Whakatakinga
Introduction

1.         Marylands school was established by the Catholic Hospitaller Order of the Brothers of St John of God (the Order) in Christchurch in 1955. The work of Hebron Trust commenced in 1986 by agreement between the Bishop of Christchurch and the Order. Marylands was a private special school providing education and care for disabled tamariki. Hebron Trust ministered to rangatahi in need. The Order was invited to Christchurch by the Bishop of Christchurch and was offered the Marylands property by the Bishop. It had support, accreditation and funding from the Department of Health, the Department of Education and the Department of Social Welfare.

2.         Marylands, and at times, Hebron Trust, operated places of depravity, sexual, physical and spiritual violence towards the tamariki and rangatahi in the care of the brothers. Brother McGrath sexually and physically abused rangatahi while working at Hebron Trust. Hebron Trust had been intended to assist rangatahi in need.

3.         In this report we briefly outline the history of the Order. We describe how and why it set up Marylands and how together with the Bishop of Christchurch set up the work that became Hebron Trust. We outline the social, religious and cultural attitudes of the day, particularly towards young people and disabled children. We explain the role of the State in the establishment and continuing operations of these institutions.

4.         Through the voices of survivors, we describe the nature and extent of the abuse and neglect experienced at Marylands and Hebron Trust and the impacts on themselves, their whānau and support networks. We also describe the nature and extent of abuse by members of the Order at St Joseph’s orphanage (the orphanage) located next to Marylands. This is because it appears from the evidence that the Order had access to and abused children from the orphanage.

5.         We also outline the duties and responsibilities of the Crown, the wider Catholic Church and the Order under international and domestic law. These include their obligations under te Tiriti o Waitangi for the care of tamariki and rangatahi Māori.

6.         We identify the systemic and operational failures to oversee and protect at-risk children and young people in their care. We also assess the responses to complaints of abuse including the police investigations and criminal trials.

7.         The key factors that caused or contributed to the abuse and neglect that occurred at Marylands, Hebron Trust and the orphanage are also discussed.

8.         Like all inquiries, this Royal Commission is not a court of law and does not have the power to make findings of criminal or civil liability. This report makes findings about the roles and responsibilities of the State, the Catholic Church, the Order and the brothers. These findings will support the recommendations for change in the Inquiry’s Final Report.

9.         Our Inquiry is underpinned by te Tiriti o Waitangi and we recognise and respect the tino rangatiratanga of mana whenua, Ngāi Tūāhuriri and more broadly Kāi Tahu, where Marylands, Hebron Trust and the orphanage are located.

Reo
Language

10.      At times the language that is used in this report to describe at-risk tamariki and rangatahi is offensive and wholly inappropriate. The Inquiry uses this language to accurately reflect the records but in no way condones its use or the sentiment behind its use.

11.       Many of the survivors we heard from described being raped by Brothers of the Order. We recognise that the word ‘rape’ is commonly used in Aotearoa New Zealand to describe non-consensual penetrative intercourse of any person by a male. Legally however^[19], ‘rape’ is a gendered offence which requires the penetration by a penis of female genitalia.^[20]

12.      So, in parts of this report we have used the terms ‘sodomy’ or ‘anal sexual violation’ to describe the offence of non-consensual anal intercourse.

13.      This is because between 1962 and 1986, including the timeframe when sexual abuse was occurring at Marylands School, the offence of sodomy existed in our Crimes Act. The offence required proof of anal penetration of a male or a female, by a male. Consent to anal intercourse was no defence to the charge. It was repealed by the Homosexual Law Reform Act 1986.

14.      From 1986 to 2005, including the timeframe when Brother McGrath offended against victims at Hebron Trust, the offence was described in the Crimes Act as anal intercourse and consent was a defence if the person was at least 16 years old.

15.      From 2005 the offence for non-consensual anal penetration is included within the charge of “sexual violation by unlawful sexual connection”, contrasted to the current offence of rape, specifically “sexual violation by rape”.

Horopaki
Context

16.      In this part we outline the religious context and societal attitudes that enabled Marylands and Hebron Trust to be established and function as they did.

