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March 2017 Newsletter: Putting children first in new care laws
9 March 2017
Tēnā tātou katoa
We need to find a resolution to the growing debate about the role of whānau, hapū, iwi and wider family in caring for children and young people who have been removed from their usual caregivers.
Last week submissions closed on the second major piece of legislation in the Government’s reform of the care and protection and youth justice systems.
The Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill is one of the most significant pieces of legislation for children since the introduction of the original Children, Young Persons, and Their Families Act in 1989.
The Government has a clear vision for a child-centred system. There is much to celebrate in the Bill, including the new principle supporting children and young people’s rights to participate in decisions that affect them, the ability for young people to remain in care until they turn 21, and the decision, finally, to include most 17-year-olds in the youth justice system.
The existing kin care provision
However, the Bill has also attracted significant concern, especially from Māori, about the removal of existing section 13(2)(g). In the current Act this provision gives priority, where practicable, to hapū, iwi, and wider family group placements when a decision is made to remove a child or young person from their usual caregivers.
The effect of removal of this provision from the Act
While the Bill contains many positive additions that promote the wellbeing of tamariki and rangatahi Māori, in my view these are ultimately outweighed by the removal of section 13(2)(g) and the failure to replace it with an equivalent provision. The Bill affirms the key role of whānau, hapū, iwi, and family groups to provide stable, loving, secure care for a child or young person before they are removed from their usual caregivers. However it fails to replicate this after a decision has been made to remove the child.
Removal of the provision is the wrong solution
I understand that this decision has been driven by concern about safety. I share this concern. Children and young people should always be safe. However, I also know that whānau and kinship placements have historically not been well-supported or resourced, and placement decision making has often been poor. Simply removing priority for whānau, hapū, iwi and family group placements is not the solution. It is a retrograde step. It risks setting us back and causing significant division.
The real solution is an improvement in social work practice and decision making along with better support for family groups, backed by the new legislation.
In my view, given the historical and cultural context, international evidence about quality kin care, and our Treaty of Waitangi obligations, it is vital that this Bill affirms the role of whānau, hapū, iwi and family groups, where practicable, to provide safe, stable and loving homes for children and young people who are removed from their usual caregivers.
We propose an alternative… In our submission on the legislation, my team and I have proposed an alternative version of section 13 that we think meets these current concerns.
This is available at the link below to our submission, but in essence, it makes clear that when a child or young person is removed from their usual caregivers, their whānau, hapū, iwi, and family group should be supported to provide for them a safe, stable and loving home, unless that is unreasonable or impracticable.
We think this alternative is more coherent and is a more principled approach. I am sharing it with you, as interested recipients of our newsletter, so that you can see what we are suggesting. In the coming days and weeks we will be advocating strongly for the adoption of alternative drafting along these lines which ensures this important principle is preserved.
I very much want to see this legislation pass (albeit with other improvements including removing police cells as a remand option for the Youth Court) to give effect to the many positive proposed changes and to establish a world-leading care and protection and youth justice system for Aotearoa New Zealand. It is my strong hope that with creativity and collaboration, a solution to the concerns about section 13 can be found that upholds the rights and meets the needs of all children and young people and their whānau, hapū, iwi and family groups.
Nga mihi mahana,
Judge Andrew Becroft
9 March 2017