Moana’s mother fails to have custody case heard by Supreme Court

The bronze-panelled interior of the Supreme Court in Wellington. The court has declined to hear the Moana custody case, for now. Photo / Mark Mitchell

The mother of a 7-year-old Māori girl placed in the care of a Pākehā couple has failed in a bid to take her custody battle directly to the Supreme Court.

The country’s highest court has declined to get involved in the case, for now, saying the Court of Appeal would be the proper place to hear any new evidence.

The girl has been in the care of a Hawke’s Bay Pākehā couple identified in court documents only as “Mr and Mrs Smith” for four years.

She was taken from her birth mother by Oranga Tamariki (OT) when she was found with rotting teeth and a club foot when she was 3.

But OT then changed its mind over her custody, and decided the girl – named in court proceedings as Moana – should be in the care of another Māori family.

However, the Smiths refused and, along with a lawyer for Moana, took court action to keep her in their care.

Family Court Judge Peter Callinicos ruled the child should remain in the care of her Pākehā foster parents, saying it would destabilise her development to remove her as she had bonded with the family.

When the matter reached the High Court, Justice Helen Cull also found in favour of the Smiths, who in a rare public statement said that “while Moana may not be our biological child, she is a child of our heart”.

Moana’s mother then sought leave to appeal directly to the Supreme Court, attempting to leap-frog the Court of Appeal, pleading that there were “exceptional circumstances”, including Moana’s further alienation from her culture as time passes.

However, the Supreme Court justices said the Court of Appeal was still best placed to assess a new social worker’s report and any other evidence.

They dismissed Moana’s mother’s application.

“We reserve leave for the applicant to renew this application should leave to appeal be refused by the Court of Appeal,” the Supreme Court justices said.