Interviews with Applicants and Respondents
The interviews with applicants and respondents took place in two areas. One of these was an area with a high Maori population that encompassed a number of small towns and a large rural area (Area 1). The other was a large urban centre (Area 2). Different area types were chosen to provide a range of whanau and to reflect the diversity of Maori experience. The areas are not described any more specifically in order to protect the identity of participants. The interviews conducted for the Pilot Study are also included here.
11.1 Area 1/Applicant 1
Profile of Case
The grandmother of two mokopuna sought and was granted custody with the consent of her daughter and the natural father. She had become concerned about the level of care the first baby was receiving, and this initiated her interest in seeking custody.
When she first had him and her DPB came in … I was having him and getting his formula, his kakahu164 .. not thinking I gave her a month to jack up her ideas or I would step in. I had the information, I had the knowledge to do that because I was working for a counselling agency and that was part of my job.
She approached the father of the baby and suggested he and his whanau meet to discuss what position they would take.
I went to the parents and the Dad and I said - this is what I am going to do - and this is what J. has agreed to. Give me feedback. And they really had nothing to come back on, because I knew them.
A primary concern for her was that both her daughter and the father of her mokopuna had drug and alcohol problems and gang involvement. She gained custody of the first child when he was approximately two years old, and applied for and was granted custody of the second child soon after his birth. The oldest child is now attending school, and the second child is three and attending kohanga.
Involvement with Court Services and Professionals
As a counsellor, the applicant was aware that she would need the services of a lawyer.
I looked around - I wanted a Maori, and then thought - no, it's not the Maori I want, it's the legality, the legal part is what I wanted and the closest to work - and she was lovely.
Both the applicant and her daughter got on well with the lawyer, although she advised her daughter to get her own lawyer. The applicant found counsel helpful in explaining the Legal Aid process and her financial options. Having given up her part-time work to look after the children she experienced considerable financial pressure during the period when she was caring for the children, but had not yet been granted custody.165
When the applicant made her initial approach to seek custody, she and her daughter attended Family Court-funded counselling. They saw the same counsellor, but in separate sessions over a period of three months. The applicant stipulated this as a deadline, because she did not want things to drag out. The counsellor was Maori, and the applicant believed this was helpful - it made it easier because we cut a lot of things out and didn't have to spill everything. The applicant was satisfied with the counselling process, and engaged in it because she wanted her daughter to have a full understanding of what was happening and why.
Court Procedures and Setting
The application for custody was with the consent of the natural parents, so matters were dealt with in court by counsel. The applicant commented that she knew everything was all right, but that she would still like to have seen the judge. She felt it was somewhat cold simply to get a letter through the mail.
Whanau Support
When asked about wider whanau support, the applicant replied:
I didn't feel there was a need to call them in. I talked to my whanau about it and they said why didn't I do it before... They supported me and everything ... I had support like my colleagues, and I had the information …
The applicant was the oldest of her siblings, fluent in te reo, and regarded as a source of advice and support by other whanau members. She also commented about the level of support that she believed she received from her kaumatua.
Physically I wasn't looking for their presence, but spiritually I knew.
Applicant's Evaluation of Her Experience
The applicant was very satisfied with the outcome of her experience, and regularly gives support to other whanau, especially grandparents seeking custody of mokopuna. She believes that her position as a counsellor provided her with information and confidence to deal with the system in a way that not all whanau can. For those whanau where situations are more difficult to resolve, she is a firm believer in whanau hui, where possible marae-based, to talk things through before going to Court. She is also an advocate of speedy resolution, and consistency in the professionals working with the whanau.
11.2 Area 1/Applicant 2
Profile of Case
The applicant is the whangai mother of two sons, now in their early teens. At the time of the application for custody they were nine years old. The applicant is Maori and her ex-partner is non-Maori. They live within her iwi boundaries, and her ex-partner approached the applicant's mother166 to seek her support for them having the babies, while both natural mothers were pregnant. One mother was her first cousin, the other was her sister.
It was when they had their last lot of babies, and they said the next one was for me. I said yes - both of them, and then they both had their babies, one in June, and one in August. A couple of months before they said to - hey A. asked for these babies …
The whangai arrangement was never legally formalised. When the applicant's relationship with her husband ended and she wished to seek custody, she therefore had to work with two separate sets of natural parents. Both sets of natural parents were legally married and residing together at the time the babies were born.
