Nerd Sunday: Section 7AA probably isn't what you think it is
There's a lot of unhelpful stuff being said about section 7AA. All I hope is not to add to it. My thanks to the ex-Oranga Tamariki official who helped me understand the basics.
The first line of the brochure said, ‘There’s no harder job, or greater reward’.
Perhaps my conscience was bothering me. Maybe that’s how I came to scroll the Oranga Tamariki website, trying to figure out what I could do, who I should talk to. Their response to my email came soon enough, encouraging and upbeat. The brochure was attached, along with an application form.
My first attempt at a career - aborted before I finished the degree - had been social work. I wasn’t much more than a kid then, good intentions and emotional problems in equal parts, but I always knew deep down I’d never make much of a social worker. Years later, my shit a little more together, I became a government policy person - part of a network of public servants across the major government Ministries, trying to do better for kids in the care of the state, or at risk of being put into care. My good intentions remained, but I still struggled to know how to realise them.
By now it was the 2010s, a time of major reform to Aotearoa’s care and protection system - and a time of controversy, anger and hurt, all of which continue today. A lot has been written on this history, and by smarter people than me, but here are the essential things we need to know for now.
In 2017, what had been Child, Youth and Family, a part of the Ministry of Social Development, became its own organisation: Oranga Tamariki. Oranga Tamariki was meant to be different from its predecessor. It had new responsibilities, like making sure kids’ voices are heard, creating standards for the care that kids receive, and taking a preventive approach so kids don’t end up in care in the first place.1 These new responsibilities got put into law, the Oranga Tamariki Act 1989.
What else got put into the Act? You guessed it: section 7AA. The new section put duties on the Oranga Tamariki Chief Executive to ‘recognise and provide a practical commitment to the principles of the Treaty of Waitangi’, starting from 1 July 2019. This is all very wordy, but we’ll come back to it soon in plain language.2
That’s what was happening in the world of policy, the world in which I worked - but what I was feeling wasn’t just professional. It was personal too. I knew how lucky I was: my own home, a good job, the material things a kid might need. I was wondering, could I do something more?
I knew a little about caregiving from my job, but also from friends who’d done it. And I knew it wasn’t easy. Maybe a call in the night that a child is coming urgently; so you fumble to unfold a cot or put sheets on a bed, rummage cupboards for nappies or foods that kids like, wonder how you’ll welcome a 12-year-old with no one else to pick them up from the cells. Dealing with difficult behaviour, which is how kids give voice to trauma, dislocation and grief. A broken heart, maybe, when you return to their own a kid you’ve come to love. The messy morality of a broken system; one that would hand someone like me, a Pākehā lady, the child of a young Māori mum who weeps at the emptiness she holds within her arms.
I don’t know about you, but I’ve been struggling to make sense of the whole section 7AA debate. Before we go on: this is not an area of expertise for me. It’s one part of massive topic, and I can’t offer you a full rundown. I’ve simply pulled together information that was helpful to me, and I hope will be helpful to you.
Let’s take this story forward together, never losing sight that for many, it’s a story of anguish spanning generations.
Why are people worried about section 7AA?
Here’s the short version. In the minds of some, section 7AA is a new law that fundamentally changes the way Oranga Tamariki does its job. Nowadays, when it’s caring for Māori kids, Oranga Tamariki supposedly worries first and foremost about making sure those kids are placed with Māori caregivers. The kids’ wellbeing comes second. This has allegedly led to what are called ‘reverse uplifts’.
An uplift is basically when the court gives the OK for Oranga Tamariki to take a child away from their parent and place them instead with a caregiver. An uplift can happen with notice, or in exceptional circumstances, without notice (although the Ombudsman has criticised Oranga Tamariki for doing too many without-notice uplifts for no good reason).3 Of course, uplifts are traumatic for kids and adults alike, especially when there’s no warning.
And a reverse uplift? That’s when a child is already placed with a caregiver, arranged through Oranga Tamariki, but for some reason Oranga Tamariki wants to take the child out again. It’s alleged that Māori children are being reverse-uplifted because their caregivers are ‘the wrong race’.4 The case that’s often cited is one of a little girl, Moana.
