Taken By The State

Baby uplift case breached legal processes

Auckland law professor Mark Henaghan says there were serious flaws in the legal processes used by Oranga Tamariki in its attempts to take a newborn baby off its young Māori mother.

Oranga Tamariki’s plan to 'uplift' the baby was stalled after local kaumatua brokered a deal for the mother to stay at a home that supports young Māori mothers in Hawke’s Bay.

The child welfare agency had been granted a custody order on May 2 but a temporary agreement was reached following a tense standoff between Oranga Tamariki, police and the mother’s whānau and midwives at Hawke’s Bay hospital five days later.

The 19-year-old mother refused to hand over her baby despite repeated attempts by Oranga Tamariki to take it away from her.

The baby’s future will be discussed at a family court hearing on June 19. The mother’s lawyer has applied to have the custody order rescinded.

Henaghan says it’s doubtful that the custody order should have been granted in the first place, without hearing from the baby’s parents.

The Oranga Tamariki application for a custody order on May 2 was made “ex parte” or without notice to the baby’s whānau.

“An ex parte application is an exceptional proceeding where there is no time to let the other side be heard because of the risk of undue hardship and harm. In this case the application was made on the 2nd May but not executed until the 6th May.

“A four-day gap shows the situation was not urgent. The baby was safe in the hospital with the mother and her supportive whānau. There was plenty of time to serve the intent to remove on the mother and father and give them time to respond and show the safety measures for the child and mother that were in place.”

Professor Mark Henaghan says it's doubtful the custody order should have been approved. Photo: George Murahidy

Henaghan also has serious concerns about Oranga Tamariki’s affidavit evidence put before the court on May 2:

“The affidavit supporting the application was not by the case worker who had been working with the family. It was given by another social worker who could only have got their evidence second-hand which is hearsay.

The social worker who provided the affidavit said she had only spoken briefly with the case worker for the family and read the notes that the case worker had prepared.

"There is always a danger in second-hand evidence being used on such an important issue as removal of a newborn baby.

“It is therefore not surprising that many of the facts in the affidavit are heavily disagreed with by the whānau.”

In her affidavit supporting an application for a court order to uplift the baby, the social worker said there were ongoing family violence issues between the baby’s mother and father.

She also cited drug use, lack of parenting skills, and transient home environments as reasons to uplift.

Professor Henaghan told Newsroom the High Court has emphasised that the evidential threshold for removing children without notice to the family is high given the devastating effects on families of even temporarily removing children from their environment.

“In this case the affidavit evidence put before the court by Oranga Tamariki does not, in my view, meet the high threshold set by the High Court to have a child removed without notice to the parents and giving them an opportunity to be heard.”

The mother had a previous baby to the same father removed from her when she was 17. It is now in the temporary care of a British couple. Newsroom understands Oranga Tamariki is planning to place her newborn baby with the same couple.

According to Professor Henaghan, when a second baby is taken from a mother, section 18 B of the Oranga Tamariki Act requires a mandatory assessment of whether the mother is likely to inflict harm on the child or allow others to inflict harm. He noted there appeared to be no evidence an assessment was done in this case.

A review of court documents has also lead Henaghan to the view that the court may have been misinformed.

All afternoon on May 6, Oranga Tamariki had unsuccessfully attempted to uplift the baby but in a memorandum filed in court that day it states “uplift took place today [May 6]”.

In fact, the baby and the mother, surrounded by their whānau were still at the hospital and another unsuccessful attempt to uplift the baby took place on the night of May 7.

“This (memorandum) may well have convinced the judge that there was no point responding immediately to the application by the lawyer for the family to stop the uplift as it was too late and the child had already been removed.

"Misinforming the court is a serious matter. Lawyers are officers of the courts who the court must trust and be able to rely on."