Our Submission to the Green Paper

Children in non-whānau care need separate consideration under the Care of Children Act.

Rationale

As of 30 June 2011 there were 3885 children in foster care in New Zealand. 1610 of them are with whānau or kin. That leaves 2275 in the care of foster families. Few of these foster families are willing to go through the current permanency process, currently labelled ‘Home for Life,’ with these children because they only become ‘additional guardians’ and do not want to be in a co-parenting situation with parents who are proven to be incompetent.

Currently, the law in New Zealand discourages adoptions on the grounds that it is not in the best interests of the child to sever the connection to their biological whānau. However, in a scenario where a child has been uplifted, with cause, by Child, Youth and Family (CYF) and gone through the rightly long legal process (Section 101 Children, Young Persons and their Families Act 1989) of having custody removed from a parent or parents who are unwilling or unable to care for them, and there is no extended family able to care for them, then those children need and deserve to belong to a family.

A student of mine last year wrote about her experiences in the foster system. After being removed from the home of her mother’s best friend who had looked after her for her first two years, she was placed with an auntie. It was an abusive home where she was neglected and physically harmed. She was placed in an emergency placement, then in a group home. Finally, as the group home was closing, she found a family that wanted her for keeps. Her words at the end about finally finding a permanent family are very poignant and relevant to this submission. “From being with my family, to a foster child, to being welcomed to a family, it feels good that someone wanted me and I’m glad this happened. They might not be my real family, but in the end, they are to me. I belong to them and they belong to me. That’s what matters.”[1]

This is only one story among thousands where the voices of the children are not being heard and their best interests are made subservient to the rights of their biological parents. Also, the rights of the people raising these children are not considered at any level of the current legislation.

Adoption has a place in these situations because these children deserve to belong completely to the family who nurtures, cares for and loves them. Section 8 of the Adoption Act 1955 already provides a pathway to dispensing with parental consent to an adoption in the circumstances currently used under section 101 (and other referenced sections) of the Children, Young persons and their Families Act 1989 to sever parental custody. It is seldom, if ever, used. This needs to change to allow for adoptions from the foster care system, creating families, not homes, for life.

Issues

Where do the rights of parents end when their choices harm their children?

Parents who are unwilling or unable to care for their children have made their choices and in losing custody to CYF should also have their guardianship severed. Section 8 of the Adoption Act 1955 already provides for this to happen, but it is not used in current practice. Legal advice received has indicated that the burden of proof rests on the adopting family, and the cost involved in this process can be in excess of $40,000.00 and is unlikely to be successful. This is prohibitive for most potentially adoptive families in New Zealand. If Section 8 Adoption Act were applied in conjunction with Section 101 COCA, it would provide actual consequences for failure to parent. It would also allow the children to belong to a family and the parents raising the children to have the full rights and responsibilities of parents.

My husband and I are Home for Life parents. Our little girl (referred to as E herein) has been with us from November of 2008, shortly after her second birthday. She was uplifted from her mother’s (referred to as M) care fourteen months prior to E being place in our care. M, E’s biological mother, is for all intents and purposes, homeless. She flatly refused all assistance offered to her when her four children were initially removed from her care and has continued to refuse support available to become a functioning parent. E has three older half siblings who are in their biological father’s care (they have the same father to each other, E has a different biological father) or with his family, and they are now thriving. They belong to their family. They are with family. They get to be connected to their heritage and have connections with their cousins and with each other. Their father has worked and taken the classes and done what is necessary for him to have his children. M has refused. She is (last we were aware) in the Women’s Refuge for the fifth time in the past 39 months. She has not yet managed to stay with them long enough to be sober for more than 30 days. She is incapable of raising her children, and it has already been proven in the courts. Yet, when we wanted to take E to Disneyland in 2010, she had the final say. She has made her choices, and should not have a say in decisions in E’s life. She is not competent to make those decisions, which has already been proven in court, and yet she retains guardianship. E’s biological father was convicted of two sexual assaults of young girls, his nieces. At this point, he has no access or contact. Yet, were he to petition the court for guardianship, it would be granted to him despite his own affidavits stating that he has “only met (E) on one occasion as an infant at (his) mother’s home.” These two individuals have made their choices, and should not be allowed to continue to influence and have further control of the life of a child they are unable to parent.

Benefits of open adoptions

Open adoption (contact arrangements/agreements) need to be legalized so that links to biological whānau can be maintained post adoption. Biological parents should have standing similar to aunties or uncles where they are known to the child and have regular contact, but should not be co-parents as under the current ‘Home for Life’ policy, if that is desired by the biological parents and it is in the best interests of the child.

With my daughter, her biological mother is allowed a maximum of four hours supervised contact per year. In three years and three months, she has had a total of eight hours of contact. We have not heard from her since early December where we arranged a visit that she did not turn up to. We now supervise these infrequent visits, and the reason E knows her ‘tummy mummy’ is that we have photos of her and tell her who she is. We feel strongly that these visits are important, and wouldn’t take them away from E or M. Even more importantly, we visit with her sisters frequently; however, since their move to Auckland in June 2011 to live with an uncle, we’ve only seen them twice. But again, they are important relationships that need to be maintained.

