Lawyer claims decision on 'Moana' case was biased, appeals to High Court

Thursday, 7 October 2021

The mother of a Māori girl in the care of Pākehā foster parents has appealed a judge's ruling that would see the girl stay with them.

Last month Family Court Judge Peter Callinicos ruled the 6-year-old girl “Moana”, traumatised and neglected before being taken into care, could stay with the foster parents at their house in rural Hawke’s Bay.

Oranga Tamariki and the girl’s iwi wanted her removed from the home she had lived in for the part three years because they did not think the couple could meet her cultural needs.

Judge Callinicos criticised Oranga Tamariki for putting ideology ahead of a child’s best interests.

**READ MORE:

* What happened to 'Moana' was abuse at the hands of Oranga Tamariki

* Can Pākehā caregivers provide adequate cultural support for Māori children in care?

* Oranga Tamariki decision to be appealed by birth mother

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In his 145-page decision, he dismissed Oranga Tamariki’s application to remove Moana from the foster parents, and he has appointed the foster father as guardian. He also appointed as guardian the woman who cares for Moana's younger brother in Wellington.

The decision includes stark criticism of, its chief executive and numerous of its staff, though the judge said his intention was to traverse the facts that led to the situation and not to criticise.

The mother’s lawyer, Janet Mason, on Thursday filed an appeal. She claims:

The decision was biased. “Its central proposition was that the OT social workers had all been involved in an elaborate and mischievous plan to transfer [Moana] to the [the family in Wellington], without telling the [foster parents]. Accordingly, all of the evidence of the OT social workers was considered to be tainted, and all of it was rejected outright by the judge.”

The evidence was mischaracterised, including the evidence of the psychologist, which was used in an attempt to justify the placement of the girl with non-Māori, non-kin caregivers.

The evidence that portrayed the Pākehā foster parents in a negative light was not considered as it was all rejected by the judge.

The judge had not considered the Treaty of Waitangi requirement that a Māori child be placed with his/her whānau, hapu, and/or iwi, provided there were no safety concerns; and, the requirement to place a child with his/her sibling, should this be possible.

Instead, the decision was “focused on how Oranga Tamariki social workers had maligned the [foster parents], and on the apparent faults of OT, at the expense of the focus being on the best interests of the child, a matter which ought to have been the paramount consideration”.

Mason said the judge should have recused himself when she made the request for him to do so. All other counsel involved were happy for him to hear the case.

Mason wants the decision overturned so Oranga Tamariki's custody order over Moana remains in place with conditions that she is placed in the day-to-day care of the family in Wellington , and that the birth mother and the foster parents be allowed appropriate access.

An application for legal aid had been made and was awaiting approval, Mason said in the appeal papers.