when people are stressed or under pressure, they can lash out in anger. Or they may have been drunk or under the influence of drugs. 

When I was a lawyer, every single child that I represented who’d been taken from their whānau wanted to go back to them, even though some horrific things happen within families. But often it was just families under stress.  

When I was a young lawyer and started doing criminal law, people would ask me: ”How can you do criminal law? How can you act for these people?” I’d say: “I’ve read their background, and I know that their opportunities in life have been limited. I know that they’ve had a tough upbringing.” 

And I’d ask this question: ”If I’d been raised like that, would I have been any different?” And I can’t say, hand on heart, that I would’ve been, because when you’re kicked around physically, sexually and emotionally on a regular basis, that really damages you. 

And I could see that many of the men, particularly our boys and young men, had developed this bravado as a defence mechanism against the pain. It’s not making excuses. But they’re not like that just because they choose to be. 

Let’s turn back for a moment to the days before you opted for law as a career. There was high school at Edgecumbe College. And also a year in Japan on a Rotary scholarship. 

When I came back from there, I went to teachers’ college, which was always what I wanted to do, just following my mum and being a teacher. I was there for just three weeks, but then I transferred to Waikato University for a year. The Japan experience had opened my eyes to possibilities beyond teaching. 

And then you moved on to Auckland uni, where I imagine you had quite a lot of support and comfort from mixing with the Māori club there.

Oh, I wouldn’t have stayed if it wasn’t for that tautoko. I wouldn’t have coped. I went up to Auckland but I hated it at first. I went there with some mates who I’d grown up with. They’d been to St Joe’s and then headed for Auckland. And they said: “Francie. Come up to Auckland University and stay with us.” 

So I did. And we had our first flat at Ōtāhuhu, on Church Road. And, at uni, we all went along to the Māori club. 

He Taua happened that year. We weren’t involved in it but Hone (Harawira) and Hilda (Halkyard) and all of that crew would come to the club. Pretty much everyone who was Māori at university met on the top floor of the Human Rights department. Dr Pat Hohepa, Whare Kerr and Meremere Penfold looked after us.

Every Monday night, we all went up there. We’d kapa haka for a bit and then we’d  maybe talk politics. It was a good group of people who looked after each other. That’s really what it boiled down to.  

But, honestly, I don’t think I would’ve stayed there if it wasn’t for that connection because I found Auckland and the university an exceptionally alien place when I first went there. My only connection was the Māori club. Otherwise it was nothing.

These days we’re watching Māori emancipation and a Māori renaissance. What do you make of the current legal minds reviewing our constitutional and international issues.

Oh, it’s exciting. And amazing. It’s more than I thought would possibly ever happen in my lifetime. I’m stunned by the young Māori minds out there and the work they’re doing — and the way they stick together. There’s still this whānau, whanaungatanga, ahua about them all.

So many more people are getting law degrees and using them in a way that can benefit not only Māori, but also Aotearoa. Let’s watch this space, Dale. It’s just getting better and better.

I know there are critics and there’ve been debates about the Treaty forever. But at least it’s given us a voice. Just look at the inquiries and the principles that keep coming out of the Waitangi Tribunal. Now the next step is to honour the Treaty.  

Then there’s progress with more and more New Zealanders appreciating and respecting the reo and tikanga. We’ve got a long, long way to go, but when I look back and compare it with when I was young, we’ve taken huge steps — and they’re just getting bigger and bigger. So I’m feeling positive about the future.

Frances, you went from being a lawyer to being a judge, and I wonder about the emotional challenges with doing that. Or was that a seamless move? One day you’re representing people and trying to keep them out of the can, and then the next day you might be forced to send them there.

Well, I’d been a lawyer by that stage for almost 20 years. And I wondered if I should keep doing this, which I loved very much. But I saw becoming a judge as a stepping stone to use my skills in a different way.

It wasn’t as seamless, though, as I thought it would be. When you’re representing a client, you put your heart and soul into that case and you’re focused on doing the best job you can for your client. 

Then, when I became a judge, I remember the first time I sat in the Family Court — and I looked at the father and the mother. It was parents arguing over the care of their children. 