So when I applied for custody I had to apply for it against my tane167 as well as the birth parents. And that's what was tough, because I had to go to my cousin's and my sister's whanau and talk to them about what was happening.
The applicant was eventually granted custody of both boys after a Court decision.
Involvement with Court Services and Professionals
Although the applicant wanted a Maori woman lawyer, she was unable to find one in her area, and ended up with a Pakeha male lawyer who she described as 'really good'. It took her a long time to come to terms with the fact that she would have to work with him.
It took me a long time to think - oh gee - isn't there anyone else? But I knew I had to do it there and then or I was going to lose them and the moment, and probably not end up going where I needed to go.
She and her ex-partner were also referred to Family Court counselling. She does not think her ex-partner attended the counselling.
I went once I think, and even that I found interesting because they referred me to one of the court counsellors and that was a Pakeha woman - they had no one else. She had no idea168 and then I sort of said - you're wasting my time, and she agreed.
The applicant discussed this concern with the local Family Court Co-ordinator who agreed that there was a need to have Maori court counsellors. The applicant is in a professional occupational group, and considered that because of this she was concerned that other Maori might end up in the situation of struggling with a non-Maori counsellor and believing that they were the ones at fault.
I could probably stand up to some of the dumb processes, that's why I kept going.
Court Procedures and Setting
The applicant was accompanied to Court by a number of whanau members including her mother and several prominent kuia. She felt this created an atmosphere of manaaki for her.
It was not an easy time … the actual court hearing was about 5-6 months later and I was still very emotionally tender - and you hear the recorder reading and all that information coming through the lawyers. I did say to my whanau I don't know whether you can come in.169 When the judge was speaking with me, I didn't look around thinking I was really mokemoke.170 I think I could stand up to more than any of my other whanau. They would probably crawl out at the first post - and I am not surprised that they would.
Whanau Support The applicant required considerable whanau support and co-operation in order to resolve the issues regarding the status of the two sets of natural parents. Raising the matter of the boys' whangai status so long after the boys had been given into her care was difficult for her. When they realised there were issues of violence involved:
They took a very hard line with my tane and they were really happy that I was going for custody. I needed my whanau supporting the kaupapa. I don't think they would have contemplated opposing.
As already described, the applicant had whanau support in attending Court. She and her whanau are satisfied with the outcome, and the respondent continues to have access visits with the boys in the town she and the boys live in. The applicant was unwilling for other whanau members to be involved in the research process, as she believed that things should now be left alone.
11.3 Area 1/Applicant 3
The applicant applied for custody of her baby (now two years old) while her ex-partner was in prison. She had two teenage children when she became pregnant while in a casual relationship with someone much younger. There were issues of violence and the baby's father had threatened to take the child out of the country. They were not living together at the time of the birth of the baby. She was unsure about his rights, but he did not contest custody in Court, despite making a number of threats to do so.
Well, there was a lot of pressure. They really wanted to... She is the only grand-daughter and great grandchild, and the only great-great grandchild, so that's the reason. But the great grandmother is getting quite elderly now and she couldn't cope with a little baby, and I spoke about the mother …171
The applicant considered that if the paternal grandmother had been a more stable person that shared custody could have been an option. The custody application was granted with counsel only appearing in Court.
Involvement with Court Services and Professionals
The applicant used a lawyer that she had used some time before on several occasions for criminal matters. She trusted this lawyer and found her easy to talk to. She also believed that this lawyer could see the progress she had made in her own life to:
…tidy up my act. When you have children you have to think of them, their best interest and stability and security...
The applicant was referred to a Family Court counsellor, but did not want to engage unless she had to do so. It does not appear that this was an ongoing issue for the Court.
Whanau Support
The applicant has lived in the area most of her life. She was open about having some level of estrangement from her whanau due to whanau difficulties, her own previous gang involvement and imprisonment. She believed, as a mature adult who had brought a child into the world, that she was responsible for sorting things out without active whanau support.
My mum is elderly and she's had a major stroke. My mum and dad are not together and I didn't get any support from anybody. Not that I didn't want it you know. I would have liked to talk to somebody about it, but because I had gone through a lot of things in my life it was a matter of being strong and dealing with it the best way you know how.
