Report on determinations of the best interests of tamariki Māori in need of care and protection

The Centre’s key positions put forward in this report are that:

• Tamariki Māori have a right to be raised by their whānau (family) and within their culture. This right is guaranteed under te Tiriti o Waitangi (te Tiriti) and protected by the United Nations Declaration on the Rights of Indigenous Peoples (Indigenous Declaration) and the United Nations Convention of the Rights of the Child (CRC). Māori rangatiratanga (authority) over kāinga – authority to determine what is in the best interests of their communities, including tamariki Māori – is also guaranteed under te Tiriti and protected by the Indigenous Declaration.

• Too often, however, these rights and guarantees are not recognised or given effect in Aotearoa New Zealand. A key example, as explored in the report, is in the Family Court, which often makes decisions that see tamariki Māori in need of care and protection placed outside of their whakapapa (i.e. outside of their kin group) and disconnected from their culture. This situation is occurring for a range of reasons, including that:

  ○ the law, despite being amended multiple times to better recognise the rights of tamariki Māori to live within their whakapapa group and be connected to their culture, still fails to clearly prescribe how the Family Court should give effect to these rights;

  ○ in practice, whānau, hapū and iwi are not actively engaged by Oranga Tamariki or the Courts to ensure that all tamariki Māori in need of care and protection are always placed within their whakapapa group; and

  ○ Māori rangatiratanga to determine what is in the best interests of tamariki Māori, as guaranteed under te Tiriti and affirmed by the Indigenous Declaration, is not recognised or given effect in care and protection law, policy and processes within Aotearoa New Zealand.

• To ensure the rights of tamariki Māori to live with their whānau and within their culture, as guaranteed under te Tiriti and protected by the Indigenous Declaration and the CRC, and Māori rangatiratanga over kāinga is given effect it is essential that:

  ○ Aotearoa New Zealand’s care and protection law, policy and processes are reformed to centre the jurisdiction for the care and protection of tamariki Māori with Māori.

  ○ Until Māori rangatiratanga over the care and protection of tamariki Māori is recognised, legislative amendment and practice change is required to:

 ■ provide a distinct best interest standard for tamariki Māori to be applied by decision-makers to ensure that they are always placed within their whakapapa group; and
 ■ require the Courts to facilitate the active involvement of whānau, hapū and iwi in care and protection proceedings, at the earliest opportunity, to ensure that they are involved in decision-making about what is in the best interests of their tamariki Māori and that tamariki Māori are always placed with their whakapapa group.

The full report is available here.