Entitlement to attend a Family Group Conference – s22(1)(b) & s251(1)(b)
A member of the family, whānau or family group of the child or young person is entitled to attend a family group conference- see s22(1)(b) (ii) and s251(1)(b)(ii). Hapu and iwi are not able to attend a family group conference as ‘entitled persons’ unless they are also whānau. Whānau is a more immediately related group of persons than hapū or iwi. The law does not define these groups but makes a distinction between them.
It may be suggested that hapū or iwi are entitled under the ‘Family Group’ provision. The definition of ‘Family Group’ is provided in section 2 of the Oranga Tamariki Act 1989 and does not include hapū or iwi.
Section 2: “Family group, in relation to a child or young person, means a family group, including an extended family, -
- in which there is at least 1 adult member-
- with whom the child or young person has a biological or legal relationship; or
- to whom the child or young person has a significant psychological attachment; or
- that is the child’s or young person’s whānau or other culturally recognised family group”
Entry into an family group conference via s22(1)(b) and s251(1)(b) is significant. It transfers a ‘vote’ and a power to affect the future of that child or young person and their family/whānau. Care must be taken to ensure that the law is carefully and correctly applied.
From time to time a member of a child or young persons’ hapū or iwi may express interest in attending a family group conference. This may sometimes be possible but there is no express entitlement.
When the Oranga Tamariki Act 1989 intends to include hapū and iwi, then specific inclusion of hapū and iwi has occurred. For example, whānau and hapū and iwi are all referenced in sections 4, 5 and 13.
The family group conference is a legislatively prescribed meeting. The law has intentionally limited the group of entitled persons who can attend and vote at the family group conference.
The words ‘whānau’, ‘hapū’ and ‘iwi’ are all used in the Oranga Tamariki Act 1989 at various times. As hapū and iwi are not included in the list of persons entitled to attend a family group conference, it is appropriate to read that this was a conscious legislative decision.
Note: Whilst not entitled as of right to attend a family group conference, there is an ability for hapū and iwi to be included:
- As information givers (if the coordinator considers it necessary to ensure the family group conference has relevant information and advice). Role clarity is important here. The information giver does not have a right to stay for the family group conference in its entirety and the family group conference can choose whether it will act on the advice given.
- As entitled persons by consent- see s22(1)(i) & s251(1)(o). The ability of hapū or iwi to attend a family group conference as an entitled person can only occur if their attendance is expressed as a ‘wish’ by the family, whānau and family group during the consultation stage prior to the holding of the family group conference. The wish to have someone from the hapū or iwi included as an entitled member utilising this provision in s22(1)(i) & s251(1)(o) can only occur if all of those consulted agree to this. If the family/whānau/family group do not wish for the iwi or hapū member to be at the family group conference as an entitled member, then their view should be respected.
If there is uncertainty about whether a person is ‘whānau’ or part of the family group, the best way forward is to ask the parents, guardians and the child or young person about whom they consider to be part of their family group/whānau. It might be that a family/whānau member says- “I consider xxxx to be part of my whānau”. If so, it’s appropriate to include that person as an entitled member of the family group conference.
If a hapū or iwi member wishes to attend an family group conference and there is uncertainty as to their entitlement or it is clear that they are not whānau (part of the more immediate family group) then sections 22(1)(i) and 251(1)(o) are the means of enabling a voting right entry into an family group conference with the agreement of whānau. Attendance as an information giver remains an alternative option where appropriate.