‘Moana’ to stay with Pākehā couple
A Pākehā couple who adopted a young Māori girl can continue to care for her after the High Court dismissed an appeal made by the girl’s mother, which was supported by Oranga Tamariki.
Justice Helen Cull delivered her decision on the ‘‘Moana’’ case appeal yesterday after a hearing in the High Court at Wellington in August.
For four years, the girl, who is now 6 years old and has been called ‘‘Moana’’ in The Dominion Post’s stories about the case, has been living with the couple in a safe, healthy, loving environment in rural Hawke’s Bay. The girl had been traumatised and neglected before Oranga Tamariki placed her with the couple (the ‘‘Smiths’’) in September 2018.
But Oranga Tamariki later decided it wanted to remove Moana from the Smiths and place her with a Māori woman and her daughter (the ‘‘Taipas’’), who live in Wellington and have Moana’s younger brother in their care. Oranga Tamariki wanted Moana moved because it did not think the Smiths could provide for her cultural needs.
The Smiths and the lawyer acting for Moana opposed Oranga Tamariki’s application to move
her, and the matter was the subject of a hearing in the Family Court in Napier last year.
It resulted in Family Court judge Peter Callinicos ruling that Moana would remain in the care of her Pākehā foster parents, and slamming Oranga Tamariki for putting ideology ahead of a child’s best interests. Moana’s mother appealed the decision. Her appeal was supported by Oranga Tamariki and the Taipas.
The mother challenged the decision of the Family Court on several grounds. She questioned whether Callinicos had considered and/or misapplied the statutory cultural provisions of the Oranga
Tamariki Act 1989. She also questioned whether Callinicos had mischaracterised evidence, had overlooked adverse evidence, whether he was biased because he considered evidence of the social worker to be tainted, and whether he erred in refusing to recuse himself.
The mother’s lawyer, Janet Mason, said Callinicos’ decision should be overturned and Oranga Tamariki should facilitate Moana’s transition from her caregivers to the Taipas.
‘‘When you consider that time compared to a lifetime of being culturally disconnected, then that risk of potential problems with a properly managed transition pales into insignificance,’’ she said.
The lawyer acting for Oranga Tamariki, Rachael SchmidtMcCleave, said Callinicos had failed to identify ‘‘the entwined nature of [Moana’s] wellbeing and that of her kinship group as required by the act’’ and ‘‘there does not need to be that contrasting of a child’s individual interests against their whānau, hapū and iwi’’.
The Taipas were represented by Bernadette Arapere and Amy Chesnutt. They said Callinicos had misunderstood and therefore misapplied the concept of mana tamaiti – the intrinsic value and inherent dignity derived from the whakapapa (genealogy) of a tamaiti (child) or rangatahi (young person) and their belonging to a whānau, hapū, iwi or family group, in accordance with tikanga Māori.
The Smiths’ lawyer, Richard Laurenson, said Moana’s whānau in Hawke’s Bay included her mother, three siblings, a niece and nephew, and her grandmother. He questioned how moving her to Wellington could strengthen her links to whānau, hapū and iwi.
‘‘When she was delivered to that care she had no teeth to speak of. Her first teeth were rotten, she had a club foot,’’ Laurenson said. ‘‘She showed indications that she had suffered sexual abuse, and she flinched at the sight of men . . . Now she is described as a happy, healthy, stable, young girl living in a loving relationship where for the first time she has a father.’’
The Smiths’ lawyer, Susan Hayward, said Oranga Tamariki and its continued vilification of the Smiths was the primary cause of friction. The Smiths ‘‘have fought tooth and nail because they dearly love her and know they can provide for her’’, Hayward said.
Justice Cull dismissed the appeal on all grounds.
She emphasised that the overarching and paramount consideration of the act was a child’s wellbeing and best interests.
‘‘Preference should be given to placements of children within their family group where they are able to meet the child’s needs for a safe, stable and loving home from the earliest opportunity. Where such a placement cannot occur at the earliest opportunity, then the child’s wellbeing and best interests will need to be met outside of the kinship matrix,’’ she said.
Justice Cull upheld Callinicos’ finding that Moana had formed attachments with the Smiths and the impacts of another placement at this stage risked further psychological trauma.
She approved of the plan for a partnership approach among the parties proposed by Callinicos and emphasised that this plan could work provided all parties now cooperate.