How fair are these worries about section 7AA? That’s what we’re about to explore.
What is section 7AA actually about?
You could be forgiven for reading a bunch of words on this question, and still having no idea. This is complex stuff, but here’s the simplest explanation I can manage.
We can’t talk about section 7AA without first staying this: the state, and especially the care and protection system, has failed Māori. This is indisputable. The Royal Commission of Inquiry into Abuse in Care gives only a glimpse at this vastness of suffering.5 The state acknowledged its failure as far back as the 1980s, leading to the Children, Young Persons and Their Families Act 1989. Contrary to what people might think - that Māori concepts are some newfangled addition to care and protection - the 1989 Act introduced tikanga principles, including participation of whānau, hapū and iwi in decision-making for a child, and strengthened the child’s links with kin.6
No matter how well-intentioned, the 1989 Act wasn’t enough. Nor were the reforms of the 2010s we talked about above, including the creation of Oranga Tamariki. In fact, in some respects, things got worse as time went on. When the Waitangi Tribunal published its urgent inquiry into Oranga Tamariki, it observed:
The disparities we examine are both enduring and stark … It is sufficient to note the following from the evidence we have heard. Between 2000 and 2018, the incidence of tamariki Māori aged 16 and under in State care rose from one in every 125 Māori children, to one in every 64. By 2012, tamariki Māori were five times more likely than their non-Māori counterparts to enter State care. Māori were 54.7 per cent of children in care in June 2013, climbing to 61.2 per cent of children in care in 2017 (p.xiv).7
Section 7AA puts a duty on Oranga Tamariki to recognise Te Tiriti o Waitangi and make a practical commitment to it. In slightly simplified language, it requires Oranga Tamariki to:
Make sure policies and practices have the objective of reducing disparities for tamariki and rangatahi Māori.
Make sure policies, practices and services have regard for mana tamaiti, whakapapa and whanaungatanga for Māori kids.
Develop strategic partnerships with iwi and Māori organisations.
Write a progress report each year, on how well the things above are going.8
If anything, the provisions of section 7AA are kind of … weak. That’s certainly what some Māori commenters think. Having an objective? An objective of only reducing disparities? Having regard to?9 And importantly, section 7AA doesn’t just trump the rest of the Oranga Tamariki Act.10 The overarching focus of the Act is that ‘the well-being of a child or young person must be at the centre of decision making that affects that child or young person’.11 In other words, where there’s tension, wellbeing comes before section 7AA.
I’m sorry. If you’ve made it this far, expecting to be scandalised by the exciting contents of section 7AA, you’re probably pretty disappointed.
What isn’t section 7AA about?
This bit is important. Yes, 7AA says Oranga Tamariki has to have regard for mana tamaiti, whakapapa and whanaungatanga for Māori kids. But contrary to what’s being implied, there’s not some kind of special rule that singles out Māori kids in care, so they in particular get placed with whānau. Other parts of the Oranga Tamariki Act 1989 set out principles for all kids in care, including these:
Preference should be given to placing a kid with family.
If practicable, the kid should be placed with their siblings.
A kid’s connections to family and family groups should be preserved.
Any services or support a kid gets should recognise the importance of their whakapapa (in the sense of genealogy, so it applies to kids of all ethnicities and cultures).
Kids in care should have their needs addressed, including ‘identity needs’.
Kids in care should go back to their families or usual caregivers, if that’s consistent with their best interests.12
A little girl called Moana
Maybe you’ve read about the case. A three-year-old Māori girl named Moana was taken out of the care of her mum. She was placed with the Smiths, a Pākehā couple. The Smiths wanted to keep Moana forever, but Oranga Tamariki wouldn’t allow it because the Smiths are Pākehā - trying instead to ‘reverse uplift’ Moana and place her with a Māori couple, the Taipas.13 The different parties fought it out in court, all because of section 7AA, until the judge took the part of the Smiths, slapping down an ideologically-driven Oranga Tamariki.
At least, that’s how the story has been told; sometimes by reputable news outlets, and just as often through political party media releases and right-wing blogs. The real story, well, it’s a lot more complicated. News coverage has made Moana the child standard-bearer for adult battles, which I find distressing. I will try my best not to do the same, and will urge you to keep in mind what’s at the heart of this story: a wee one entitled to dignity and love.