Applicant's Evaluation of Her Experience
The positive relationship with her lawyer was key to the applicant's satisfaction with both the process and the outcome. She considered that she was kept well informed, and that counsel did not allow things to drag on. She was also satisfied that Legal Aid meant that there was no barrier to her doing what she wanted to do. She was also very positive about the meaning of 'the piece of paper'. When her ex-partner was released from prison he became threatening again, and went to kohanga reo and threatened the teachers. The applicant has taken the letter showing she has custody to the kohanga reo and it is now on the wall, so only the applicant can pick up the baby.172
You basically know what you want with your child - what is best for the child, so it is just a matter of striving for it, and that piece of paper means a lot, it does really mean a lot.
11.4 Area 1/Applicant 4
Profile of the Case
The child in this case was six years old when she and several younger siblings were removed from her mother and stepfather as a result of a notification to Child Youth & Family Services. The child had suffered serious sexual and physical abuse, was malnourished and had not been enrolled at school. An aunt in Auckland contacted the child's maternal uncle and his wife back in the mother's home of origin, and asked them to take the child. They applied for temporary custody, and eventually full custody was sought and granted. Two other siblings have been placed in the custody of other whanau members in the same small rural community.
I felt so worried. If my husband's mother had been alive she would have taken the lot of them, she's that kind of person, We had plans to go and see my son in *. Twelve o'clock at night you know she arrived on our doorstep. Like a whole new baby, life starting over again. She had no clothes, just the things she was wearing. We made the choice to take her instead of going to see our boy. That's his173 own flesh and blood, his sister's child.
The maternal uncle and aunt received the letter inviting them to take part in the research, and they agreed that the aunt would travel to the nearest urban centre to meet with the researcher. They were very concerned about issues of confidentiality, and did not want any other whanau members involved.174
Involvement with Court Services and Professionals
The applicants had considerable involvement with state agencies and professionals. In the course of the discussion the applicant was not always clear which services were initiated directly as a result of the custody application and which were as a result of the child's ongoing involvement with Child Youth & Family Services.
This involvement over a period of time included counsel, the sexual abuse investigative team, a psychologist, CYFS social workers and WINZ. Health and education professionals were also involved in the child's care. Involvement with this number of services was stressful and difficult for the applicants to manage. They lived some distance from the nearest town where these services were provided, and had to make frequent trips to town. The child had disturbed and irregular sleep patterns, was bed-wetting, and had severe swings in mood. The applicants found this extremely stressful. They were frustrated by promises of help that were not always forthcoming.
We've had a lot of battles - it's been an uphill battle the last two years. I felt my husband and I - we should have had support from CYPS and people around. They talk but no action. They put all the details down about what's happened and then after that they just go - no one comes back.
The applicants found counsel (a Pakeha woman) helpful, but were somewhat confused by the range of written communication they received from counsel and Child Youth & Family Services, particularly when it was in writing, and often appeared to be overlapping or out of sequence.
The psychologist was the professional that the applicants found most useful in terms of their own needs in working with the child. They felt he was one of the few people who acknowledged how difficult it was for them to care for a child with extremely challenging behaviour patterns, and who was able to give them clear information.
Court Procedures and Setting
The applicants appeared in court for the temporary custody hearing, and then six months later for the full custody hearing. The applicants were happy that the lawyer had explained everything to them fully, and felt that the judge was also sympathetic. They felt that court staff was helpful to them. They were particularly happy that the actual court process started on time and took only about twenty minutes. They had been through several situations where appointment times with professionals had been changed with little notice, or where there had been delays.
Whanau Support
Other whanau members are caring for siblings of the child in the same community, and they have been a source of support for each other. The applicants' adult children have also been a source of some support to their parents in terms of practical things like transport. The day-to-day care of the child, and management of the relationships with government agencies and professionals largely fell to the interviewee, as she expressed:
I have to do all the talking, it's the woman who does the work. It's mostly the woman, not the husband - mainly because they won't talk and don't know how to communicate with high up people. I was kind of like the meat in the sandwich.
