The New Zealand Family Group Conference Confidentiality Protections: Lessons Learned and an Application in U.S. Child Welfare Systems

• Author: Allan Cooke,Lisa Merkel‐Holguin,Kelly L. Beck,Denise Evans
• Published date: 01 January 2020
• DOI: http://doi.org/10.1111/fcre.12458
• Date: 01 January 2020

THE NEW ZEALAND FAMILY GROUP CONFERENCE

CONFIDENTIALITY PROTECTIONS: LESSONS LEARNED AND AN

APPLICATION IN U.S. CHILD WELFARE SYSTEMS

Lisa Merkel-Holguin, Allan Cooke, Denise Evans, and Kelly L. Beck

With the adoption of statutes, policies and administrative guidance since the late 1980s, statutory child welfare agencies

around the world have been implementing practice approaches to resolving and addressing child abuse and neglect concerns

that involve extended family systems in decision making and planning. One such approach is the family group conference

(FGC), enshrined in New Zealand law. This article provides a historical context and describes numerous provisions of the

family group conference that protect participants and the proceedings. It then describes applications of FGC-like approaches

in the United States where practice models and policies—not laws—guide the implementation of such approaches.

Key Points for the Family Court Community:

To understand the privacy and confidentiality provisions of the family group conference as legislated in

New Zealand.

To support policy development for family meeting approaches that builds in sufficient participant protections.

Keywords: Child Protection; Confidentiality; Family Group Conference; Family Meetings; New Zealand; Privilege.

With the adoption of statutes, policies and administrative guidance since the late 1980s, statutory

child welfare agencies around the world have been implementing practice approaches and system

reforms to resolving and addressing child abuse and neglect concerns that involve extended family

systems in decision making and planning. Still to this day, New Zealand’s Oranga Tamariki Act

(OTA),

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also known as the Children and Young Persons Well-being Act 1989, is the most compre-

hensive example of legislation that requires, and with very specific provisions, the family group

conference (FGC) as a decision-making construct in child welfare.

Other countries have also attempted to implement the FGC but with patchwork policies and

guidance documents and without comprehensive legislation. What is often missing from these inter-

national efforts is recognizing that the OTA is predicated on the concept of citizens’rights to make

decisions about issues that concern them. The consequence is that there is emphasis on ostensibly

limiting the decision-making powers of government and correspondingly increasing the decision-

making powers of all family groups, as a check and balance to the powers of the state in family life.

This article explores two primary legislative protections—privilege and confidentiality—within the

FGC context, first describing this in New Zealand, followed by examples from the United States.

I. THE ORANGATAMARIKI ACT

In Aotearoa/New Zealand, the OTA is the public law statute dealing with children where there

are concerns for the safety of children

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arising from allegations of neglect or abuse or where the

Corresponding: lisa.merkel-holguin@ucdenver.edu

FAMILY COURT REVIEW, Vol. 58 No. 1, January 2020 109–125

© 2020 Association of Family and Conciliation Courts

children have been involved in criminal offenses. The OTA requires that the best interest and well-being

of the child is the paramount consideration in dealing with cases that come within it.

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The OTA has a

range of applicable principles related to its operation and are applied where issues relating to children

who may be embraced by the Act are determined.

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With an acknowledgment that institutional racism has disproportionality impacted M

aori, the

OTA promotes the M

aori worldview relating to children and the place of children within that society.

Accordingly, the Act looks further afield than the parents and guardians of the child as the people pri-

marily responsible for making decisions about the care of the children to include the child’s extended

family (wh

anau) and broader family (hap

u) and tribal groups (iwi).

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This M

aori worldview applies to

all children in Aotearoa/New Zealand who may be embraced by the operation of the OTA, regardless of

their ethnicity. This is now re-emphasized by the inclusion of three M

aori expressions in the Act as of

July 1, 2019 (and which are specifically defined in section 2, the interpretation section and then placed

in the principles sections). They are “mana tamaiti (tamariki),”

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“whakapapa”

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and “whanaungatanga.”

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They will go to inform decision making that occurs under the Act, including deliberations of the family

group conference.

Essential to the operation of the OTA is the FGC. This is the core of the Act and nothing sub-

stantive can be done, including any court proceedings that may be instituted, without an FGC being

convened.

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In order to understand the role of the FGC, an understanding of the historical context is

required.

II. A HISTORICAL PERSPECTIVE

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On February 6, 1840 a treaty was signed between representatives of the British Crown and

rangatira (chiefs) of the indigenous people of Aotearoa—M

aori. A partnership relationship was cre-

ated through the signing of Te Tiriti o Waitangi/Treaty of Waitangi on February 6, 1840. Debate

and controversy about the interpretation of that treaty has occurred since. The history of

New Zealand’s emerging understanding of that treaty is well demonstrated by the development of

the OTA.

For M

aori, children are precious treasures, or “taonga:”

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Taonga is an expression:

…which has comparatively recent usage by non-M

aori and is essentially metaphorical. Taonga

…are both tangible, such as mere and hei-tiki (greenstone weapons and ornaments) and intangible,

such as language and knowledge. Taonga belong to a descent group but at any given time are held

by individuals on behalf of that descent group, in trust for future generations. As taonga, children

are to be treated with respect, responsibility, love and care by all members of the group.

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As such, M

aori children were never, and still today are not, the exclusive property of their par-

ents as they are in P

akeh

a (European non-M

aori) society. Rather, they are the children not only of

their parents, but also of their wh 

anau and hap 

u.

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The child is a member of a wider kin group that

has traditionally exercised responsibility for the care of the child. M

aori children belong to their

wh 

anau,hap 

uand iwi,

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with the “physical, social and spiritual well-being of a M

aori child is inex-

tricably related to the sense of belonging to a wider wh

anau group.”

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This was, and is, the case for

wh 

angai

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children too. Wh 

angai children are cared for by relatives, both within and without the

hap 

u, of the child. Their placement could not be with strangers or into another culture as this was

an avoidable act of cultural violence.

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It is argued that sustaining M

aori children’s cultural connec-

tions within their cultural and familial groups supports their identity development and helps to insu-

late M

aori children from the damaging impacts of institutional racism.

It is through this specific paradigm of recognizing familial life that wh

anaungatanga

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is

expressed and mana enhanced.

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Integral to this is mauriora, the development of a secure cultural

identity, which among indigenous peoples is a prerequisite

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promoting health, wellness and social

capital.

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For M

aori knowledge of whakapapa, through which M

aori children learn their specific

genealogical story, is the means by which they develop an understanding of who they are, which

they can, in turn, pass onto their own children.

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