A Pākehā couple who have spent four years caring for a young girl taken into OT care, can continue to do so, after the courts rejected an appeal from the girl’s mother and Oranga Tamariki (OT).
The girl, who is now seven years old, has lived with the couple in rural Hawke's Bay for more than half her life in what was characterised during court proceedings as a safe, healthy, and loving environment.
She was removed from her caregivers in September 2018, with Oranga Tamariki case notes saying she was traumatised and neglected.
OT later changed its mind, deciding it wanted to place the child with a wahine Māori and her daughter who live in Wellington and have the girl's younger brother in their care.
Oranga Tamariki said the Pākehā family could not provide for the girl’s cultural needs.
Judge Peter Callinicos in the Family Court in Napier last year said the child should remain in the care of her Pākehā foster parents, saying it would destabilise her development as she had bonded with the family.
Cultural disconnection appeal
However, the girl’s mother, OT and the proposed foster family challenged the Callinicos ruling before Justice Helen Cull.
“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,” the mother’s lawyer, Janet Mason told the court in the appeal.
According to Richard Laurenson, the Pākehā family’s attorney, the girl’s mother, three siblings, nieces, nephews, and grandmother all live in Hawke’s Bay.
He refused to accept relocating her to Wellington would improve her ties to her whānau, hapū, or iwi.
“When she was delivered to their care she had no teeth to speak of. Her first teeth were rotten and she had a club foot,” Laurenson claimed, referring to OT notes.
“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 where for the first time she has a father,” he said.
Mana tamaiti 'misunderstood'
Lawyers Bernadette Arapere and Amy Chesnutt, representing the Wellington whānau said Callinicos had misunderstood and misapplied mana tamaiti – the value and inherent dignity derived from the whakapapa of the child and her belonging to whānau, hapū and iwi, in accordance with tikanga.
The appeal was rejected by Justice Cull on all counts.
Cull emphasised that a child's welfare and best interests were the act's overarching and primary considerations.
“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,” she said.
“Where such a placement cannot occur at the earliest opportunity, then the child’s well-being and best interests will need to be met outside of the kinship matrix.”
Cull upheld Callinicos's conclusion that the child had grown attached to the Pākehā family and that the effects of another placement at this point would have the potential to cause her more psychological harm.
Justice Cull endorsed Callinicos' proposal for a partnership approach among the parties and emphasised that it should be the priority of all parties to cooperate in the best interests of the child, rather than battle things out in the courtroom.
“No one size fits all. The facts and circumstances surrounding [the child] determined the outcome in this case,” Cull said.