Applicant's Evaluation of Her Experience
The applicant was clear that she would not go through this again. Child Youth & Family Services have asked the applicants to apply for custody of another baby from the same whanau, but they have declined to do so. She was bitter about the lack of financial and practical support, and believed that no agency was prepared to take the responsibility of ensuring that they were not under financial pressure, especially in the period before the child was in their custody. Transport costs and clothing costs were not adequately covered. She also did not believe that suitable arrangements were made to give them respite time, and that this had taken a serious toll on whanau relationships. She discussed at some length the impact that taking the child had had on her own aspirations for further study or work and a missed opportunity to travel overseas to visit her son. The applicant believed that they had done the right thing, and that it was their obligation to ensure that children stayed within the whanau.
We want her to grow up in a safe environment with a happy family, with whanau all around and the joy that most people have in life. To build it up over the years so that when she gets older and to teenage years she can look back on that and not just what happened to her when she was little.
11.5 Area 1/Applicant 5
Profile of the Case
The grandmother in this case applied for and was eventually granted custody of three of her mokopuna. At the time of the initial application, the three mokopuna were under three years old. She described the events leading up to this as follows:
How it started was my three moko were in a very dysfunctional and abusive environment, so my son took the three of them and we brought the whanau together and hui at my sister's place, but in the end we couldn't come to any resolution and my son said stuff them all, came back here with his children, and then the police turned up about a month later and uplifted them at nine o'clock at night. It was my boy mokopuna - he just screamed and screamed.
When I got there, my son was a mess. Then the fight started, and I rung CYFS to get advice. What can I do? I knew the mokopuna had gone back into that same abusive situation, gangs and prostitution. They said it hadn't been reported, why don't you go for custody?
The applicant did not believe her son could care for the mokopuna adequately due to his own drug abuse issues, and thought that as the grandmother she would have some rights. She was dismayed by the legal barriers she faced and the lack of resources available to her. The process of gaining custody took 18 months and in this period the mokopuna was seriously physically and sexually abused. Members of both the applicant's whanau and of her daughter-in-law's whanau approached her about this, but they were unwilling to approach police or CYFS. The daughter-in-law's whanau were feared in their community due to gang status and ran both drug dealing and prostitution. An aunt eventually broke the silence and reported the prolonged beating of one of the children. Subsequent investigation showed that all three children had been beaten, and that the girl had suffered serious and repeated sexual abuse.175
The grandmother was frustrated and frightened by the slowness of CYFS and court processes. She eventually was able to negotiate with her daughter-in-law with the support of a Maori social service provider, and her daughter-in-law gave her consent for custody to go to the applicant.
Involvement with Court Services and Professionals
The applicant was unhappy with the procedural and bureaucratic delays with CYFS. She was also concerned that Counsel for the Child was inappropriate and naive.
I said - how are you going to assess my mokopuna when they can't talk, they look well dressed, they look healthy. He said 'from my life experience'. I said - come off it! I got a report back saying they were fine and dandy. Six months down the track he rings me - come and get your grandchildren.176
Her own lawyer initially believed she had little chance of getting the children, and she also found this distressing. She was particularly upset by the lack of support services offered to her after the children were placed in her care and believes that she was inadequately supported and resourced.
I got the children - and to be honest with you I started hitting them because I couldn't understand their bizarre behaviour. Here's this little girl sexually manipulating the others - and I've got other mokopuna. I was brought up in an authoritative way and that's how I was treated. And not once did CYFS or the courts do anything for me.
The applicant initiated therapy and counselling for both the children and herself, and found this helpful. She is still grief stricken at the level of abuse the children suffered during the period of her seeking custody, and that she was powerless to prevent it happening.
Court Procedures and Setting
The applicant felt that the Family Court environment was an uncomfortable one for Maori, and felt stressed by her experience.
In the Family Court I wasn't allowed to have any whanau with me - and that was like - it was terrible. I had my mum and she had to sit outside. She had come to support me and she wasn't allowed in - so that has to change. It was the first time I had been in court, even though I was fighting for my mokopuna, I would have been really happy to have my Mum sitting in court. So the court process wasn't very good.
Her confidence developed in her struggle to gain and keep the children, and she described her relationship with the judge as 'really good by the end'. She was pleased that she had the same judge throughout the process, but felt that even he did not understand the extent of what she was dealing with.
I gave the baby to my brother, and the judge said - you haven't got all the children with you? And I said - no I haven't your Honour. He said - you know I will have to take these children off you, you realise you have to keep these three children with you. I said I would not give my mokopuna to my brother if I knew he wouldn't look after him - he is going to a safe environment, and why do I have to justify that to you? It is time our culture was recognised and accepted and our whanaungatanga.