In our custody and guardianship hearings, E’s biological father was denied access by the judge due to his potentially harmful history. He was asked to provide evidence as to why he would be a positive influence on E, and in the last fourteen months has not done so. I have initiated an email contact with him so that he can have photos and updates on E’s progress.

In summary, all adoptive parents I’ve spoken to feel that open adoptions are beneficial for the children and would like more contact. I would not decrease or alter the current access arrangements even if an adoption were finalized in our case, as contact is better in the long term for our little girl. For the security of biological parents and to ensure that adoptive families are sincere in the arrangements they agree to for contact, the arrangements need to be enforceable after an adoption has taken place, as they are currently a ‘gentleman’s agreement’ type of arrangement, which is not secure for any of the parties involved.

Adoption through foster care will save taxpayer money

Entirely too many people enter foster parenting to get money. Even after gaining ‘additional guardianship,’ foster parents receive the Unsupported Child Benefit.

If half of the children in non-kin care were adopted, it would save the taxpayers approximately $8,872,500.00 per year in board only. This figure is based on a $300 per fortnight average payment to foster parents for board. It does not include the quarterly clothing allowance of $280-$300 per child and the birthday and Christmas funds of $60-$100 per child based on the child’s age for each holiday.

Keep the money and you will find people who want to look after kids, people who want to parent long term. There is and always will be a place for emergency and even some long term foster placements where the funding is appropriate and necessary. But there are way too many children in New Zealand in permanent foster care, whether you label it ‘Home for Life’ or any other nice catchphrase, they are still foster kids. They deserve a family, and real families don’t want the money. Adoption will save the government millions.

Adoption is better for children than foster care

One reason adoption is discouraged is the potential for subsequent divorce and the question of if it is in the best interest of the child to be adopted into a family which may break up in the future. However, once an adoption is finalized, the child becomes ‘as if born to’ the adoptive parents, both of whom go through extensive checks to ensure they are fit to parent. If a divorce occurs following an adoption, custody would be arranged just like it is with any other child whose parents divorce, and the child would still belong to a family which is in their best interests; emotionally, psychologically and physically.

Adoption is better than being labelled a ‘foster kid’. Even pretty labels like ‘Home for Life’ don’t hide the fact from kids that they are in foster homes. Children want to belong to families; imperfect, real, safe, loving families—one that they can call their own, where they belong and are loved.

Under current legislation, biological parents’ rights trump everyone else

Foster parents overwhelmingly do not want to be ‘Home for Life’ parents or ‘additional guardians.’ The ones who foster well are great at supporting families in crisis, welcoming children in extreme circumstances, and are generally the ambulance at the bottom of the cliff for the most vulnerable in our society. They parent. They are not in it for anything but the kids. They deserve to be treated with dignity and respect, not suspicion and degradation.

Those who foster for an additional income do not take up ‘Home for Life’ often as the Unsupported Child benefit means a decrease in income and the loss of the support network provided by CYF in their social worker, and the social worker for the child or children.

For foster parents wanting to parent a child who has no biological family to go to, ‘Home for Life’ means co-parenting with unfit parents. It is not an attractive option for people trying to build a family. Home for Life is essentially permanent foster parenting without the support of social workers.

For us, it is frustrating to be required to consult with a homeless alcoholic and a convicted child sex offender in any and all big decisions. We have to track down, or attempt to, a biological mum who has not maintained an address for longer than four months in the past four years and a biological father who has been convicted of raping two little girls, before we take our girl on an overseas holiday, enrol her in school, move to a new city, or make any decisions in regards to her religion. If my husband or myself were offered a job in another city in New Zealand or internationally, we would have to consult with and potentially pay court fees in any dispute with two people who have already been proven unfit to parent.

Why should unfit parents, abusive parents, have so much power and control over another family if they are not able to parent their children themselves? Parents who have been proven unfit to have custody have all the rights and none of the responsibility in the Home for Life system. It seems to me, as a ‘Home for Life’ parent, that the interests of the biological parents outweigh both the best interests of the child and my rights to live how and where I choose. To attract good parents to foster care, create a pathway for adoption from foster care.

Conclusion and Recommendations

The foster care system in New Zealand is a dead end for thousands of children. Once they are in, they never get out. No matter the label, once in foster care, always in foster care under the current system.

Both the Children, Young Persons and Their Families Act 1989 and the Care of Children Act 2004 should incorporate Section 8 of the Adoption Act 1955 (dispensing with parental consent) in situations where biological parents are not going to be more involved with their children than a few hours a year. This will allow children to escape the stigma of foster care and grow up with a sense of belonging. Maintaining links to biological families through legalized contact agreements will minimize any displacement that may be felt by children being adopted from foster care. We need to help children in foster care find families, not just homes, for life. This will also help recruit more and better foster parents, as well as weed out the foster parents who are not in the system for the benefit of children and families in crisis.

