Foster parents fight for rights
Even a simple haircut can cause a battle with birth parents – and the instability is no good for the children. Amy Maas reports.
To be a foster parent in New Zealand, you have to accept some conditions. If the young child placed with you wants their ears pierced, you need to get permission from their birth parents.
If they’re due a vaccination or some other medical treatment, the birth parents will have to OK that.
A haircut? Consent is needed for that too.
And every two years, you run the risk of losing the child in your care if the birth parent chooses to challenge you.
Maybe a parent won’t challenge you for their child. Maybe they won’t mind a haircut, an ear-piercing or a medical appointment. But if they do, a young child’s stability in their new family could be threatened.
‘‘The reality is these kids come to us, they’ve had trauma from all kinds of areas,’’ says Frances Russell, head of the Foster Parents Collective NZ.
‘‘Then to have the stability of that placement challenged constantly and then having to constantly consult with birth parents actually makes it so much harder, and that will have an effect on our children.’’
The collective is lobbying for change. It made a submission to Children’s Minister Tracey Martin in November last year.
‘‘We just kept seeing the same issues coming up again and again . . . it was almost a weekly occurrence that these things would come through.’’
Martin’s office says a law change may be considered, and ‘‘will be on the work programme soon’’. But it’s not a ‘‘priority’’ while she deals with the fallout from multiple reviews of Oranga Tamariki’s uplifting of babies considered at risk.
Martin – like the agency – is also in the midst of implementing an entirely new operating model for the care of vulnerable kids.
‘‘I’m aware of the challenges and tensions that can arise for some caregivers because of our guardianship laws,’’ she says.
‘‘The Foster Parents Collective’s submission sets these out – but they are essentially to do with our laws recognising the ongoing rights of birth parents and the wellbeing and best interests of the child.’’
It might not be a priority for Martin, but it is for the collective. Its submission collated more than 2000 responses from people who have experience with Oranga Tamariki.
In one case, a child needed to be tested for HIV and other infections, but it took more than a month to track down the birth mother. Once social workers did, they weren’t able to let the birth father know about the background to the testing, and had to give up on asking for consent from the birth mother. It’s unclear whether the child was ever tested.
In another, a family member of a child believes he died from
an aggressive brain tumour after his mother refused radiotherapy treatment. The family member said she believed ‘‘her failing to give consent in time was a part of the cause of his death’’.
Stuff understands that the child’s tumour was incurable, but a coroner’s report states that radiotherapy may have lengthened his life. Oranga Tamariki was unable to comment on this case due to privacy.
Another child was left battling serious ear infections after a birth mother could not be found to sign for consent for grommet surgery. It took three months before she was found and the surgery rescheduled.
A social worker then needed to sit with the birth mother in the waiting room to make sure she stayed long enough for the consent to be signed off.
In less serious cases, children have been refused haircuts, ear piercings, overseas holidays with their foster families, or bank accounts opened by the foster carers.
When a placement is challenged by a birth parent, it means the case is heard before the
Family Court. In one case, a child’s placement in a permanent home under the Care of Children Act was challenged by the birth father at the twoyear mark. However, he failed to show up to the Family Court hearing on the day, causing the family ‘‘huge stress, fear and trauma of losing each other’’.
Many foster parents approached by Stuff feared having their details published as they said it could be used against them by birth parents, and have their placement challenged in court.
WHAT THE CURRENT LAW MEANS
As of March 2019, 5180 children were in the care of Oranga Tamariki. Of those, 577 were cared for by child and family support services – which means that a home has not yet been found for them. Another 120 were in a family home placement, 2935 were in the care of wha¯ nau, and 1351 were in non-wha¯ nau placements. A total of 178 children were in placements described as ‘‘other’’, and 19 were in residential placements – or transitional care. Who has a say in the
care of these children is complicated under the current legislation. In essence, Oranga Tamariki has the legal responsibility for the child, and caregivers provide them with day-to-day care.
A child’s birth parent will in most cases continue to share guardianship responsibilities with the foster parent, or caregivers – this means that they need to be consulted and give permission for decisions such as school changes, vaccinations, surgery and travel.
Foster parents can make only ‘‘routine’’ decisions for a child under 16. Once the child reaches 16, the foster parent has no legal guardianship or say in their care.
Children under 16 can be placed in a permanent home
under the Home For Life policy, which was introduced by the National Government in 2010. National’s Paula Bennett announced the policy when she was social development minister.
