Investigation – Newborn removal without notice ‘more by routine than exception’ – Chief Ombudsman – With link to report

Oranga Tamariki-Ministry for Children has been using its powers to remove newborn pēpi from their parents under a without notice Court order more by routine than exception, says Chief Ombudsman Peter Boshier.

Mr Boshier today released He Take Kōhukihuki | A Matter of Urgency , his investigation into the policies, procedures and practices of the Ministry for the removal of newborn pēpi under interim custody orders.

“Removing newborn pēpi from their parents is one of the strongest uses of state power. New Zealanders must have confidence in how the law is being applied”, Mr Boshier says.

“The Oranga Tamariki Act permits the Ministry to act quickly to ensure the safety of pēpi who are at immediate risk of serious harm”, Mr Boshier says.

“The Ministry has a range of possible responses at its disposal. Section 78 applications for interim custody are meant to be reserved for urgent cases where no other options are available. And as a matter of fairness and law, they should be made without notice in only the most exceptional cases”, Mr Boshier says.

Mr Boshier examined 74 case files of pēpi from nine Ministry sites, who were aged up to 30 days old and were subject to a section 78 custody application by the Ministry over a two-year period, ending 30 June 2019.

“In most cases the Ministry knew about the mother’s pregnancy for months before the birth. There was time for the Ministry to engage with parents, whānau, and other parties to determine the best place for pēpi”, Mr Boshier says.

“I found decisions were being made late, without expert advice or independent scrutiny, and without whānau involvement. This meant other options were often not fully explored, and in almost all cases a without notice application was made”.

Mr Boshier says high caseloads and limited numbers of Māori specialist staff appeared to be contributing factors.

“This appeared to result in cases involving unborn pēpi not being prioritised until the birth was imminent”, Mr Boshier says.

“I believe the level of urgency around a without notice section 78 application at the time of pēpi’s birth was often created by the Ministry’s inaction and lack of capacity to follow processes in a timely and effective way”.

Mr Boshier found that all the cases he reviewed required a disability rights-based response from the Ministry. Over 20 percent involved parents with intellectual disability. However, the investigation found that these parents did not get the assistance or advocacy they required.

“As someone with oversight under the Disabilities Convention, I was very concerned to find that the rights of disabled parents were not visible in either policy or practice”, Mr Boshier says. “This is a significant breach of the Convention”.

“There was also minimal evidence that the Ministry had involved parents and whānau in planning the removal process”, Mr Boshier says. “Late and limited pre-birth planning, communication and information sharing with District Health Boards were key issues.”

“When the Ministry executed the removal decision, I found that parents and whānau were not provided with opportunity for ngākau maharatanga me te ngākau aroha; a period of ‘quality time’ that reflects consideration, empathy, sympathy and love.”

Mr Boshier also found that there was no support offered to parents and whānau to deal with the trauma and grief of their being pēpi removed, while mothers who wished to breastfeed got only limited support.

“The Ministry has the tools and resources to meet the requirements of the Oranga Tamariki Act”, he says. “While I have identified systemic issues with the Ministry’s practice, I also found evidence of good practice at the sites that had formal partnerships with iwi and valued Maori specialist staff.”

“The Ministry must build on these successes to achieve true transformation by 2022”.

The Chief Ombudsman has made 32 comprehensive recommendations, including improvements to the Ministry’s guidance and practices; the use of all tools available in a timely way; establishing effective reporting frameworks and quality assurance; prioritising engagement with whānau, hapū, and iwi; and enhancing cultural competency of staff.

“I thank the Ministry for engaging so constructively with my investigation. My Office is available to assist with implementation of my recommendations, and I have asked for quarterly reports on progress”.

– Watch a video of the Chief Ombudsman talking about the report’s key findings.