Saturday, August 21, 2021

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.



Max Ritchie said...

It’s extraordinary that the two judges would become involved and just as extraordinary that Wira Gardiner would try to involve them. Wira has serious health issues and is unlikely to be further involved in this case but the judges - all three of them now - will be. I wonder if anyone has asked Moana what she wants?

Andy Espersen said...

This whole story is absolutely terrible to follow. I am very grateful to you, Karl, for reporting on it all so thoroughly. Please keep it up.

If all New Zealanders get to know all this there will be a wave of fury against the abhorrent, blatantly racist performance by the Ardern government.

Hilary Taylor said...

Disgraceful. I recall my mother speaking of children 'passed around like brown paper parcels'...something that stayed with me. The child was benighted from the start, offerred succour and safe harbour, finally...and folk want to upset that for... their own spurious ends? I hope that couple fight to the bitter end & the judge doesn't buckle.

Ken said...

Judge Callincos is straighter than the proverbial arrow. Much needed for this sort of case.

Steve said...

I know Judge Callinicos personally and a nicer, more straight-up man you’ll never meet. Good on him for standing up to this blatant maoridom racist nonsense. New Zealand desperately needs more people like Peter Callinicos to call this crap out.

Joe and Deb USA 2014 said...

I'd like to offer my support to Moana's parents (the couple currently raising her).
To turn a child from traumatised to thriving has taken a huge about of love, patience and care. In return they have been put through hell it seems. I can only imagine what it would have been like to arrive at day care to find she has been uplifted. I think at that point I would have lost my mind at the injustice of it all.
Thanks for sticking with the fight, it will hopefully lead to better outcomes for other children as well.
It's my sincere hope that they will become her forever parents. No-one else will do a better job.

Andy Espersen said...

Since last night I have tried to forward this article to some family. In my letter I write the link to the article. It cannot be sent - They tell me it is due to possible spam content. I can send all other correspondence, no problem.

Has any of your commenters had a similar experience by any chance?

Odysseus said...

Good governance is being undermined at every level it seems. What next? Will Ardern unilaterally suspend Parliament this coming week?

David George said...

Sorry to hear of the link problem Andy. Have you tried copying and pasting the essay in it's entirety.

Mark Hubbard said...

I'll simply copy and paste a tweet I made related to the matter, vis a vis the judiciary issues:

'Problem is our judiciary now came from the woke of our age, left, social activists, Minto-lites, who are in thrall to the state, are anti-individualists, definitely anti-capitalists & do not understand that an objective law on classical liberal tenets, is foundational for a free society.'

Doug Longmire said...

Another point:- If the child had been pakeha, (I actually hate that word) fostered by a loving Maori couple, would the activist Ministry for Children have demanded that the child be removed because of failure to provide appropriate cultural needs ?

Doug Longmire said...

My point here is:- sauce for goose, sauce for gander.
I recall when I worked for Medsafe back in early 1980's the ladies in the typing pool had a poster on the wall entitled in large block lettering "Grow your own dope - plant a man". They thought it was very amusing and mildly provocative. They used to mildly tease me with it.
All good fun. One of them asked if I found it offensive. I said "no not really, but how about if you switched the wording to "plant a maori" ? They looked horrified and said no that would be highly offensive.
Sauce for goose......

D'Esterre said...

I've followed this story, both Sharpe's account of the Family Court case, and that of the attempted judicial intervention. I don't think much of Stuff, but we have to be grateful to it for allowing these pieces to be published.

I'm horrified, both by the appalling way in which an innocent child has been treated, evidently in pursuit of contemporary ideology at OT, and by the treatment of the foster parents. It says everything we need to know about the pernicious developments at OT in recent times.

The attempts at judicial intervention are simply unbelievable; I cannot think of another case like it here. What on earth were they thinking? Obviously not about the constitutional issues. Thank god that Judge Callinicos wasn't prepared to bend to it. More power to him.

D'Esterre said...

Odysseus: "Will Ardern unilaterally suspend Parliament this coming week?"

Yup: that's what she's done. To hell with democracy, evidently.

Gary Judd said...

Judicial independence is an indispensable principle of a liberal democracy and the rule of law: see Joseph on Constitutional and Administrative Law, 5th Ed, 845. Going on, Joseph says that the late Sir Robin Cooke stated in a 1988 speech to a law conference, it was one of two “unalterable” fundamentals that might arguably lie beyond legislative reach. In other words, Cooke was suggesting, possibly it is so fundamental that even Parliament cannot abrogate it.

The other “unalterable” fundamental identified by Sir Robin — arguably New Zealand’s most distinguished jurist and certainly the judge whose judgments are the foundation for Treaty jurisprudence — was the operation of a democratic legislature.

