Ministry of Justice, New Zealand

The objectives of this research were:

To provide information on Maori perspectives on guardianship, particularly in relation to custody and access.

To investigate and describe the experience of Maori applicants/respondents, as well as their wider whanau, when they have gone to the Family Court to settle custody and access issues.

13.1 Framing the Issues and Themes

The principle of 'the welfare of the child' is a cornerstone of family law and practice. A perusal of the judgements discussed in the Literature Review indicates that this principle is at times seen to be in conflict with the rights and responsibilities of whanau, and the significance of whakapapa. In the Literature Review Ani Mikaere argues that attempting to explain Maori perspectives of guardianship, custody and access can easily become an attempt to define them in terms of what they are not. The explanation then frequently centres on 'differences in perspective' and how these can be accommodated.

This assumes that there is already a central or dominant view or perspective, the inference then being that this view is value neutral or grounded in objective reality. Maori perspectives are often reduced to the level of viewpoints. These viewpoints or 'starting points'187 are frequently subsumed within a dominant view. The final power to define and decide within Family Court rests with the law and those who administer justice. The legitimacy or lack of it accorded a Maori world view has real and material consequences for tamariki-mokopuna and their whanau.

The ideas of a 'Maori world view' and Maori identity can be viewed as problematic, with a risk that static and uniform definitions will limit the possibilities for choice and recognition of diversity. The choice of the word 'perspectives' in the commissioning of the research may be seen as an attempt to manage that risk. Ihimaera's188 discussion of what it means to 'grow up Maori' provides an insight into issues of identity and diversity.

The 'fractures in time and space within our culture' that Ihimaera189 refers to mean that not all tamariki-mokopuna have ready access to safe and supportive whanau, nor the positive childhood experiences described by Pere190 and others in the Literature Review. This does not mean, however, that children should be denied access to the wider support networks of whanau, hapu and iwi. It is likely that children who have experienced the dislocation described in some of the interviews are those who most need the security of knowing who they are and where they come from.

A considerable body of work exists that articulates a Maori world view while acknowledging the complexity of such projects.191 The authors of He Hinetore ki te Ao Maori contend that:

The Literature Review was conducted in order to provide a context for understanding of the views and experiences expressed in the interviews, and to link these views and experiences to key principles. As Mikaere suggests, the starting place for understanding how Maori might view guardianship, custody and access is not in attempting to find equivalent Maori concepts. It is rather to locate the principles and practices related to the care and upbringing of children within a Maori philosophical framework. This means a process of 'framing' and 'reframing' is engaged in, in which decisions are made 'about what is in the background, what is in the foreground, and what shadings or complexities exist within the frame'.193

For the first part of the discussion of themes and issues that come through in the interviews, the principles identified in the Literature Review pertaining to the care and upbringing will be placed in the foreground. The second part of the discussion will focus on participant views and experiences that can be understood in terms of access to justice issues.

13.2 Principles Related to the Care and Upbringing of Children

The key principles identified in the Literature Review in relation to the care and upbringing of children are:

• The significance of whakapapa;

• Children belong to whanau, hapu and iwi;

• Rights and responsibilities for raising children are shared;

• Children have rights and responsibilities to their whanau.

The Significance of Whakapapa

The importance of whakapapa was a particular feature of those interviews where applications for custody were made by whanau members rather than the natural parents. Without exception, the grandparents, aunts and uncles who made these applications were committed to ensuring that the mokopuna stayed within the whanau. In several instances this resulted in financial hardship and setting aside of cherished individual life goals. The obligations inherent in a whakapapa imperative become clear when one considers that in three of these cases the whanau members who applied for custody had had limited contact with the mokopuna prior to their seeking custody. In these cases the imperative was not an emotional bond based on an existing attachment to the mokopuna, but on whakapapa.