I’ll make three points before we continue.
The first point is that this part of our story is really complex, requiring me to wade through court judgements - and I need to caution, I’m no lawyer.14 I’ve tried to use basic terms to keep things readable, and I hope you’ll forgive any oversimplifications.
The second point is that Judge Callinicos, who heard Moana’s case, is a controversial figure who’s had serious allegations made against him.15 At the same time, I’ll also note that an appeal against his Moana decision was dismissed by the High Court. Nonetheless, it’s mostly his views you’re about to read below, and I can’t guarantee they’re without some bias.
The third point is that much of Moana’s story takes place before section 7AA even took effect. We’ll come back to this.
Moana was born in 2015, in Hawke’s Bay. She had two older sisters and an older brother, also living in Hawke’s Bay. Court documents describe Moana’s mum as ‘gentle and fragile’, struggling with poor mental health, substance abuse and trauma. That made parenting hard, even though she wanted to be with her kids. Moana and her brother were uplifted from their mum a few times, and then returned; but it became clear they wouldn’t be able to stay in their mum’s care.
On 17 September 2018, Moana was placed with the Smiths, and her older brother was placed with other caregivers in Hawke’s Bay. Something important happened at this time - or, more accurately, it didn’t happen. Remember how preference should be given to placing a kid with family, no matter their ethnicity or culture? Somehow, the efforts that could have placed Moana with her kin were never made. In court, Judge Callinicos was highly critical of the failure at this vital moment, in which Moana could have been placed with family from the outset - avoiding the tragedy to follow. His judgement describes evidence from the writer of a cultural report (we’ll come back to this) who later, when searching for Moana’s kin, found 31 of her relatives in short order simply by using public sources.
At this same time, when Moana was placed with the Smiths, something else important was happening. Moana’s mum was pregnant with another wee boy. When he was born soon after, Moana’s little brother was taken almost straight away, and eventually placed in the care of the Taipas, who lived in Wellington. The Taipas had a whakapapa connection to Moana’s mum.
To return to the failure to find Moana’s kin - how could such a thing have happened? In Judge Callinicos’ view, and I’m paraphrasing his strong language, laxity or worse characterised much of Oranga Tamariki’s care for Moana. While I see limited use in pinpointing individuals - this was clearly a system failure - the Judge lays much of blame with a single social worker, called ‘first social worker’ in court documents.
First social worker was inexperienced, just out of university, although that doesn’t seem to explain all her behaviour. Her written records spoke highly of the Smiths, but verbally, she was expressing concerns to her colleagues: concerns that the Smiths were racist and had little regard for te ao Māori; but also other concerns that the Smiths were undermining her personally and sabotaging her reputation.
These concerns were later found by the court to be either baseless or taken out of proportion. Nonetheless, because of her views, first social worker’s colleagues concluded the Smiths weren’t suitable caregivers for Moana after all. Bizarrely, none of the colleagues thought to check the written records, or the plan in place for Moana’s care with the Smiths. If they had, they would have found evidence - including from first social worker - that the Smiths were doing a good job, and Moana was doing well. Whatever the case, the wheels were now in motion.
A conclusion had been reached: the Smiths would not permanently care for Moana. But Oranga Tamariki didn’t tell the Smiths that permanent caregiving was off the table. In fact, they deliberately concealed it, continuing to signal that a plan for permanency was being progressed - the Smiths should keep working towards it - while they made arrangements to remove Moana and place her with the Taipas. The Taipas weren’t fully aware of what was going on either. They had no idea the Smiths had been all but promised a permanent caregiving role.
Throughout this period, Oranga Tamariki had commissioned a ‘cultural report’ into the Smiths’ cultural competence as caregivers to Moana. Such a report could have been a useful thing, figuring out ways to support these non-Māori caregivers to meet the cultural needs of the child in their care. But this report - because of the way it was commissioned, not through any fault of the report writer - did no such thing. As Judge Callinicos said, ‘The Ministry used the guise of a cultural assessment as an instrument to yield the answer they wanted to merit a change in placement’. In fact, on 5 September 2019, when the Smiths were told that Moana would be removed from their care to live with the Taipas, the cultural report wasn’t even finished.
