Baby Liam has been returned to his family (photo: supplied).

The baby with the broken bones: an update

The newborn baby taken from his parents by Oranga Tamariki at an Auckland hospital last year is coming home, but their daughter remains in state custody. Joris de Bres follows the family’s fight to get their children back. 

Last September, baby Liam* was taken because Oranga Tamariki (OT) believed he was in danger of harm if left alone with his parents. This assessment was due to injuries sustained by his older sister Emma*, the baby with the broken bones, a year before. Somewhere between birth and four weeks of age baby Emma suffered several broken ribs. Hospital staff believed these injuries (which were already healing at the time x-rays were taken) were non-accidental, and OT took Emma into custody. 

Emma was subsequently diagnosed with Osteogenesis Imperfecta (brittle bones). This possibility was not considered by the hospital staff or OT at the time, even though symptoms of the condition (including blue sclera and evidence on the x-rays) were present. The power imbalance between OT and the young parents meant they made no headway in having their daughter returned.

For the past four months, the parents have been seeking the return of both children. Medical evidence has been obtained from international specialists and legal submissions have been made, all at a cost they cannot afford as a low income family. The experts concluded that Emma’s injuries most likely occurred at birth as a result of her brittle bones condition.

In a submission to the Family Court last week, OT sought a six month extension of the custody orders for both children, although they conceded there is a possibility that Emma’s injuries were incurred at birth as a result of her brittle bones. While OT now sees a realistic possibility that both children will be returned, they raised issues of parental competence and child safety which they introduced after Emma was taken.

One can only speculate that if a diagnosis of brittle bones had been made at the time, the 16 month nightmare the parents have endured so far might never have occurred. Arguments being cited about parental competence are questionable. Apart from one month after Emma was born, they have never had the opportunity to show they can be good parents.

On the day the Family Court was due to hear their case for the return of Liam, lawyers conferred for over two hours while the family and supporters remained in the lobby. All in all, there were four lawyers plus an OT social worker in the negotiations, although the family were consulted by their lawyers several times.

The good news is that they came to an agreement, subsequently recorded by the Family Court, that Liam would be returned, Emma’s case would be reviewed in March, and a conference of the medical experts would take place in April to see if agreement can be reached on whether brittle bones was the cause of her original injuries. That is all going to take more time and more money for the family.

Baby Liam, and his sister who remains in the custody of Oranga Tamariki (photo: supplied).

I became involved in this case following publicity about Liam being taken from his parents at the hospital. They’d contacted parent advocate Sue O’Callaghan who took the story to the media and I got in touch. My own interest is not just as a former Human Rights Commissioner, but as a parent of two children and a grandson with brittle bones. My wife and I had our own experience of being questioned in Auckland Hospital about our daughters’ fractures some decades ago, before they were diagnosed with Osteogenesis Imperfecta (OI). Other parents of OI children reacted similarly to the story.

Our concern was that this is still happening today, when much more is known about the condition, and its confusion with child abuse. Brittle bones should have been considered at the outset. There are a number of things that have become clear to me through my engagement with the family, other OI parents, lawyers and OT.

There is a massive power imbalance between the state (including OT, hospital staff and police) and a young low income migrant couple who have just become parents for the first time. The legislation is very complex, and children can be taken by order of the Family Court without parents being able to challenge the application until after the event. The family conference process that follows the custody order can be equally intimidating.

The fear a vulnerable child may fall through the cracks after it has come to the attention of health professionals and OT means that state agencies can be risk averse. They would rather place a child in safe custody than risk it being hurt. While this is understandable, it risks an injustice being done to the parents and to the child. The unremitting focus on the child can lead to a lack of care for the parents. The ministry’s name shift from ‘Child Youth and Family’ to ‘Vulnerable Children’ reflects this. Processes to retrieve one’s children from state custody are complex and slow, and as long as the child is ‘safe’ the authorities don’t need to bring things to a speedy conclusion. Parents feel pre-judged and are often treated as guilty even though nothing has been proven. They suffer a severe penalty at law: being deprived of their own children for as long as it takes for their case to be considered. They are effectively treated as guilty until proven innocent.

Oranga Tamariki continues to be understaffed. The parents of Liam and Emma have had five different social workers to deal with since Emma was taken, three of them since Liam was removed. They’re due to be allocated a sixth. Not only does each social worker need to come up to speed with their case, but details of the earlier case history can become distorted or lost.

It’s not uncommon for cases such as this to take up to two years to resolve. To get fixtures at an overburdened Family Court for a full hearing can take months. Having so many lawyers involved (for OT, for the child, for each of the parents) adds further scheduling complications.

And hospitals need to have protocols that require medical staff to consider the possibility of brittle bones (and similar conditions) when a child presents with unexplained fractures.

The nightmare for Emma and Liam’s family is not over. Their daughter is still in state custody. They are in debt and will incur further major costs over the next few months as they try and get her back.

A Givealittle page has been set up to help them through this period.

*Liam and Emma’s names have been changed to protect their privacy.

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