Despite the strains imposed by colonisation and urbanisation, whakapapa continues to be a basis for decision making and the application of whakapapa principles has consequences that are real. In more than one case the decision about where the mokopuna should be placed was governed by the mataamua (oldest child status) of the aunt involved.

Applicants 2 and 3 from Area 2 both illustrated the importance of whakapapa in different ways. Applicant 2 took her responsibility for ensuring that her nieces retained contact with 'both iwi' extremely seriously, and consciously chose kohanga and schools where the girls would have contact with their father's iwi. Applicant 3 spoke of working with all of the mokopuna who came into her care to ensure that they knew their whakapapa. In her view she had a responsibility for any child who was hurting that she had a whakapapa connection with. She saw her primary responsibility for children outside of her own whanau194 as attempting to establish connections for them, so they could be cared for and protected by their own.

Children Belong to Whanau, Hapu and Iwi

The principle of children 'belonging' to whanau, hapu and iwi is linked to the principle of collective responsibility for children. It is whakapapa that defines the descent group that children belong to. Whakapapa and whanau, hapu and iwi relationships form the basis for Iwi Social Service organisations. A key challenge in terms of Family Court legislation is consistently applying or enshrining in law these principles as has been the case in the Children, Young Persons, and Their Families Act, so they are placed at the forefront of any decision-making about guardianship, custody and access. Principles 5(a) and 13(b) of the Children, Young Persons, and Their Families Act make direct reference to whanau, hapu and iwi involvement in decision-making and protection of children. This cannot occur without the establishment and acknowledgement of whakapapa links. This applies whether or not both parents are Maori, because the whakapapa provides the link to the iwi. Links to Iwi/Maori social services for whanau having difficulties could provide a means of whanau accessing a range of other culturally-appropriate services.

Mikaere notes that a recommendation of the Rangihau Report195 was that a child's whanau should be empowered to select Kai Tiaki from their hapu who could act as Children's Advocate. It should be noted that the term 'advocate' is used in its broadest sense in this context. There are a number of possible roles for a skilled Kai Tiaki as suggested below. It is clear from the interviews that where skilled Maori Counsel for the Child are working with the child and whanau, that much of the support children and whanau need is already forthcoming. Real possibilities exist however, for strengthening the resource base of iwi and hapu-based social services to provide both support to whanau and advice to the court as appropriate. Trained Kai Tiaki with knowledge of whanau and hapu relationships would be ideally positioned to work alongside and assist Counsel for the Child. These Kai Tiaki could also be part of facilitating whanau hui. Such hui could occur at a number of points. C/1 argued that hui and discussion should occur early in the process, before parties become locked in adversarial court processes. Other counsel also suggested that well-facilitated whanau hui could resolve many issues without court involvement, and that this was an appropriate role for Iwi Social Services. A1/R3 suggested that there should be 'someone with authority but not a judge' to help negotiate and work out what 'reasonable access' means. Kai Tiaki could also take on this role. Clearly several of the applicants and respondents interviewed did not have a clear understanding of what the outcome of their time in court actually meant, so appropriate Kai Tiaki support could also affect this.

Any movement towards the development of this kind of role would require further discussion of how to most effectively provide whanau196 and children with support, and how to provide the court with quality information or cultural advice.

Rights and Responsibilities for Child Raising are Shared

The principle of collective responsibility for children was evident in several of the interviews. A1/A6 expressed her grief that her sister's children would grow up thinking 'you never came to see me, you never bothered with me'. She believed that the granting of guardianship and the manner in which this occurred prevented her and other whanau members from sharing responsibility for these children. She felt that once CYFS had established that she could not actually take custody of the children that she was discounted from having any role in their lives.

A1/A5 had difficulty caring for her three badly-abused mokopuna and 'gave' the baby to her brother to care for. When censured by the judge for doing so, she indicated that she believed it was a totally appropriate action to take. A2/A3 and her daughter applied for shared custody of a baby girl. The kuia has the primary caregiver role while her daughter works, but she acknowledges that because of her age her daughter will take a more active role in the care of the child as she grows up. A2/A1 supervises the access her sister has with her son, because she wants them to retain a relationship, and she wants her sister to take on responsibility at a level that she can manage with her tamaiti.

