POLITICS WEEK: Protector or Persecutor? An Inquiry into State Care Child Abuse

August 22, 2017 ejp_comms

By Janna Tay

Between the 1950s and 1980s, the New Zealand government placed more than 100,000 children in state care.^[1] Supposedly rescued from broken family situations as a protective measure, these children then experienced physical and psychological abuse in their new homes due to failures in government oversight.^[2] They suffer the repercussions to this day, and often fall into groups that face state and societal condemnation: criminal offenders, the poor. The government has provided avenues for redress. Yet the refusal to make a universal apology looks like a denial, suggesting a fear of acknowledging state complicity.^[3] So, are existing avenues independent enough to provide the appropriate redress? Or do we need an independent inquiry?

A Brief History

Children in state care found themselves in a network of foster homes, institutions, youth detention centres, intellectual disability homes, health camps, and psychiatric hospitals.^[4] In a time of intense social upheaval, children were most vulnerable members—at the same time, the government saw them as potential threats against authority. Torn between these conflicting rationales, Child Welfare sought to address both child abuse and perceived youth crime.^[5] They took on more children with lesser justification. Māori children were more likely to be placed in institutional care, due in part to misunderstood cultures and to outright racism.^[6] Facing increased pressure on the system, Child Welfare often acted for administrative and budgetary considerations, rather than a child’s best interests. Children progressed through a patchwork of homes, experiencing abuse and neglect along the way.^[7]Children in state care experienced personal denigration, physical violence, and sexual abuse at the hands of staff workers, foster parents, and other children. Criminologist Dr Elizabeth Stanley acknowledges that there were a variety of workers in institutions, but argues that there was a structure of domination and impunity that encouraged victimisation.^[8] Good staff felt pressure to conform. As the government delegated its responsibilities and failed to follow up on care placements, much of this went unnoticed.^[9] Many children in such environments grew into adults who internalised the denigration and abuse.^[10] Believing little of themselves but trusting no one else, they either withdrew into destructive behaviours or turned to each other for a sense of belonging. Many gangs formed in state institutions, and there were repercussions of distrust, fear, violence, depression, crime, and loss of potential. All continue to affect victims today.^[11]

The State Response

Victims who want justice today are faced with the difficult position of seeking redress from their perpetrator: the state. The government offers several avenues, including mediation with the Historic Claims Unit in the Ministry of Social Development (MSD) and legal claims against the MSD and individual offenders. In 2009, however, the United Nations Committee Against Torture raised concerns over New Zealand’s failure to investigate “allegations of cruel, inhuman or degrading treatment” in state care, and thus failing to deliver justice.^[12]The Human Rights Commission launched a review in 2011, but their report was never published. It recommended an independent inquiry—Ros Noonan, Chief Human Rights Commissioner at the time, was concerned that the MSD lacked the impartiality to handle complaints.^[13] In response, Attorney-General Chris Finlayson wrote that existing processes were adequate avenues of redress, and establishing a new independent body would “[add] nothing of value”.^[14]However, calls for an inquiry have recently begun to mount. The Human Rights Commission, in an open letter, has called for an independent inquiry to determine the full extent of the abuse, openly acknowledge its impact, and prevent it from happening again. Nearly 11,000 people have signed the letter.^[15] Labour, the Greens, United Future, the Māori Party, and ACT have expressed support for an independent investigation. Prime Minister Bill English and Social Development Minister Anne Tolley remain firm that the government has taken the best approach with the Confidential Listening and Assistance Service, as well as a new fast-tracked process to grant apologies and financial settlements.^[16]

Avenues for Redress: Effective Routes to Justice?

