Treatment of disabled mother and removal of newborn child
The Chief Ombudsman formed the opinion that Child, Youth and Family, then as part of the Ministry of Social Development (the Ministry), had acted unreasonably in its treatment of the child’s mother. This included the lack of action during and after pregnancy to identify available supports, communication with hospital staff, failure to understand the mother’s strengths as a disabled person and the nature of her disability, and the early decision for a permanent ‘home for life’ placement.
The Chief Ombudsman also formed the opinion the Ministry had unreasonably failed to address the concerns of the Complainants, which had been raised as early as 2014.
Changes that had occurred since the child’s removal
Since the time of the child’s removal, practice at the Ministry has changed, particularly following the Hawke's Bay Practice Review. These changes include:
- An expectation that all section 78 custody applications are to be made ‘on notice’ unless there is a clear need for action in order to protect a child from immediate and imminent danger. If a ‘without notice’ section 78 application is to be made, that application must have additional checks completed by a Regional Legal Manager, Site Manager, and Practice Leader.
- Practice Leaders at each site review all reports of concern for unborn and new-born babies.
- A new Service Broker role has been established to improve services across the regions. More Regional Disability Advisors have also been employed. When working with disabled parents, sites are encouraged to:
- Contact their Regional Disability Advisor;
- Engage with the wider sector, including the Needs Assessment and Service Coordination Services; and
- Engage with the site lawyer if a court process is going to involve disabled parents.
Taking these changes and the circumstances of the Complainants into account, the Chief Ombudsman recommended the Ministry:
- Scope a review of its practices and policies around involvement with disabled parents, to then be agreed upon with the Chief Ombudsman. The review is to be conducted with the involvement of disabled people-led organisations, in accordance with the Disability Convention;
- Apologise to the Complainants;
- Make an ex gratia payment to the Complainants, noting that it is now impossible to be certain that the mother was unable to parent the child, and that the passage of time and subsequent Court decisions meant that there is no prospect of return of the child.
The Ministry accepted these recommendations, and following the Chief Ombudsman’s report, made contact with his staff to begin implementing the recommendations.
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.