She told Stuff that decisionmaking was not intended to be shared with birth parents, and that the policy was intended to be ‘‘a form of modern-day adoption’’.
But it’s not. The submission to Martin by the Foster Parents Collective says that many people are ‘‘sucked into being caregivers’’ by Oranga Tamarki social workers who discourage private and overseas adoption.
It also says foster parents are led to believe they will have the same rights and responsibilities as adoptive parents. In many cases, birth parents think their children will be returned to them despite a permanent placement being finalised.
In longer-term or permanent care situations, caregivers can apply for guardianship. Under the Oranga Tamariki Act, the court can make three types of guardianship orders – additional, sole or special.
In additional guardianship, decision-making is shared with a birth parent, unless a foster parent is granted ‘‘sole guardianship’’. Under ‘‘special guardianship’’, the court must specify the access and other rights of the birth parents. It’s understood this type of guardianship is rarely granted, though Oranga Tamariki says it is ‘‘often used to assist Home for Life placements’’.
Martin says special guardianship orders allow the court to give exclusive guardianship rights. ‘‘This acknowledged the fact that sometimes shared guardianship does not work well and can negatively affect a child.’’
Then, there’s the Care of Children Act (COCA), for when Oranga Tamariki discharges the care of a child to a foster parent under a parenting order. However, under the act, a guardianship is shared with the birth parents, and a placement can still be challenged every two years.
But in each case, one thing remains the same – when a dispute about the care of a child arises, the foster parent needs to track down the birth parents, and if consent can’t be obtained from both, the case needs to be heard by a judge in the Family Court. Even for a haircut.
Russell says that is exactly what the Foster Parents Collective is challenging the Government to rethink.
‘‘What we’re asking for is if a child is placed in ‘special guardianship’ or COCA, that child should not be challenged for custody every two years. And we’ve got to be able to make decisions for the children in our care as if we were their birth parents,’’ she says.
‘‘The rights have to change because that’s unacceptable. There’s a reason why these people don’t have their kids – I know that sounds harsh, but even to get to the point of having to put them in care, there is so much clinical reasoning and decision-making that goes on with a team and a judge.’’
Legislation needs to be ‘‘practical’’ and ‘‘work on a dayto-day basis’’, she says.
‘‘We should try to make it as easy as possible to parent these kids – but we’re making it as hard as possible at the moment.’’
THE ULTIMATE STEP
Disagreements between birth and foster parents are common, and the office of the Children’s Commissioner has received ‘‘a number’’ of complaints over the past few years.
‘‘We know that caregivers can sometimes struggle to get simple things done, like medical appointments or going on holiday if the existing guardians disagree,’’ says Judge Andrew Becroft, the commissioner.
But he insists it’s still vital for birth parents to have a say. ‘‘I don’t think we should start from the proposition that, because birth parents are unable to give day-to-day care and love and security to their birth children, and they have to be removed, that they lose all rights.
‘‘It’s an important link for a child and, yes, that relationship can break down but under either arrangement . . . it can be resolved.’’
Becroft adds that, although the law does need to be simplified, birth parents should not be stripped of their rights.
‘‘These are issues of great and profound complexity and they arise after the state has exercised one of its most coercive powers possible – that is to remove a child from birth parents because of issues of abuse or neglect or inability to parent.
‘‘That is a profoundly significant state power that can have long-lasting implications and the state hasn’t gone – with very good reason – a further step saying, when the child can’t go back to the birth parent, then the birth parents lose all rights completely. That’s a major thing.
‘Iabsolutely take my hat off to foster parents, they are heroes, they do a wonderful job of standing in the gap when birth parents aren’t able to . . . I’m alert to their issues but I can’t go so far as to say the solution is to readily extinguish the rights of the birth parents.’’
However, Becroft agrees it would ‘‘make sense’’ to see if the law is fit for purpose in its current form.
‘‘This may especially be the case in terms of enabling disagreement between birth parents and any additional guardians to be resolved in an efficient and timely way that promotes the welfare and best interests of the child as the primary interest.
‘‘It may, for instance, be useful for birth parents and guardians to have easy access to a mediation service of some sort when there are significant disagreements, rather than having to go back to court.’’
Although a birth parent can challenge a child’s placement after two years, which can be disruptive, vexatious challenges are not considered, he says.
‘‘But at the same time, if birth parents have really turned their lives around, they should have the right to challenge permanent orders. And if they do, the best interests of the child must be the guiding principle.’’