A few thoughts on that Moana decision

 As a matter of record, I should note that Family Court judge Peter Callinicos delivered his judgment last week in the case of “Moana”, the six-year-old Maori girl whom Oranga Tamariki wanted to remove from her Pakeha caregivers because her “cultural needs” were supposedly not being met (these apparently taking precedence over all her other needs, such as warmth, love, affection and physical wellbeing, which were). I was away when the judge’s decision was announced but mention it here in case people who had read about the case on this blog missed the news stories.

As Stuff’s Hawke’s Bay reporter Marty Sharpe reported here, Judge Callinicos ruled that Moana, who was traumatised and neglected before being placed with the Pakeha couple, should remain in their care. His decision will be widely applauded as a triumph of compassion and humanity over the grotesquely cruel and inhumane demands of the culture wars.

Sharpe reported that the 145-page decision “includes stark criticism of Oranga Tamariki, its chief executive and numerous of its staff”.

“The judge was particularly scathing of Oranga Tamariki staff members’ failure to appreciate the need for honesty and accuracy when compiling statutory reports, and concluded that social workers appeared to place little importance in documents that were vital to a child’s wellbeing.”

Judge Callinicos said the ideal goal in such cases was to have children of a specific cultural group placed with caregivers from the same family or cultural group, but “sadly that may sometimes not be achievable”. The key flaw in such a belief-driven approach was that it distracted from the mandatory consideration of what was holistically best for the child, he said. (Pause here for further applause.)

Most tellingly, the judge said Oranga Tamariki’s insistence on removing Moana from the couple’s care showed the agency was either incapable of seeing the wood for the trees or that it was driven “more by ideology than workable child-centred outcomes”, or both.

Oranga Tamariki’s claims that the couple were “stripping [Moana] of her whakapapa” were found to be groundless. In fact Callinicos noted there was overwhelming evidence that the agency failed to provide the couple with any support to build their "cultural capacity", and neglected their requests for more information on Moana’s whanau and whakapapa.

This suggests the agency’s professed concern for her cultural needs was a sham, serving only as a pretext to get her away from caregivers whose sole failing was that they are not Maori.

The judge clearly wasn’t unsympathetic to the view that Moana should know about her cultural heritage. He ruled that while she should remain with the Pakeha couple (whom Stuff called the Smiths), her guardianship should be shared by Mr Smith, Moana’s birth mother and the Maori caregiver Oranga Tamariki had intended to place her with, who will look after Moana for several weeks each year and who has “strong and competent links to whakapapa and whanaungatanga (kinship)”.

So – all done and dusted, then? Er, no. A follow-up story by Sharpe revealed that Moana’s birth mother – no doubt funded by the taxpayer and egged on by activists – will appeal the judgment. The social justice zealots in the front line of the culture wars don’t give up easily, especially when they know there’s a good prospect that a higher court will be more easily swayed than the redoubtable Judge Callinicos by ideological arguments that place racial considerations above human needs.

Naturally, Ngahiwi Tomoana, head of the Ngati Kahungungu iwi that supported Oranga Tamariki’s bid to remove Moana from her Pakeha caregivers, supports the appeal. Stuff’s stories don’t explain Tomoana’s legal standing in the case (if any), and neither do they reveal what (if anything) the iwi did to provide practical support for Moana’s birth mother or help her Pakeha caregivers trace her whanau. But that hasn’t stopped Tomoana from grandstanding on the case and using it to promote separatist models of care.   

“The days that [sic] judges can tell us we’re not good enough anymore are over,” Stuff quotes Tomoana as saying. “This is just another case of other people thinking they know what’s best for Maori.”

No, it’s not; it’s a case of a judge humanely stepping in where others – including Ngati Kahungungu, quite possibly – failed to protect a vulnerable, damaged child.  Why should Moana be made an innocent pawn in the culture wars? That’s ultimately what this case was about.

The matter still has some way to run, and not just because of the pending appeal. There’s also the small matter of the two senior judges who allegedly intervened in the case at the urging of Sir Wira Gardiner, who was then acting head of Oranga Tamariki. The two judges’ actions, for which they were rebuked by Judge Callinicos, are now the subject of a complaint to the Judicial Conduct Commissioner – although no one who has observed how the legal and judicial establishments protect themselves will be holding their breath in the expectation of a salutary outcome.

Beyond that, there’s a risk that Labour’s powerful 15-strong Maori caucus – almost a government within a government – will push to change the current Family Court rules so that iwi input in similar child care cases will be prioritised over other factors. Respected welfare commentator Lindsay Mitchell thinks Judge Callinicos, inadvertently or otherwise, has pointed the way in his judgment.  

What, then, of Oranga Tamariki? In normal circumstances, scathing judicial criticism of a government agency – including implications of dishonesty – would prompt, at the very least, a rigorous internal review. But these are not normal circumstances, and it’s likely that the febrile internal culture at Oranga Tamariki is too securely entrenched to be threatened even in the unlikely event that the bosses feel moved to act. Stuff quotes chief executive Chappie Te Kani as saying he will take time to consider the judge’s findings. I bet he will. And you can be sure there’ll be no pressure from the Beehive for Oranga Tamariki to change its ways.

Still, the case is encouraging for a number of reasons. A Pakeha couple cared enough for a vulnerable Maori child to fight on her behalf against Oranga Tamariki and its scheming social workers, and an independently minded judge cared enough to rule in their favour despite knowing, as he must have done, that there would be a backlash.

Oh, and a reporter brought this important case to public attention, reminding us why society still needs good journalists. Full credit to Marty Sharpe, then, and to Stuff for publishing his stories. There’s still some hope.