And I saw their pain. I saw the toll on both of their faces. And that just about blew me off my chair. I wasn’t expecting it. It’s a different focus where you don’t look at just one side of the story.  

As a judge, you’re having to weigh up all the evidence — and weigh up not just the facts, but also the whole situation, and all the circumstances. And then you have to try to make them realise that you’re there to do what’s best for their child. 

When I was dealing with criminal cases, I was one of those judges who tried hard not to put people in prison, and I’d look closely at alternatives to prison. I think once you send people to prison, you wreck them. And it’s only the most serious of crimes that should warrant imprisonment. 

Also, I tried hard in the criminal court to talk to people and give them some dignity in that awful situation, including pronouncing their name properly. Of course, there were times when I did have to send someone to prison, but it never rested easy with me.  

In recent years, we’ve seen massive innovation with rangatahi courts on marae and, restorative justice. What’s your feeling about those moves?

What’s great about rangatahi and Pacific courts (because we do those as well) is that there’s less formality — and once you get a young one and their whānau in the marae, you’re able to . . . relax isn’t quite the word because it’s always difficult, but you can get some good kōrero going without the formality of a courtroom. 

The idea, of course, is to connect them back to their whānau or their tūpuna and to hear from kaumātua or kuia, or Pacific elders. I believe there are many alternatives to imprisonment and I’d like to see more investigation of them. A lot of crime is because of poverty, addiction to alcohol or drugs, or just people making poor decisions. And a life of imprisonment is not going to do them any good. 

Let’s turn finally to the big job you now have as the Children’s Commissioner. The Commission is now under review. But do you have any special concerns?

The Commissioner has the ability and the responsibility to carve out that role as you see fit. That’s very much what previous Commissioners have told me. And when you read the Act, it’s very much what should happen. So within budgetary and statutory limitations, I represent the voices of all of the young people of Aotearoa. I have a statutory responsibility to stand up and be a voice for their rights. To influence legislation and policy. Part of it was also to monitor Oranga Tamariki. But the new law is changing that. 

It’s an exciting role. And I’ve established, as my priorities, education and access to inclusive education. And what drove me on that one was our mokopuna being expelled from schools and not being put back into schools, and missing out on education.

Also, I’d like us to look at other ways to educate our mokopuna, especially ways that recognise who we are as a Pacific nation, and which don’t just hold on to the western style. The second priority is the mental wellbeing of youth. And the third is ending family violence and helping families heal. I hurt every time a child passes away at the hands of a caregiver, and we as a nation need to look seriously at why that’s happening. 

You mentioned the proposed new law (the Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill) which is making its way through parliament. It’ll mean big changes to your office if it goes through — among other things you’ll no longer be an independent monitor of Oranga Tamariki. What are the key issues for you? 

It’s the difference between having one voice as a champion for children, versus having a board of six commissioners. So it’s about whether there’ll be the agility to be able to advocate quickly and effectively under that new model as opposed to having an independent single person who can just make a decision and go with it. 

Oranga Tamariki definitely needs its practices and procedures overhauled, and that is part of the bill and that’s very important. But it’s also important to remember that those who have used Oranga Tamariki have been under state care. And many of them are our people — and they don’t have faith and trust in the system because it hasn’t worked effectively or safely for them. 

So it needs to be an independent model. And it won’t be independent if it’s part of a government agency, which is what’s being proposed with the Oranga Tamariki monitoring role coming under the ERO. And if it’s part of a government agency then it won’t have the ability to hold the government to account, whereas an independent voice can do that. 

Those are the real issues.

What we need to do is put our mokopuna, our children first, and at the centre of all our decisions. Only then can we make this a better place for them.

Ka pai. And what about your own family?

Well, my husband Allan is Te Aupōuri from Te Kao and we have three gorgeous young men, who are 26, 24 and 19. I’ve always said they’re the greatest achievement of my life. One’s in Dunedin studying and the other two are back home with me in Tāmaki now, so they keep me grounded.

Thank you, Frances, for this wonderful kōrero. All the best for your mahi as our Children’s Commissioner. Ngā mihi ki a koe, ngā manaakitanga katoa. Tuahine, thank you so much.

Thank you too, Dale. 

(This interview has been edited for length and clarity.)

© E-Tangata, 2022