The disturbing case of Moana, the heavyweight influencer and the judges

Dominion Post journalist Marty Sharpe has reported a disturbing case in which Oranga Tamariki and a Hawke’s Bay iwi tried to have a young Maori girl removed from a safe, loving and secure Pakeha foster home because her cultural needs were supposedly not being met.

That in turn has led to an even more disturbing development, also reported by Sharpe in today's paper. I can’t recall a New Zealand judge ever rebuking two of his judicial superiors and effectively telling them to pull their heads in. But that’s what Family Court judge Peter Callinicos did when two senior judges appeared to interfere in a case he was hearing that related to the girl.

Their action created the appearance of the judges, both of whom were appointed during the term of the Ardern-Peters government, exerting influence behind closed doors in a matter that raises politically sensitive race issues. It’s not a good look.

But more of that later. First, the back story, which you can read here.

The little girl, whom Sharpe calls Moana, was traumatised and neglected at the time she was placed in the care of a Pakeha couple living in rural Hawke’s Bay. Moana had been removed from her mother, who had three other children and a fifth on the way, three times in the first three years of her life. Oranga Tamariki couldn’t find suitable whanau to look after her and her father’s identity was unknown.

The Family Court heard that she thrived in the care of the otherwise childless couple, who wanted to raise her permanently. The foster carers appeared to accept the importance of meeting Moana’s cultural needs, and to that end placed her in a school that had a Maori language programme and asked Oranga Tamariki (to no avail) for help in tracing her whakapapa.

A social worker reported that Moana was being raised in a “safe, nurturing and stable environment”, but also told colleagues the little girl was being stripped of her Maori identity. The couple were not aware of these misgivings.

Simultaneously, there appeared to be a suspicion that the couple were trying to obstruct visits with Moana’s birth mother. They were required to undergo a “cultural assessment” – two words that should strike fear into the innocent and well-meaning – but refused to be involved, suspecting it was a ruse aimed at justifying Moana’s removal. Their concern appears to have been justified, since the “expert” cultural assessor raised doubts about their ability to raise a Maori child in the correct cultural manner.

Long story short: Oranga Tamariki arranged to place Moana with a Maori family in Wellington who weren’t aware of her stable living situation and later said it would have changed their thinking had they known. 

When the Pakeha couple found out, they sought a parenting order from the Family Court. Judge Callinicos ruled that Moana should stay with them until a full hearing could be held, recording his “serious concern that a child who has been in long-term placement would suddenly be uprooted … and sent to new caregivers whom I understand the child may have had no relationship with”.

That was in October 2019. Fast-forward to January this year, when social workers, acting on concern arising from a social worker’s conversation with Moana that had been secretly recorded, filed a without-notice application – meaning the couple weren’t told – to remove Moana from their care. The application was supported by Ngati Kahungungu iwi chair Ngahiwi Tomoana, though his legal standing in the case (if any) isn’t explained.

Moana was duly removed from her day care centre and placed with another caregiver. Oranga Tamariki intended to keep her from her long-term caregivers pending an investigation, but an unnamed judge was having none of it and ordered that Moana be returned after just one night away.

At a subsequent hearing, Judge Lynne Harrison was scathing about the behaviour of Oranga Tamariki social workers, accusing one of “entirely unprofessional, grossly inappropriate and psychologically abusive behaviour”.

After delays reportedly caused by Oranga Tamariki’s failure to produce relevant background information, the case eventually came back before Judge Callinicos last month. In the meantime, a psychologist who wrote two reports on Moana said breaking her attachment to her long-term carers could be extremely disruptive and have significant long-lasting implications for her mental health. “The gains made to date could be lost.”

At the end of the hearing, Callinicos promised to explore the background to what he called a terrible situation. “Some things have to be explained as to how we got here because hopefully from that there will be lessons for the future. No child, no whanau, no family should be going through what people here have had to go through.”

The judge’s decision is awaited with interest. On the face of it, this is a case where a vulnerable child’s best interests, if they have been considered at all by those with power over her future, have been treated as a far lesser priority than the heartless demands of race politics and the culture wars.

The case is also a striking counterpoint to the furore in 2019 (also in Hawke’s Bay) over police uplifts of new-born Maori babies who were considered at risk. On that occasion, Oranga Tamariki was accused of riding roughshod over Maori concerns. Ministry head Grainne Moss lost her job as a result. But the case reported by Sharpe suggests a strong current pulling in the other direction.

I suggest you read Sharpe’s full account, because I’ve omitted quite a lot of detail. But in the meantime, the case has taken a worrying turn.

According to Sharpe, Sir Wira Gardiner, who took over Moss’s job at Oranga Tamariki with instructions to sort the troubled ministry out, objected to the way Callinicos questioned social workers in the “Moana” case and made his concerns known to the Chief District Court judge, Judge Heemi Taumaunu, and principal Family Court judge Jackie Moran. Gardiner reportedly claimed that the social workers had been bullied.

What was said between Gardiner and the judges isn’t known, according to Sharpe’s account, but it led to meetings between the two senior judges – known as the Heads of Bench – and Oranga Tamariki. There was a phone call and letters.

When the judges later relayed their concerns to Callinicos, he reportedly responded by reminding them that it was inappropriate to approach a presiding judge to discuss any aspect of a part-heard case.  It was, he said, a breach of judicial independence.

I’m not a lawyer, but I wouldn’t have thought this was something that needed to be pointed out to two senior members of the judiciary.

Callinicos told parties to the hearing he believed the judges’ actions could be seen as having the potential to affect his impartiality. He invited the parties to apply for him to be recused from the case, but only the lawyer acting for Moana’s mother did so. Callinicos rejected her application.

I’m aware that Callinicos himself has come in for criticism during his time on the Bench, notably for his role in a previous Family Court case that was cited in the application for his recusal, but on the face of it he appears to have been justified in calling out his seniors.

Appearing to exert influence behind the scenes – which, if Sharpe’s report is to be believed, is what happened here (and you can be sure the story would have been rigorously vetted by Stuff’s lawyers) – seems fundamentally at odds with the notion of open justice. The involvement of a heavyweight Wellington influencer like Gardiner (who coincidentally stood down this week, citing health reasons) does nothing to diminish the impression that the judges’ intervention in a case with political overtones was – how can I put this? – irregular.

We pride ourselves on having a judicial system that’s untainted by politics, but people reading Sharpe’s story will be justified in wondering whether that principle is inviolable.