In both of the cases involving whangai relationships, both whangai and birth parents saw themselves as having responsibility for the well-being of the children. As A1/R3 described:

The single most pressing issue of concern for those who went to court was not being able to have whanau support in the courtroom. Being alone in the courtroom was seen by most as alienating. On a profound level, it is also a visible reminder that the current legislation is based on 'individual rights and nuclear families'.198 In the case of A2/A4, this was particularly difficult because her ex-partner's spouse appeared to be allowed to attend court 'as of right'. She was not offered the option of whanau support. In several instances, applicants commented on their need to have someone of kaumatua or kuia status present in a supportive role, and how alone they felt, knowing that their whanau support was sitting outside. C/2 expressed this as a recognition 'that the client is part of a bigger environment'. She was of the view that this isolation also contributed to confusion and distress in terms of access arrangements where whanau members other than the parties had key roles in caring for the child. Those whanau members, particularly grandparents who have caregiving responsibilities, should in her view be able to apply for access.

An emphasis on sharing the rights and responsibilities for child-raising represents the availability of a range of skills and resources to the child. These skills and resources will not necessarily be resident in a nuclear family context. This has significant implications for involving a wider range of whanau members in decision-making about the care of mokopuna, and for ensuring that access arrangements reflect this shared responsibility. C/1 expressed it this way:

Clearly the issue of access for whanau members other than natural parents was a significant issue. This was evident for PS/R1 who was unable to take his children to his mother's tangihanga due to problems with access arrangements. He also spoke of the grief his mother expressed before her death, as she watched her mokopuna drive past her house on a daily basis, but was denied access to them.

There were some interviewees who did not have close links with their own whanau, hapu and iwi. It should be noted, however, that nearly all in this category were part of 'kaupapa-based whanau',199 and had strong links with kohanga reo, urban marae or Iwi/Maori Social Service organisations. These 'kaupapa-based whanau' were a source of emotional and practical support, and it was apparent that those who were estranged or living some distance from their own whanau would have welcomed the opportunity to have this support in a court setting.

Given the range of difficulties whanau may experience, and the cycles of poverty, poor parenting and intergenerational abuse that exist for some whanau, the need for skilled Maori professionals is evident. Those whanau members who took on the care of mokopuna with serious abuse histories all indicated a need for professional support and guidance in caring for the mokopuna. The emphasis on shared responsibility for the mokopuna does not absolve state agencies from their responsibilities to ensure that whanau and Iwi Social Services are adequately resourced to care for mokopuna placed with them.

Children have Rights and Responsibilities to their Whanau

Mikaere suggests that: 

The expression of these lifelong obligations to the entire whanau was particularly evident for those women who were mataamua201 in their whanau. As already indicated, the level of responsibility this imposed on many of the women meant that their individual life plans had been abandoned or significantly changed.

PS/A2 described her experience this way:

The kuia who had taken on the responsibility of tamariki from her whanau for over twenty years believed that because she had been entrusted with whakapapa knowledge from an early age she had specific responsibilities in terms of the maintenance and passing on of this knowledge.

13.3 Access to Justice Issues

The Literature Review concludes with reference to Te Whainga I Te Tika,202 and includes a comment describing the Family Court as 'intimidating, individualised, monocultural'. Mikaere argues that more recent reports suggest that little has changed in the fifteen years since Te Whainga I Te Tika. Interviews with counsel tended to support this view. It should be noted however that all counsel interviewed indicated that some judges and court staff were responsive to Maori needs. All counsel emphasised the key link between quality of representation and client satisfaction.

13.4 Favourable Experiences

It should be noted that not all applicants or respondents actually appeared in court. In some instances where there were applications with consent from the respondent, or where the application was not contested, only counsel was required to appear. Some found this concerning, as they wanted to be seen by the judge.

