Cancellation of face-to-face access due to lockdown - Oranga Tamariki (the Ministry) applied blanket rule not required by the Health Act Notices and failed to consider individual circumstances - Access reinstated so Chief Ombudsman recommended apology
Background
The complainant was the mother of a young man in the care of the Ministry. She ordinarily had overnight, unsupervised access with him each week. She lived alone, and her son lived with two adult family members. They both lived in the same city.
On 3 April 2020, a Health Act Notice was issued to put in place the requirements of the COVID Alert Level 4 lockdown. This required everyone to stay at their current place of residence, except for essential personal movement.
In preparation for the lockdown, the Ministry advised the complainant that her weekly face-to-face access with her son was cancelled. Instead, contact would be by telephone and other electronic means.
The complaint was concerned about this, and felt that it was contrary to the advice that the Government was releasing. Advice on the COVID-19 website (and provided during press conferences) advised that shared care between parents could continue, where the two families lived in the same city or town. In the weekend of 4–5 April, further guidance had been given about single households joining with other ‘bubbles’.
The complainant believed that because shared care arrangements could continue, she was still permitted to have face-to-face access with her son, or otherwise to join his ‘bubble’. By acting against government guidance, the Ministry was unfairly disadvantaging the families they work with.
Investigation
The Chief Ombudsman notified the Ministry that he was investigating the decision to cancel the complainant’s face-to-face access with her son.
The Ministry explained that it had first conveyed the decision to the complainant very early on in the Level 4 lockdown, and before national guidance was fully developed. Once developed, this guidance provided that during the Level 4 lockdown, face-to-face access arrangements could not take place unless there was a critical or very urgent need. This was a complex decision to reach, taking into account a wide range of factors:
- The Health Act Notices, and the Ministry's responsibility to take steps to prevent the transmission of COVID-19 and to follow government directives.
- The Ministry has legal responsibility for the care of children and young people who live with caregivers that often have other family members in the home.
- The Ministry staff members would generally have to supervise access, increasing the amount of contact. Public spaces where access often took place were now closed.
- Private shared care arrangements are usually between individuals who no longer reside together but continue to share the care of their children. This is not the case for children in the Ministry’s care, where they must also consider the presence of unsafe adults.
- Children in the custody of the Ministry, and their family, have a greater rate of disability and underlying health needs than the general population. This puts them at greater risk of COVID-19 transmission and associated complications.
As part of their response to COVID-19, the Ministry decided to reduce movement of children outside of their ‘bubble’, and to have face-to-face contact only where there were critical or urgent needs.
The Health Act Notices
The Chief Ombudsman then considered the Health Act Notice.
The first matter raised by the complainant was that her situation was similar to shared care, which was allowed to continue.
The Health Act Notice allowed a child to leave the home of one joint caregiver, in order to stay at the home of another joint caregiver, as long as there was a ‘shared bubble’ arrangement.
The Health Act Notice defined ‘joint care-giver’ as ‘a person who, under an agreement or a parenting order or interim parenting order made under of the Care of Children Act 2004 has the role of providing the day to day care of the child’.
The complainant did not have a parenting order under the Care of Children Act 2004, or day-to-day care of her son. She had Court-ordered access instead. Therefore, this part of the Health Act Notice did not apply to her.
However, the Health Act Notice also allowed ‘shared bubble’ arrangements between two homes, if one of the homes was a person living alone. The homes had to be in the same health district as defined by Government, or in adjacent health districts, and all of the residents had to agree to the arrangement.
A ‘shared bubble arrangement’ might have been able to apply the complainant, allowing her to share her ‘bubble’ with her son. The circumstances of the complainant were very relevant:
- Access was unsupervised, so did not require the Ministry staff involvement.
- The caregivers did not care for any other children.
- The complainant lived alone.
- Access did not take place in a public setting.
- There were no identified risk factors for the young person or the adults he lived with.
- The access was weekly and overnight, so it was a regular part of the young person’s life.
However, the Ministry did not take these factors into account and had only considered whether there were critical or urgent circumstances. In the Ministry’s opinion, critical or urgent circumstances did not exist.
The Chief Ombudsman considered that by setting such a high threshold for face-to-face access to continue (urgent or critical circumstances), the Ministry had essentially created a blanket rule that was not required by the Health Act Notice.
Blanket rules can have unfair and unjustified impacts, because they can mean that individual circumstances are not considered. The Health Act Notice did not require that all face-to-face access be cancelled; it depended on the circumstances of children and their family. Decision makers should always retain a level of meaningful discretion in order to mitigate the risk of making unjustified and/or unfair decisions, particularly in matters of this importance.
Outcome
The Chief Ombudsman formed the final opinion that the Ministry had acted unreasonably when it failed to consider the complainant’s circumstances, and instead looked only at whether there was an urgent or critical need for access to take place.
This did not mean that access should have automatically been allowed. It also did not mean that the Ministry’s considerations for the safety of children and staff members were unreasonable. It meant that the Ministry should have considered whether access could take place, in accordance with the Health Act Notice requirements, and not impose a blanket rule.
The Ministry had reinstated access during Alert Level 3, and so the Chief Ombudsman recommended that an apology be made to the complainant.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.
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