In May 2022, Dixon & Co Lawyers appeared in the High Court appeal before Cull J about the care arrangements for ‘Moana’, a young Māori girl placed in the care of non-kin Pākeha caregivers by Oranga Tamariki. In the Family Court decision, released in September 2021, Judge Callinicos held that Moana would remain in the care of her Pākeha caregivers, “the Smiths”.

Moana’s mother appealed the Family Court decision, and her appeal was supported by Oranga Tamariki and the “Taipas” (Moana’s whanaunga and caregivers of Moana’s younger brother). The Smiths and the lawyer appointed to represent Moana opposed the appeal.

The question before the High Court came down to whether Moana’s cultural needs could be met in her current care arrangements, or whether she should be transitioned to the care of the Taipas.

The Moana case highlights how the Court applies the 2017 amendments to the Oranga Tamariki Act 2017, including concepts of tikanga, whanaungatanga and whakapapa and consideration of the principles of the Treaty of Waitangi. The development of the ‘mana tamaiti’ principle and how that would apply in a practical sense in the Family Court and Oranga Tamariki proceedings was at the fore of this appeal. Mana tamaiti is the intrinsic and inherent dignity derived from whakapapa 1 and whakapapa provides every Māori person within a tribal structure, the ability to say later on in life that ‘I am Māori.’

Amy Chesnutt appeared with Bernadette Arapere (Kokiri Chambers) on behalf of the Taipas. The submissions including that the tikanga Māori concepts embedded within the statutory definition — whakapapa and whanaungatanga — are relational and connecting. The key message from te ao Māori knowledge and wisdom is that tamariki Māori thrive only when they are connected to their culture. Failure to respect and protect these connections causes trauma to tamariki and to Māori communities.2 said the judge should have viewed Moana as the rito [the shoot] and as part of the harakeke [flax]. The child should be viewed as part of the kin matrix – viewed in terms of the child’s matua (elders) and tipuna (ancestors) from whom they descend as well as their whānau, hapū and iwi. Failing to give due consideration to the importance of this matrix and the effects on the child and the wider whānau can have devastating outcomes on the child and the whānau, hapū and iwi. Every Māori child needs to be viewed in relation as being part of their whanau, hapū and iwi when making decisions about care arrangements.

Māori comprise approximately 15 per cent of the population yet make up 56 per cent of children in Oranga Tamariki, custody as at June 2022. With the recent 2017 amendments to the Oranga Tamariki Act, Parliament intended that more regard is given to mana tamaiti (tamariki), whakapapa of Māori children and the whanaungatanga responsibilities of their whānau, hapū, and iwi.

After two days of hearing submissions by the parties, Cull J reserved her decision, with the delivery of the same expected in the near future.

1 Practice for working effectively with Māori | Practice Centre | Oranga Tamariki
2 Protection of mana tamaiti (tamariki) the right to cultural connectedness – (2021) 10 NZFLJ 141