Favourable experiences for applicants and respondents included the following: 

• Being greeted in a friendly manner by court staff and judges;

• Having proceedings running to time;

• Counsel going over the court process with applicant/respondent immediately prior to entering the court;

• Gaining a sense from the judge's comments that he/she was familiar with the case;

• Not experiencing delays. 

Counsel were able to generalise across the experiences of a number of clients and all commented on the way that their client's experience was very dependant on the people involved on the day.

Those who expressed most satisfaction with administrative aspects of court procedures were unsurprisingly those who expressed satisfaction about the overall outcome of the proceedings. Where involvement with the court was prolonged and there was a lengthy wait for contact with specialist services such as a psychologist, whanau found this very stressful.

13.5 Counsel for the Child

Those who had positive relationships with counsel and Counsel for the Child also expressed high levels of satisfaction.

The role of Counsel for the Child was a pivotal one for most of the applicants203 interviewed. Those who had Maori Counsel for the Child were uniformly positive about having someone who was able to establish rapport with them and the children concerned. Given that Counsel for the Child frequently visit homes, it was also important to them that they were comfortable with someone of the same cultural background. One applicant had Counsel for the Child who was not Maori but who worked very effectively with her and the child concerned. In one situation where Counsel for the Child was not Maori, the applicant considered that his lack of knowledge of Maori whanau dynamics and naiveté put her mokopuna at risk. Counsel interviewed expressed concern about low levels of cultural competence and cross-cultural communication skills among Counsel for the Child generally. They believed that this contributed to poor analysis of what constituted risk for children, and an inability to understand whanau dynamics. The Iwi Social Services CEO interviewed also expressed strong dissatisfaction with the inability of many Counsels for the Child to work safely and effectively with Maori.

13.6 Cost Issues

All applicants interviewed qualified for legal aid, but those who were not parents often found the process of gaining legal aid to support their applications more difficult to work through. Most were extremely positive about the availability of legal aid, and considered that the contribution they had to make was reasonable. Several suggested that other whanau they knew did not engage with Family Court because they had a perception that it would be expensive.

Costs that did pose a barrier for some were related to transport and phone calls for those in remote rural locations. Another key financial issue was to do with the relationship between benefits and drawn-out court proceedings. This meant that applicants were often involved in lengthy and complex negotiations with WINZ and respondents with WINZ and Inland Revenue. Those who had been invited to make custody applications by CYFS felt that they did not receive adequate support over this period.

Respondents who were in paid employment expressed concern about cost. In two cases this meant that respondents did not seek legal representation. Although this was because they did not intend to contest custody, they subsequently believed they were disadvantaged in terms of access arrangements. It is a matter of concern that these respondents saw no avenue for getting advice or support that was not costly.

13.7 Other Services

In several instances, applicants and respondents were involved with both the Family Court and Child Youth & Family Services. Some experienced frustration and confusion due to poor communication between Courts, CYFS and themselves. Where there was Child Youth & Family Services involvement, it was because the child or young person had come to the attention of CYFS due to care and protection issues. As illustrated in some of the case profiles, this meant whanau members such as aunts or grandparents were encouraged by CYFS to apply for custody and/or guardianship. Working across agencies often resulted in time delays when a range of reports and specialist services became involved. At times respondents and applicants were unsure whom the person they were engaging with actually worked for and what their role was. Frequently the written communication they received made little sense to them, and they did not know whom to contact about this. This raises significant issues about the development of effective interagency protocols. They should serve both to minimise delays, and to ensure that communication is clear and effective between agencies, and with whanau.