On 17 October 2019, the Smiths applied for an order for the day-to-day care of Moana, having become aware she was about to be removed and placed with the Taipas. Oranga Tamariki opposed the Smiths’ application, landing everyone in court. The court put a hold on the removal of Moana. It said the Smiths’ application needed to be heard first. Then the following year, on 17 July 2020, the Taipas also applied for day-to-day care of Moana - with the support of Moana’s mum, for whom the whakapapa connection was very important.
All of this must have felt like a nightmare for the people involved. After all, as the court documents emphasise, both the Smiths and Taipas were loving and capable caregivers. But what happened next was even worse.
On 8 January 2021, two social workers took Moana to visit the Taipas in Wellington - because, as you’ll remember, that’s where Moana’s little brother lived. During the drive home to Hawke’s Bay, Moana started talking about being scared. One of the social workers began to record her, without her knowledge. What was scaring Moana? Well, it was kid stuff, like lightening and being magic. The recording stops in the middle, for three minutes in which we don’t know what the social workers discussed. When it resumes, Moana says she wants to live with her brothers. One of the social workers says, ‘How about, would you like me to try and make that happen for you? … Would you like that?’
Oranga Tamariki had concluded Mr Smith was abusing Moana. On the basis of the 8 January car conversation, Oranga Tamariki made what is called a Report of Concern, later found to be unsubstantiated. Nonetheless, Moana was uplifted, unilaterally and without notice, from her daycare. In the days that followed, social workers repeatedly visited Moana at daycare, asking her things like where she wanted to live and whether she had seen her lawyer.
I don’t know about you, but I can’t read all this and see some straightforward connection between section 7AA and the events that unfolded for Moana, the Smiths, and the other people in their lives. All I can see is mess, complexity, opaque motives and confusion; organisational strain becoming system failure. In fact, Judge Callinicos himself, despite what you might have read, describes section 7AA as a ‘possible factor behind the decision by Oranga Tamariki to change their view about where [Moana] should be placed’ (emphasis mine). Still, we can’t just sidestep these big questions: how important were Moana’s cultural needs, and should they have determined who she lived with?
Here, the court heard different views, but not so different as you might expect. One person to give evidence was a rangatira of Ngāti Kahungunu, Moana’s iwi. In his view, placing Moana with people linked by whakapapa was essential. Mrs Taipa deferred to the rangatira; but she also said that, whatever the outcome, she would work to keep Moana connected to kin and culture. A psychologist gave evidence that removing Moana from the Smiths would cause trauma, and he advised against it - but he was equally clear that connection with her siblings and her culture mattered too, and there might well be negative impacts for her longer term without them.
Judge Callinicos, as you know, decided Moana should stay with the Smiths. And while he made some remarks about ideology at Oranga Tamariki, he never for a moment downplayed the importance to Moana of her whakapapa, culture and kin. In fact, his decision to keep Moana with the Smiths was in large part because most of her whānau connections were in Hawke’s Bay. After all, the Judge had no time machine: it was one thing to say Moana should have been placed with kin from the start, and another to figure out what to do next, in the wake of that failure. He ordered not just that Moana live with the Smiths, but that her mother and the Taipas play a role in her life.
If you can find easy answers, divide this story simply into good guys and bad guys, see a simple tale of the evils of section 7AA - well, you’re doing better than I am.
Then what’s the evidence that section 7AA is a problem?
The short answer is, I’m not sure. My scan hasn’t picked up much, but I can’t say I’ve searched every corner.
We have some evidence from caregivers. Over years, Newsroom’s published a trenchant series of articles about Oranga Tamariki. In a handful of these articles, caregivers offer anonymous accounts of being shafted - and they see section 7AA as the reason. ACT’s Karen Chhour, who’s since become a Minister, introduced an unsuccessful member’s bill earlier this year, to repeal 7AA. In her introductory speech, she spoke about stories from Pākehā who’d been declined as caregivers, or had children they cared for taken away because they weren’t meeting those children’s cultural needs.16
Emphatically, these caregiver experiences should not be downplayed.
