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.  

 

Three things I'm scratching my head about this morning

A few questions to start the day.

■ Newshub’s 6pm news reported that the man who ran amok with a knife at a Countdown supermarket in Auckland was shouting “Allahu Akbar” (“God is great”) before police shot him dead.

I could find no mention of this in other media coverage, apart from a Reuters story that cited a New Zealand Herald report. But I scanned the Herald’s stories this morning and saw no reference to it.

Neither was there any mention of the alleged shouts of “Allahu Akbar”, a phrase associated with Islamist terrorist acts, on the Stuff or RNZ websites. Yet Newshub referred to it several times and interviewed a witness who said she heard it.

This suggests three possibilities: 1. Newshub and/or its witness got it wrong; 2. Other witnesses either didn’t hear it or think to mention it to other media (though that seems unlikely, especially in view of the Herald report quoted by Reuters); 3. Other media outlets were told about it but chose not to mention it.

If it were the latter, why would the media engage in self-censorship? Presumably to avoid arousing hostility against the Muslim population.

That’s understandable up to a point, since New Zealand Muslims can no more be held responsible for the actions of the lone-wolf terrorist than New Zealanders can be blamed for the Christchurch mosque shootings, which were also the work of a solo perpetrator.

But it’s also misguided, because the duty of the media in such situations is to convey information. Yes, we know from the prime minister and the police commissioner that the Auckland terrorist was inspired by Isis, so it could be argued that the fact he shouted “Allahu Akbar” was just an irrelevant additional detail.

But in a major event like this, every bit of information is relevant because it helps the public build a fuller picture of what happened.  I hope I’m wrong in speculating that the media may have intentionally suppressed a significant detail. But since the culture wars permeated the news columns, we can no longer be confident that the media are concerned only with presenting the facts.

■ The Dominion Post’s Marty Sharpe reports this morning that human rights lawyer Tony Ellis has asked Attorney-General David Parker and Chief Justice Helen Winkelmann to take action over two senior judges who intervened in a Family Court case that didn’t involve them.

Readers of this blog will be aware of the background to this affair. Sir Wira Gardiner, then the acting boss of Oranga Tamariki, spoke to Chief District Court Judge Heemi Taumaunu and Principal Family Court Judge Jackie Moran about Family Court judge Peter Callinicos’s conduct in a part-heard case involving a Maori child placed in the care of Pakeha foster parents.

Taumaunu and Moran subsequently took the matter up with Callinicos and were sharply rebuked by him for interfering in the case and thus breaching the principle of judicial independence.

Ellis has now complained to the Judicial Conduct Commissioner about the judges’ behaviour, but thinks Parker and Winkelmann should take up the case because it raises issues of constitutional importance.

Sharpe reports that Parker has backed away, saying it’s not a matter for the Attorney-General, and Winkelmann has declined to comment. Well, fancy that.

Sharpe, who has the terrier-like qualities required of a good investigative journalist (and thank God we still have some), also approached the Law Society. It didn’t want to get involved either. In fact the society’s president, Tiana Epati, said the society was not aware of the facts of the case, other than what had been reported, and wouldn’t speculate on whether it raised issues of public importance.

This seems extraordinary. If you entertained the fanciful notion that the Law Society had an interest in ensuring judicial probity and upholding public respect for the law, you were clearly deluded. The society’s so unconcerned that it hasn’t even bothered to acquaint itself with the case beyond what the rest of us have read in the paper.

Here’s my question, then: why doesn’t the Law Society get involved? Perhaps it doesn’t have to, strictly speaking, but what’s to stop it? Shouldn’t it be concerned with upholding confidence in legal and judicial processes and institutions? Even a statement of concern or support for an investigation would count for something. Or is the society worried that if it looks into things too closely, it might find itself in the embarrassing position of having to take a principled stand?

I frequently hear from good, honest people whose dealings with the law have led them to the bitter conclusion that the legal and judicial establishments are adept at closing ranks and going to ground whenever awkward questions start being asked about dubious conduct.  The Law Society’s complacent, look-the-other-way stance will cement the impression that the law is a club that protects its own.

■ It’s also reported this morning, in both the Dominion Post and the Wairarapa Times-Age, that a proposed water storage dam near Masterton has been canned after 20 years of planning and a reported bill of $12 million. Just like that.

Tim Lusk, the chairman of Wairarapa Water Ltd, the company promoting the scheme, said the 20-million cubic metre dam had been abandoned because environmental planning rules had changed rapidly, making the obtaining of consents from Greater Wellington Regional Council “extremely challenging”.

No elaboration was provided. We apparently just have to take his word for it that a scheme described in July 2019 as “eminently consentable” is suddenly too difficult.

So the public who paid for the preparatory work are expected to stoically shrug it off and walk away? Good luck with that.

There are a whole lot of questions to be asked here. For a start, it would be helpful if someone could explain glaring discrepancies in the reported figures. Piers Fuller, the Dom Post’s Wairarapa reporter, says $12 million has been spent. He’s been covering it for years, so he should know.

But the Times-Age refers only to $7 million from the Winston Peters Re-election Fund – sorry, the Provincial Growth Fund – of which it says $5 million has been spent.

Either way, we’re talking about serious money. Where did it go? And while Lusk and local MP Kieran McAnulty are engaging in acts of conspicuous public lamentation over the death of the scheme (“I’m gutted,” said McAnulty), it would be a lot more helpful if they explained exactly why it turned out to be a crock. The public is entitled to more than a glib statement that it’s suddenly too tough.

The regional council’s role in the debacle, in particular, needs explaining. It was a backer of the scheme, contributing $7 million to early investigations (it doesn’t sound a lot of money if you say it quickly, and after all there’s plenty more where it came from – i.e. ratepayers and taxpayers), but the same organisation, as the consenting authority, presumably imposed the environmental conditions that killed it off. How does that work?

The people of the Wairarapa deserve a more convincing explanation for what appears, on the face of it, to be a scandalously wasteful fiasco. But I’m not holding my breath.