The need for Kai Tiaki who are able to communicate effectively with Maori applicants and respondents has already been discussed.204 It is likely that if sufficiently resourced and supported this could contribute significantly to increasing the effectiveness of Maori participation in the Family Court. It could also provide counsel and the judiciary with a source of significant cultural advice. Counsel, social service providers and several of the applicant/respondent interviewees all identified whanau hui and mediation processes as being of value. Such hui could occur both at an early stage to avoid matters escalating, and after proceedings have been completed. Early hui provide the opportunity for wider whanau participation, and may assist in identifying safe options for the child. Such hui may also be useful for those respondents who are reluctant to seek legal advice, in order to allow them to participate more fully in understanding the implications of their decisions. Hui after proceedings were seen as important in negotiating 'reasonable access' within a safe environment, and in ensuring that all parties were clear about the outcomes of proceedings. C2 also believed that such hui were important to ensure that parties planned how they would communicate the outcome of the court proceedings to their tamariki, and to other whanau members. As already noted, any development of Kai Tiaki should involve further discussion of the range of roles they could carry out, and how these would be prioritised.

Respondents who were also respondents to protection orders had some difficulty understanding how the protection order and violence impacted on their custody and access. It is evident that high-quality DVA programmes should continue to be provided to help respondents understand the effects of violence on their children. Respondents also need clear advice from counsel regarding the relationship between the Domestic Violence Act 1995 and the Guardianship Amendment Act 1995.

A lack of culturally-appropriate specialist services continues to be problematic. There is still a shortage of Maori Family Court counsellors and specialist report writers. This means that in many instances Maori applicants and respondents effectively receive no service at all. Those who did have access to Maori professionals commented positively about this.

It is also important that there is consistency across Family Court legislation in acknowledging the legitimacy of the principles pertaining to childcare and upbringing that have been discussed in this report. These principles are reflected to some degree in the Children, Young Persons, and Their Families Act 1989.

Section 13(b) states:

In considering possible changes to the Guardianship Act 1968, it would therefore be useful to consider the principles pertaining to whanau, hapu and iwi incorporated in the Children, Young Persons, and Their Families Act 1989, and ensure that the principles of any new law are consistent with these. The specialist role of Iwi Social Service agencies, approved under the Children, Young Persons, and Their Families Act should also be recognised and further explored. Adequate resourcing and the development of clearer relationships between Iwi Social Services, Family Court and Child Youth & Family Services would allow whanau and children access to culturally-appropriate services.

In summary, it is suggested that the following options be explored for further recognising Maori perspectives on guardianship, custody and access, and facilitating effective Maori participation in Family Court proceedings. These options have all been described in the preceding discussion.

• Consistency across Family Court legislation to recognise Maori principles pertaining to the care and upbringing of children.

• Legislative provision for wider whanau participation in Family Court processes.

• Early use of whanau hui and mediation.

• Provision for whanau hui after proceedings have been completed.

• Exploring the options for having paid Maori advocates205 or Kai Tiaki available to whanau, children, and possibly the Court.

• Further information for the judiciary and training for Counsel for the Child.

• Increasing the availability of culturally-appropriate Family Court Counsellors and specialist report writers.

• Recognition of the special role of Iwi Social Services, and building of productive working relationships with them.

Footnotes

187 See Judges' Comments, Literature Review p37.

188 See footnote 76.

189 See footnote 76.

190 See footnote 54.

191 See discussion in the Literature Review p19.

192 He Hinatore ki te Ao Maori p10.

193 Smith, Linda 1999, p153.

194 This kuia lived in a urban setting, and is frequently called on by CYFS and local whanau for assistance.

195 See footnote 115.

196 There is also a need to look at this in relation to case management approaches being taken within Family Court. This should allow for more effective provision of information to parties.

197 The baby they had given as whangai.

198 See interview C/1.

199 See Literature Review p37 for a discussion of what Metge describes as 'kaupapa-based whanau'.

200 See Literature Review p25.

201 The oldest child.

202 See footnote 143.

203 Few respondents made any comment about Counsel for the Child.

204 See page 94.

205 Note that the word advocate is being used in its broadest sense.