And here, we have to remember something important. Evidence of bad policies or organisational behaviour can be hard to gather. It can rely on complaints data, court cases, or people willing to speak out to researchers or politicians or media. Most people don’t have that kind of fight in them. They shouldn’t have to.
But assuming there is a problem, something I haven’t uncovered, we need to work through all the possible scenarios. Is the problem the legislation: all of section 7AA, the fact it commits to Te Tiriti? To me, that seems hard to argue. Or is it only part of section 7AA, the bit about having regard for mana tamaiti, whakapapa and whanaungatanga? Again, I’m not convinced. Is the legislation fine - it’s just being put into action badly by the Oranga Tamariki people making decisions? Or are completely different things at play: the many problems faced by Oranga Tamariki, set out in countless reviews and seen in Moana’s case?
Laws should be made or unmade off the back of evidence. At the least, we should be confident of doing more good than harm. These kids have been harmed enough already.
And let’s be honest. For all that there are people with sincere concerns about section 7AA, there are some that never gave a damn about kids in care - not for a single day of their lives. It was the words ‘Māori’ and ‘Treaty’ that flared their interest. Some of them advocate for bootcamps, a lower age of criminal responsibility, a return of the historic conditions for our brutalisation of Māori children. Evidence doesn’t concern these people, because they’ve already found the answer.
But if the answer is taking Treaty protections from kids, what the hell was the question?
A little boy whose name I never knew
I read the brochure, but I never filled out the application form. And so I never became a caregiver. It was for the same reason I never became a social worker.
It takes a special kind of person to do either job well. I wasn’t that person, for all my good intentions. This was an admission to myself that stung a little, and I dust off the memory from time to time, when I’m tempted to judge before I’ve taken a pause to understand. Caregivers mess up. So do social workers. God knows parents do too. I’m not arguing there shouldn’t be accountability. I just think that people - all of us - mess up in a context, maybe under stress, and within a system.
A few Decembers ago, I realised I was bloody fed up with the kids’ trampoline. They didn’t use it anymore. It was a hulk of a thing, taking up half the back section of my Upper Hutt home, and it had to be dragged back and forwards every time the lawn was mowed. I said to the church next door, do you know someone who’d like it? If you can bring a toolkit and some blokes and a trailer, it’s all yours. Please.
A few streets down, the pastor told me, was a lady who cared for kids for Oranga Tamariki. She was expecting a little boy, right before Christmas. If the church guys could swing it right - pick their moment to arrive at the woman’s house, work quickly enough - well, maybe the wee guy could wake up Christmas morning to something totally small-boy-awesome.
The lady and the church, they held the little boy close. I know this because months later, the pastor told me the kiddo was doing fine. School was good. He’d even made some wee mates. They’d come back to his place for playdates, and they’d go on the trampoline.
That Christmas the little boy arrived, he must have thought about his whānau, must have missed them. I bet they thought of him too. It doesn’t matter who you are, Christmas feels like that: poignancy and sweetness and pain. But I hope, for all of that, when he looked out the window in the morning, his eyes went wide and he rushed outside - to bounce and to whoop and to pull crazy stunts and laugh.
I hope he had that moment when, suspended in air, a kid only feels weightlessness and joy.
A campaign to repeal section 7AA of the Oranga Tamariki Act has hit 10,000 signatures. - ACT New Zealand
The names of all the people involved are the pseudonyms used in court documents.
Original hearing: 2021-NZFC-9089_Chief-Executive-of-Oranga-Tamariki-v-MQ.pdf (districtcourts.govt.nz)
Moana’s mother’s appeal: workspace___SpacesStore_4ae0436c_a246_4840_8ce2_6e018004f8da.pdf (justice.govt.nz)
Bloody good job Anna.
Oh my word Anna. I’ve just finished reading this piece, and still wonder how people can do this tough job. It’s like playing God, choosing a child’s future. As you say, it’s complicated. I’m glad it’s not my job, and I salute those who do this work. Than you for your research and ‘simplification’ of a complex situation.