References

Children, Young Persons and their Families Act 1989

101 Custody orders

· (1) Where the court makes a declaration under section 67 in relation to a child or young person, it may make an order placing that child or young person in the custody of any of the following persons for such period as may be specified in the order:

o (a) the chief executive:

o (b) an iwi social service:

o (c) a cultural social service:

o (d) the director of a child and family support service:

o (e) any other person.

(2) Any such order may be made on such terms and conditions as the court thinks fit.

(3) The court shall not make an order under subsection (1) placing any child or young person in the custody of any person (other than the chief executive) unless that person consents to the making of the order.

Care of Children Act 2004

31 Application to court

· (1) An eligible person may make an application to a court with jurisdiction under this section for—

o (a) an order placing under the guardianship of the court a child who is not married, in a civil union, or in a de facto relationship:

o (b) an order appointing a named person to be the agent of the court either generally or for any particular purpose.

(2) In this section, eligible person, in relation to a child, means any of the following persons:

o (a) a parent or guardian of the child:

o (b) a grandparent or an aunt or an uncle of the child:

o (c) a sibling (including a half-sibling) of the child:

o (d) a spouse or partner of a parent of the child:

o (e) the child himself or herself (who may apply without any litigation guardian):

o (f) the chief executive:

o (g) any other person granted leave to apply by the court.

Adoption Act 1955

8 Cases where consent may be dispensed with

· (1) The Court may dispense with the consent of any parent or guardian to the adoption of a child in any of the following circumstances:

o (a) if the Court is satisfied that the parent or guardian has abandoned, neglected, persistently failed to maintain, or persistently ill-treated the child, or failed to exercise the normal duty and care of parenthood in respect of the child; and that reasonable notice of the application for an adoption order has been given to the parent or guardian where the parent or guardian can be found:

o (b) if the Court is satisfied that the parent or guardian is unfit, by reason of any physical or mental incapacity, to have the care and control of the child; that the unfitness is likely to continue indefinitely; and that reasonable notice of the application for an adoption order has been given to the parent or guardian:

o (c) if a licence has been granted in respect of the child under section 40 of the Adoption Act 1950 of the Parliament of the United Kingdom, or under the corresponding provisions of any former or subsequent Act of that Parliament, or under the corresponding provisions of any Act of the Parliament of any Commonwealth country.

(2) The Court may dispense with the consent of any parent or guardian as aforesaid notwithstanding that the parent or guardian may have made suitable initial arrangements for the child by placing the child under the care of the authorities of a children's home, the chief executive, or some other person.

(3) On application by any person having the care of a child, the Court may dispense with the consent of a parent or guardian of a child under this section before any application is made for an adoption order in respect of the child; and any order so made shall lapse after the expiration of 6 months from the date on which it is made for all purposes except an application made to the Court within that period for an adoption order in respect of the child.

(4) The Court may dispense with the consent of the spouse of an applicant for an adoption order if it is satisfied that the spouses are living apart and that their separation is likely to be permanent.

(5) In any case where a mentally disordered person is a parent or guardian of a child in respect of whom an application for an adoption order has been made, service of notice of the application on the manager or administrator of the estate of the parent or guardian, or on the person with whom the parent or guardian resides or under whose care he is, shall (unless the Court otherwise orders) be sufficient service thereof for the purposes of this section.

(5A) In any case where a District Court has refused to make an order dispensing with the consent of any parent or guardian or spouse, the person or persons who sought the dispensation may, within one month after the date of the refusal, appeal to the High Court against the refusal; and the High Court may dispense with the consent if it thinks fit.

(6) Any person whose consent is dispensed with under this section may, on notice to every applicant for an adoption order in respect of the child and within one month after the making of the order dispensing with consent, make application for the revocation of that order and of any consequential interim order to the High Court; and the Court to which the application is so made may in its discretion revoke any such order.

(7) In any case where the Court has made an adoption order within one month after making the order dispensing with consent, any person whose consent is dispensed with under this section may, on notice to every adoptive parent and within one month after the making of the order dispensing with consent, make application for the revocation of that order and the discharge of the adoption order to the High Court; and the Court to which the application is so made may in its discretion discharge any such order. All the provisions of section 20 of this Act, so far as they are applicable and with the necessary modifications, shall apply in connection with any such discharge of an adoption order.

(8) In any case where the High Court revokes any interim order or discharges any adoption order in accordance with this section, that Court may include in its order an order for the refund by some person specified in the order of money spent by any adopter or proposed adopter for the child's benefit. Any such order for the refund of money shall be enforceable as a judgment of the Court which made the order in favour of the person to whom the money has to be repaid.

Footnote one: English student, quote from submitted work on family heritage. Used with permission.

Statistical information provided by media team of the Ministry of Social Development, 27^th February 2012.

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[1] Students work used with permission of the student and her ‘caregiver’ parents.