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Bad policy – a loaded dice

Policies shape actions and decisions made by staff. So what's the effect of bad policy? Bad decisions, hurt people and so much more.

The big example last week was the Oranga Tamariki Pratice Review into the Hastings case.

The review and discussion after it mainly focused on the actions of staff. It's shocking reading.

Key findings include that:

  • there were legitimate concerns for the safety of the baby warranting involvement by Oranga Tamariki (OT)
  • not enough consideration and weight was given to options of parental, whānau, hapū or iwi care of the baby
  • engagement with the parents, whānau and NGO partners was inadequate
  • the social workers didn't properly understand or act within their statutory delegation
  • the basis for applying for an interim order without notice was "weak" and a with-notice application should have been possible
  • mechanisms to check the exercise of statutory duties and powers did not operate effectively.

But is there more at issue? Yes! The OT policy framework that underpinned the decisions and actions that occurred.

Policy was relevant 

The actions of staff within OT, as in any other organisation, don't exist in a vacuum. They are shaped by organisational context and policy. In this case, the policy framework reflected in the Oranga Tamariki Act 1989 ("the Act").

The case review indicates that staff were effectively biased against the options of leaving baby with the parent(s) or whānau members.  It suggests that staff should have been more open.

But the bias was not surprising. The parent in the case had apparently had a previous child removed from her care. The case review indicates staff believed that the "subsequent children" provisions of the Act applied. These provisions basically prescribe bias.

Subsequent children provisions

The "subsequent children" provisions were passed into law as part of the last National Government's "vulnerable children" agenda (sections 18A-D of the Act).

The provisions basically prescribe that if a parent has previously had a child permanently removed from their care due to abuse or neglect, any subsequent child who comes into their care will be regarded as "in need of care or protection" unless that parent can demonstrate they are safe to care for the child.

The parent is not barred from parenting their subsequent child. But the dice is loaded against them.  Whereas OT usually has to investigate and substantiate care and protection concerns, the onus lies on the parent to show OT they can safely parent the subsequent child.

The provisions were considered justified by the government because evidence shows increased risks to subsequent children. However, risks are already considered as part of assessment along with evidence of change and signs of safety.

A bad policy choice was made and the subsequent children provisions passed into law. The adverse effects are that:

  • they skew the Ministry's and court's  assessment towards risk and away from protective possibilities (as appears to have occurred in the Hastings case)
  • they stigmatise a parent previously involved with the Ministry
  • they come close to "once a bad parent always a bad parent"
  • they potentially alienate a child from their cultural identity and turangawaewae
  • they may be discriminatory - likely to impact most on whānau Māori (given the disproportionate number of Māori in care and likely disproportionate number of subsequent parents who are Māori).

Bad policy. It's no wonder that the social workers in the case were closed against the possibility of the parents caring for their baby.

Policy implementation

Another policy problem identified in the case review was that legislation and Ministry policy wasn't properly complied with.

For example, staff misapplied the subsequent parent provisions (1).  They failed to engage with the parents, whānau and involved NGOs and to implement the Ministry's cultural framework and standards for working with tamariki Māori (eg Whakamana te tamaiti - empowering the Māori child).

These failures raise questions about how the policies were implemented - the extent of resourcing and support for staff in the regions to implement the policies and standards.

Policy implementation is often a weak point for agencies- statutory and non-government. It requires resources, commitment and perseverance from an agency to embed policy in a systemic way. One-off training and induction just doesn't cut it.

Recommendations

The case review makes some important recommendations for change. But it could have made more.  Good news- we can expect a lot more effort and commitment from Oranga Tamariki to:

  • engage with whānau and NGOs
  • embed the cultural practice standard - Whakamana te temaiti
  • support and resource implementation of policy and legislation across sites in the regions.

Outstanding

But the review raised some important issues. They weren't addressed and are outstanding. These are about the need for:

  • repeal of the subsequent children provisions, replacing it with policy that works to support parents to safely care for a subsequent child
  • mechanisms for early engagement of and accountability to iwi/Māori for decisions about their mokopuna.  The case review recommended more oversight and checking of decisions before an application for an interim custody order without notice can proceed. However, the checks continue to be internal (the only exception is the community resource panels). What about external involvement of the iwi to which a child links through whakapapa?

 

(1.) All the conditions of section 18B were not met (ie court determination wasn't made) and s18A treated as relevant to whānau members.

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