State Responsibility for Children in Care

Abstract

Children and young persons who have been removed from their families and who will not be returned to their families of birth following intervention by the State are amongst the most damaged and vulnerable children in society. They often present with a myriad of physical and especially psychological and emotional problems that originate from their biological history, in the reasons that led them to be taken into care, and, regrettably, also from their experiences while being parented when in the care of the State. This thesis explores the parameters of the ‘responsibility’ that the Chief Executive of the Ministry of Social Development assumes on behalf of the State in relation to those children who have been taken into its care and who will not be returned to their parents. What is meant by both ‘state,’ and ‘responsibility’ and what constitutes ‘permanency’ in this specific context, is explored. The history of state involvement in children’s lives is outlined, together with discrete themes that run through that history, including the development of the parens patriae and wardship jurisdictions from the 15th century to the present day. The statutory initiatives of the 19th and early 20th centuries that have their direct antecedents in the reaction of the enlightened state to the rigours of industrialisation, and of colonisation are also explored. Two hypothetical case studies of children in care are presented to illuminate the common issues and themes that permeate permanency cases. The experiences of these children are discussed in several chapters to illustrate and highlight matters pertinent to the welfare and best interests, not only of the permanently placed child, but also for his or her new ‘forever’ family. Particular attention is given to Māori children who are removed from their families and permanently placed because of the status Māori have in New Zealand society and the value they attribute to families and children. In one sense, the issues Māori children who must be permanently placed are precisely the same as those for non- Māori children – of securing the child in the new placement. However, this can be a more profound dynamic for Māori children because of the need to ensure that the necessary connections are made to the child’s culture and language. A comprehensive analysis of the applicable statutory framework is undertaken. This identifies that the effect of a custody order under s 101 of the Children, Young Persons and Their Families Act 1989 is, by virtue of the operation of s 104 of that Act, the same as if a parenting order had been made under the Care of Children Act 2004 in respect of the child. The consequence is that the Chief Executive has, as a matter of law, precisely the same responsibilities to that child as does any parent of their own child. However, the context has some significant differences in that the child who is removed from their birth family is likely to have been profoundly abused. This places an enhanced responsibility, both legal and moral, on the Chief Executive. Given the fact of removal, the thesis explores the desired outcome for these children who have been taken into state care. There are a number of outcomes that the State could reasonably be expected to attain for them. These include ensuring that the child is safely cared for and that the abuse or neglect previously experienced does not recur; that where the child has suffered demonstrable harm, ensuring that that the impact of that harm is remedied for the future well-being of that child; that the child is nurtured and cared for by a new family; that this occurs within an appropriate legal framework which enhances the well-being of the child; and having regard to the child’s care and protection and care legacies, the child is as well prepared for independence as any other child in society. The legal framework quite clearly places the Chief Executive in the shoes of the person who would otherwise be the parent of the child. This gives rise to the creation of a social contract between the Chief Executive and those carers who assume the task of caring for the permanently placed child on behalf of society. They will be providing a home for that child through to the child becoming independent and entering adulthood. The thesis questions whether the State, through the office of the Chief Executive has succeeded in meeting the obligations under that social contract. In August 2013 the Minister of Social Development, the Hon. Paula Bennett, introduced the Vulnerable Children Bill into Parliament. If the Bill is enacted in the form it was introduced, then it is likely there will be significant changes to how children in permanent placements are supported. Reference is made to the Bill and its possible consequences in Chapter 14. The thesis concludes that the State has a responsibility to children in the care of the State which commences from the time a child is placed in the custody of the Chief Executive and that, in the case of children who cannot be returned to families, continues through to the time that the consequences of abuse/neglect suffered are remedied and/or the young person ages out of care. This is both a retrospective and prospective responsibility. The State has a duty to look to the child’s overall well-being of the child given the fact of intervention and removal of the child from his or her parents and their failure to safely parent their child. In respect of children who are permanently placed, the thesis proposes that a social contract exists between the caregivers of those children and the State.