Civil claimsPursuing a civil claim against the MSD requires putting together a personal statement and acquiring legal aid.^[17] Neither is easy, and claimants often encounter defeat in the form of the Limitation Act 1950. Under this, actions in respect of bodily injury must be brought within two years, though courts have the discretion to extend this to six years.^[18] In White v Attorney-General, two brothers brought claims of physical, sexual, and psychological abuse.^[19] While the court acknowledged that the abuse had occurred, they held that the claim came too late. The brothers relied on two exceptions to the Limitation Act: disability and late discoverability. Both failed.^[20] Though disability and late discoverability allow the limitation period to start at a later date, victims must still bring claims within up to six years of the beginning of that period. Stanley argues that these strict limitations fail to recognise the different impact that state victimisation has, as opposed to other kinds of victimisation. Individuals will only come forward when they feel secure in doing so—emotionally, financially, and in feeling they will be believed.^[21] Criminal casesVictims may also turn to the police to pursue criminal prosecutions. There have been some successes—in Chambers v R, a former Epuni Boys’ Home social worker was convicted of indecent assault against six boys between 1979 and 1983.^[22] However, the criminal process can be harrowing for victims, who find it “frightening” to face the opposition attempting to discredit their stories and frame them as liars.^[23] Historic Claims Unit This was established within the MSD in 2006 to process claims of abuse and neglect made before 1 January 1993, and make settlement offers if appropriate.^[24] The process involves meeting with claimants and examining each claim.^[25] It is so lengthy that the government implemented a Two Path Approach to offer a fast-tracked option for the 921 backlogged claims.^[26] Under the faster option, the claims slot into one of six pre-defined categories based on increasing severity of abuse.^[27] If claims were not dealt with quickly enough, the government identified a potential risk of a “renewed call for a public enquiry into historic claims”, which it saw as threatening the expeditiousness of the process.^[28]The Historic Claims Unit has faced criticism for its lack of independence. Judge Henwood noted that many do not trust it because they view the MSD as their perpetrator.^[29] Claimants have received denials of state-led harm, as well as refusals to pursue full investigations. Stanley tells of Keith, whose case the MSD turned down when they could find no evidence to substantiate his abuse at the hands of an Epuni worker. It then emerged that the MSD never approached the worker. Instead, they relied on employment records which omitted the worker’s convictions for sexually abusing other boys.^[30] The accelerated settlement process, on top of this, can seem even more callous, with Jacinda Ardern describing it as an ultimatum.^[31] Confidential Listening and Assistance Service (CLAS)Headed by Judge Carolyn Henwood to provide a safe space for victims to tell their stories, this ran from 2008 to 2015 and heard from more than 1,100 people across New Zealand.^[32] CLAS also offered counselling sessions and advocacy to assist with securing employment, housing, and food.^[33] However, CLAS was limited by the fact that its findings remained confidential and its lack of authority in procuring apologies, compensation, or legal findings.^[34]In the final report, Judge Henwood expressed the need for an independent body that can resolve historic and present complaints and hold the MSD accountable.^[35] The government, in response, refused to acknowledge the stories abuse, claiming that only 3.5% may have experienced abuse or neglect.^[36] Accordingly, they decided against issuing a universal apology.^[37]