I said - you're having me on your Honour, you see if you can cope with three children under three that have been badly sexually abused and neglected. I said - all right - you have them your Honour. He looked over at me and said - you are the most bolshie grandmother I have ever met.
Whanau Support
The applicant was primarily supported by her mother, who travelled to each Court appearance and meeting with CYFS with her. Her mother was adamant that the mokopuna should stay with the whanau. Her brother, who lives a block away, has also been a source of support, and continues to care for the youngest child. In order to manage the two older children, the applicant moved out the other mokopuna she had living with her to whanau members. The applicant considered that the profound nature of the abuse the children had suffered caused some whanau members to distance themselves as they found the children's behaviour frightening, and were concerned for their own children. The applicant was very positive about the support she received from Maori service providers, particularly in negotiating with her daughter-in-law. Her mother passed away a few months after the children were placed in her care.
Applicant's Evaluation of Her Experience
The applicant described the system she dealt with as 'culturally inappropriate' but believes that she is able to use what she learned through her experience to help others. She was concerned at the misinformation and communication delays that resulted in her mokopuna suffering further abuse. She believed that part of the delay was caused by a lack of recognition in law of the role of the wider whanau and grandparents in particular, and that this acted as a barrier to her efforts. She also felt that the role of Counsel for Child was crucial and that counsel needed to have experience of working and living with whanau Maori so they could focus on 'more important things than how many bedrooms and stuff like that'.
11.6 Area 1/Applicant 6
Profile of the Case
This interviewee rang the researchers in response to the panui on iwi radio. She wanted to talk about her experience of the Guardianship Act in relation to her sister's three children. She was saddened to find out that guardianship of the children had gone to another whanau member without consultation with the rest of the whanau. At a Family Group conference, the interviewee and her father agreed that the children could be cared for by another whanau member, as she was unable to take them immediately herself. Her sister had ongoing drug, alcohol and mental health problems, and the children had been placed under the care of the Director-General. She believed that her inability to make an immediate response to CYFS regarding taking the children meant that she was closed out from then on.
She was unaware, until after the application had been made for guardianship, that she and the rest of the whanau could not be present in court to help decide what would be best for the children. She felt angry that the focus of the Guardianship Act seemed to be that someone had to 'own' the children. She is currently caring for two children who are part of her wider whanau, and considers there is no reason to formalise these care arrangements.
To me it was really selfish of them to do that because they cut all of us out. They know the whakapapa, they know their links, but they don't need to go and get guardianship, and I was so bummed out. But it was the *** social workers that told them to do it. The social worker in this just went over me; she didn't bother to contact any of our family. I have my own whakaaro, and my whanau say - that is not the Maori way. Whoever is bringing up the kids - if they can do the job well, let them, but not by any act.
As a result of the guardianship going to these particular whanau members, the interviewee believes that the children are being denied their right to know her and other whanau members with close whakapapa ties.
They are my blood. And they will grow up thinking - oh you should have come to see me. You never bothered with me. If I want to have visits and stuff, they can just say no. Those kids don't even really know me. And that is the hurtful aspect of it, because it doesn't recognise the whakapapa and they should know us.
The interviewee sought some legal advice, but was advised that there was no basis for her to challenge the guardianship, or to apply for access visits. She wanted to be interviewed so she could communicate her sadness about the lack of recognition of Maori perspectives in the current law.
Footnotes
164 Kakahu - clothing.
165 Several participants commented that the cost of supporting and caring for children before they had custody was problematic and stressful, and that this rather than court costs was their main concern.
166 See discussion in Literature Review regarding whangai, and the involvement of senior whanau members in decision making.
167 Tane - partner/husband.
168 The applicant found herself trying to explain what a whangai relationship was to the counsellor.
169 Only the parties were allowed in.
170 Mokemoke - lonely.
171 The paternal grandmother is living a transient lifestyle and was described as unstable.
172 Her ex-partner had been imprisoned again at the time of interview for a range of offences including assault on the applicant.
173 Her husband's.
174 The child's natural father is from the same hapu as the mother, and resides in the same rural community, as do his parents. He is married with children, and neither his wife nor parents know that he is the father.
175 This abuse included being used in prostitution.
176 This occurred after the aunt made a CYFS notification.