Section 4 of the Lawyers and Conveyancers Act 2006 provides that upholding the rule of law and facilitating the administration of justice in New Zealand is a fundamental obligation which every lawyer who provides regulated services must comply with during his or her practice. The section does not literally catch the Chief District Court Judge and the Principal Family Court Judge who have ceased to be lawyers, but it was an obligation to which they were subject when they were lawyers.

Karl du Fresne is right to label it as a disturbing case. It certainly is, not because heads of bench should not have something to say to a judge who is thought to have acted improperly, but because this case was part-heard and the judge was (presumably still is) yet to deliver judgment.

Andy Espersen said...

Reading this, it is immediately obvious that Gary Judd must be a lawyer. I really am thankful to you, Gary, for coming out like this under your own name. I can imagine that will be frowned on in some legal circles as somehow "taking sides".

The prevalent fear of "taking sides" is an abomination : We should all be ready and willing to stick our necks out, under our own names - and at all times. A free, open society.

Easier said than done - if you may lose your livelihood in the process!

Graham Hill said...

I concur with Mr Judd.

My unfortunate experience, and as a former lawyer, is that lawyers can be involved in breaches of the rule of law. The Nuremberg laws were also laws of the state and the officer corps of the SS was largely made up of lawyers. There is no magical incantation (though pronouncing the words "rule of law" might approach such an incantation) or wand-waving that makes probable lawyers as guardians of the rule of law. If it were so the Noe Marxist "feminists judgments project, with its intersectional mummery, would have been canned long ago. Also, there would not have been censorship in Law Talk of Jordan Peterson. The rule of law, by the way, is not, as Professor Niall Ferguson says, the rule of lawyers. Yet it is a good start.

There is a greater dynamic at play here. It also features in the "hate speech' proposals. The present rule of law system is based on individual rights not collectivist Neo Marxist ones. Social Justice is NOT legal justice as it is an imposition of prejudice and liability. There is no possible interface. Woke Social justice determines in advance by one's membership to a group one's guilt (sub nom "privilege'). I know of Judge Callinicos, who is a competent and very experienced family law judge as he was as a practitioner, who would have focused on the interests of the child which are paramount, not an a priori presumption pertaining to CRT.

What we have here is a striking example of the corruption of the Clerisy (as with the MoEd and possibly MSD)- which has adopted critical race theory- and raises the issue, which I raised in my submission on hate speech, has our current weltanschauung been subverted and over thrown by Neo Marxism? Most lawyers are anti intellectual and won't see the issue as it really is as such their role of guardians of the rule of law is in question. There would have been a lawyer arguing for the social justice CRT position

Graham Hill said...

Addenda: Mr Judd correctly makes the point that s 4 of the Lawyers and Conveyancers Act 2006 enshrines the rule of law (which includes human rights). That is correct, but how? There is one legal pundit of some influence who maintains that the s4 provision is merely declaratory and of no substantive effect. I have tried to litigate it has a substantive effect but the LCRO was not up to the task.

Andy Espersen said...

I have a question (OOPS, relating to Covid regulations - so actually not relevant to this blog!), which I would be grateful to our two lawyers for responding to :

I know that our accepted, legal "human rights" do not specifically, or verbatim, include the right to enter your own country at any time - nor the right to leave your home whenever you like - nor the right to visit any friend or family at any time, day or night - nor the right to perform your lawful occupation without hindrance.

Should not (must not) those "rights" be regarded as constitutional rights?? How can they, in a democratic country, be negated without a public referendum by citizens??

D'Esterre said...

Andy Espersen: "We should all be ready and willing to stick our necks out, under our own names - and at all times. A free, open society."

I agree. And until relatively recently, I commented under my own name. I have (sometimes unpopular) opinions, expressed forthrightly. I have no problem with having my name associated with those opinions.

However. Because my name is distinctive, I'm easily found and contactable. Complete strangers have approached me. I'm not specially bothered by this, but my family finds it intimidating. And of course in the contemporary environment, one never knows when verbal reactions might morph into something physical. So I've resorted to a nom de guerre.

I'd much prefer not to have to do this, but needs must and all that...

Andy Espersen said...

D'Esterre - I absolutely understand – and I am very happy to note that you (like my childhood hero The Scarlet Pimpernel) are now operating under a nom-de-guerre, rather than under a nom-de-plume!

Graham Hill said...

Mr Espersen asks about the rights of movement.

ICCPR 1966, which is part of NZ law Art 12 1 and 4. But these are subject to justified limitation at law under NZBORA 1990. Anyway, I wouldn't waste my time with it in Court here where a Judge's eyes will glaze over having observed the same in a case involving ICCPR rights of privacy when argued by a QC.

The Spectator Australia today has an article where the right of people to return to their country is discussed pursuant to UDHR 1948 Art 13.

D'Esterre said...

Andy Espersen: heh! yes, nom de guerre seems more appropriate, given the apparently inflammatory nature of some of my comments.

I saw somewhere recently the term "nom de fusil" being used. That'd work too.