The Case for an Inquiry

Where there is a matter of public importance, the Governor-General can establish a public inquiry to look into it independently and impartially.^[38] It is often when the public considers that the government respond impartially to an issue that the public demand an inquiry.^[39] Though inquiries cannot determine civil, criminal, or disciplinary liability, they are useful for a number of other reasons.^[40] Inquiries are able to establish what really happened, identify how we should change practice, provide an outlet for catharsis, and hold the government to count.^[41] Unlike courts, which take an adversarial approach and can only consider the evidence before them, inquiries are inquisitorial, hoping to discover what went wrong and how best to fix it.^[42] All of this helps to rebuild public confidence in the system where the government has failed.The two major downsides to inquiries are the delay and expense. The Law Commission reports that over the last thirty years, commissions take nearly five months longer than the initial predicted length of time.^[43] Correspondingly, expense increases. However, this must be balanced against the costs of choosing not to investigate the matter, including potential legal actions that might be avoided by appointing a commission and following their recommendations.^[44] To illustrate: the government recently spent $1 million in fighting claims of abuse arising in regard to Whakapari, a youth justice facility on Great Barrier Island. It lost.^[45]And so it may well be the case here that the benefits outweigh the costs. The purposes of an inquiry, as the Law Commission outline, accord with Judge Henwood’s call to hold the government accountable. Stanley also recommends establishing a commission as a way to deal with the official strategies that the government has used to “deny the nature, extent, and impact of institutional victimisation”.^[46] Victims would be given recognition. This would, in turn, expose the systemic nature of state care abuse—both in the way abuse is institutionalised and in the flow-on effects which feed into structural discrimination. Criminal behaviour, for example, is often blamed on the individual, but such an approach ignores just how the individual came to be.^[47]Anne Tolley has claimed that an independent inquiry would retraumatise victims.^[48] And yet, CLAS reported that many victims came to have an official body take their stories seriously—official recognition has a profound therapeutic impact on victims.^[49] An inquiry, in allowing catharsis, could perform the CLAS’s function with the advantage of openness. The Law Commission notes that an inquiry should never be established where alternative mechanisms exist.^[50] As CLAS has come to an end, and as the Historic Claims Unit arguably lacks the independence an inquiry would provide, this seems the opportune time to pick up where they have left off.

Current Policy

There may be an argument against an inquiry if the government shows that it has been able to learn from its mistakes. Children’s Commissioner Dr Russell Wills thinks this may not be the case. In his 2015 investigation of Child, Youth and Family (CYF), Dr Wills found that children in care are “some of the most vulnerable in New Zealand”.^[51] Though the report could not conclusively say whether children in state care were better or worse off, they found patterns of lower academic levels, higher health needs, and much higher rates of potential offending.^[52] It may be that the children taken into care are already at a greater disadvantage. However, if state intervention is meant to improve the lives of these children, it does not seem to be doing much better. In fact, as Judge Henwood noted, New Zealand still has no official ‘duty of care’ towards children written into its law.^[53]The government has since replaced CYF with the Ministry of Vulnerable Children, which the MSD claims is child-centred with “high aspirations” for Māori children.^[54] Intended to include children’s voices, it aims to work with families in a preventive capacity^[55] rather than the risk management approach which CYF largely took.^[56] This correlates with response from CLAS that a better solution for children who experienced institutional abuse would have been to support families to stay together.^[57]Cooper Legal, which has acted for hundreds of state care abuse claimants, released a report on the new legislation. It noted that s 11(2) of the Vulnerable Children Act 2014 states that the vulnerable children’s plan—that is, the government’s best plan for vulnerable children—does not create “any legal right enforceable in a court of law”. This leaves the provisions largely unprotected and with little weight, themselves vulnerable to the political opinion of the day.^[58]

The Future

It remains to be seen whether the Ministry for Vulnerable Children will be an improvement. Though it aims to advance the voices of children, it may not hold their interests as highly as might be expected in light of the historic abuse. This may be, in part, because the government has never fully acknowledged their complicity. Yet how can we move forward if we do not know where we are moving from? The situation as it stands is unsatisfactory. The way forward may well require an independent inquiry: for culpability, catharsis, and change.

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^[1] Elizabeth Stanley The Road to Hell: State Violence Against Children in New Zealand (Auckland University Press, Auckland, 2016) at 2.^[2] Confidential Listening and Assistance Service Some Memories Never Fade (June 2015) at 13.^[3] “Tolley rules out apology for child abuse in state care” Radio New Zealand (online ed, New Zealand, 30 November 2016).^[4] Stanley, above n 1, at 35.^[5] At 27.^[6] At 37-38.^[7] At 46-47.^[8] At 78.^[9] Confidential Listening and Assistance Service, above n 2, at 13.^[10] At 60.^[11] Confidential Listening and Assistance Service, above n 2, at 28-30.^[12] Report of the Committee against Torture A/64/44 (2009) at 105.^[13] Aaron Smale “Child abuse report ‘shut down’” Radio New Zealand (online ed, New Zealand, 24 November 2016).^[14] Letter from Christopher Finlayson (Attorney-General) to Rosslyn Noonan (Chief Human Rights Commissioner) regarding the Human Rights Commission’s Draft Report on Historic Claims of Abuse (27 July 2011).^[15] Human Rights Commission “Demand justice for the survivors of abuse in state care” <http://www.neveragain.co.nz/>.^[16] Craig McCulloch “State care child abuse inquiry ‘a question of justice’” Radio New Zealand (online ed, New Zealand, 4 March 2017).^[17] Stanley, above n 1, at 169.^[18] Limitation Act 1950, s 4(7).^[19] White v Attorney-General [2010] NZCA 139.^[20] At [81] per France J.^[21] Stanley, above n 1, at 175.^[22] Chambers v R [2012] NZCA 56.^[23] Stanley, above n 1, at 182.^[24] Ministry of Social Development “Historic Claims” <https://www.msd.govt.nz/about-msd-and-our-work/contact-us/complaints/cyf-historic-claims.html>.^[25] Cabinet State Sector Reform and Expenditure Control Committee “Resolving Historic Claims of Abuse - Proposal to Bring Funding Forward” (November 2014) at [16].^[26] At [8].^[27] At [25].^[28] At [19].^[29] “State care abuse report ignored, judge says” Radio New Zealand (online ed, New Zealand, 10 March 2016).^[30] Stanley, above n 1, at 178.^[31] Aimee Gulliver “Payout for abuse victims ‘deeply flawed’” Stuff (online ed, New Zealand, 7 May 2015).^[32] Confidential Listening and Assistance Service, above n 2, at 6.^[33] At 15.^[34] Stanley, above n 1, at 183.^[35] Confidential Listening and Assistance Service, above n 2, at 37.^[36] Cabinet Social Policy Committee “Government Response to the Final Report of the Confidential Listening and Assistance Service” (8 September 2016) at [33].^[37] At [34].^[38] Inquiries Act 2013, s 6(3).^[39] Law Commission The Role of Public Inquiries (NZLC IP1, 2007) at 15.^[40] Inquiries Act 2013, s 11(1).^[41] Law Commission, above n 35, at 17.^[42] At 22.^[43] At 19.^[44] At 20.^[45] Matt Nippert “Govt spends $1m fighting abuse case - and loses” (25 March 2017).^[46] Stanley, above n 1, at 188.^[47] At 193.^[48] “Tolley rules out apology for child abuse in state care”, above n 3.^[49] Confidential Listening and Assistance Service, above n 2, at 20.^[50] Law Commission, above n 35, at 20.^[51] The Office of the Children’s Commissioner State of Care (August 2015) at 49.^[52] At 51.^[53] Confidential Listening and Assistance Service, above n 2, at 13.^[54] Ministry of Social Development “Investing in Children Programme” <https://www.msd.govt.nz/about-msd-and-our-work/work-programmes/investing-in-children/#MinistryforVulnerableChildrenOrangaTamariki5>.^[55] Ministry of Social Development “Core Services” <https://www.msd.govt.nz/about-msd-and-our-work/work-programmes/investing-in-children/five-core-services.html#PreventionServices1>.^[56] Laura McQuillan “Q&A: What's different about Oranga Tamariki, the Ministry for Vulnerable Children?” Stuff (online ed, New Zealand, 3 April 2017).^[57] Confidential Listening and Assistance Service, above n 2, at 33.^[58] Sonja Cooper, Amanda Hill and Rebecca Hay Alternative Report in Advance of New Zealand’s Review at the 73^rd Session of the United Nations Committee on the Rights of the Child (August 2016) at 4.