17.      Our findings about these matters are at the end of chapters 1, 2 and 3.

18.      The Order had no previous connection with Aotearoa New Zealand. Although at least one of the brothers, Brother McGrath, was a New Zealander, there is no evidence that they understood te Tiriti o Waitangi or the nature of the relationship between Māori and the Crown, as was common in the 1950s. When the Order came to Aotearoa New Zealand, there is no evidence it engaged with te Tiriti o Waitangi. Nor is there evidence that the Bishop of Christchurch or the wider Catholic Church ensured the Order was informed about this context,^[21] despite its early and influential presence in Aotearoa New Zealand. Archbishop Paul Martin agreed, that when looking at it from a 2020-2021 point of view, neither the Bishop nor the Order were focused on any cultural or ethnic considerations when establishing Marylands.^[22]

19.      The Order is a religious institute. Its members are mostly non-ordained, or lay, brothers.^[23] As well as the vows of poverty, chastity and obedience which are universal across all Catholic religious institutions, the Order’s vowed members also profess an additional vow of hospitality^[24] by which each member is to devote their life to serve the sick and socially disadvantaged.^[25]

20.     The Prior General is the global leader of the Order and is based in Rome. The Order operates a decentralised model where the management of local issues is “the responsibility of the Provincial of the particular province”.^[26]

21.      Internationally, the Order has 22 provinces. Aotearoa New Zealand is part of the Order’s Oceania province (together with Australia and Papua New Guinea).

22.     Each Province is led by a ‘Provincial’, with assistance from his Provincial Council.The current Provincial of the Oceania Province is Brother Timothy Graham, who is based in Australia. Under the Order’s constitution and statutes, the Provincial must regularly visit each part of the province.

23.     In each Province, there are ‘communities’ such as the Christchurch community. Brothers are appointed to these communities to assist with the activities that the brothers are involved in. Each community is governed by a ‘Prior’, with assistance from his local Council.

24.     Where complaints are made directly to the Prior, he is expected to direct these to the relevant Provincial.^[27]

25.     The Prior General has an oversight and monitoring role. For example, he receives each province’s meeting minutes, annual reports and financial returns,^[28] receives reports of brothers’ criminal convictions^[29] and is informed of intended supervision of brothers being released from prison.^[30] The Prior General meets all leaders of provinces (Provincials) each year in Rome,^[31] convenes a General Chapter every six years and a Provincial Chapter every four years.^[32]

26.     The Prior General exercises his leadership function through a variety of ways, such as authorising new statutes, governing the Order,^[33] receiving and approving applications by brothers for solemn profession (the taking of final vows). ^[34]This leader can also influence local decision-making.

27.      If sufficient cause exists, the Prior General can remove or transfer any brother from any position or office.^[35]

28.     The Pope is the head of the global Roman Catholic Church and sovereign of Vatican City (the Holy See). The Pope appoints bishops in all parts of the world but has no direct role in the appointment of the leader of a religious congregation and was not involved in the election of the Order’s Prior General.^[36]

29.     However, Canon Law governs the relationship between the Pope and ordained clergy and members of religious institutions (such as the Order). The Pope has the right to initiate an Apostolic visitation and send a visitor to inspect and report back at his discretion.

30.     Given these relationships, the Holy See can be expected to be informed of the serious allegations of abuse, investigations into the abuse, and criminal convictions of the brothers in the Order in the Oceania province (and elsewhere). They should be reported to him by the Prior, who in turn would have received a report from the Provincial for Oceania.

31.      Catholic bishops have pastoral responsibility for all people in their diocese.^[37] Pastoral responsibility for bishops means to ensure that institutions and structures are set up for the care of the spiritual needs of people.^[38] Since 1917, Canon Law has to some extent provided that the bishop of a diocese has fundamental authority over and responsibility for all works of ministry and all activities involving the ‘care of souls’ within the diocese.^[39] This includes all works carried out by diocesan priests, members of religious institutes such as the Order, and lay people whether employees or volunteers.^[40]

32.     Religious institutes such as the Order have a high degree of autonomy, especially in relation to their governance and discipline.^[41] The leadership of a religious institute has formal responsibilities over the activities of a religious institute. The bishop and the religious institution‘s leader are expected to consult each other.^[42]

33.      If a bishop becomes aware of abuse taking place within an order, including the sexual abuse of a child, he has important obligations. These obligations, in the Catholic Church’s Canon Law, have changed over time. Prior to changes implemented in 1983 a bishop was obliged to refer any concerns about matters relating to the actions of a member of a religious institute to the superior of that institute. After 1983, the obligations required more active involvement, but the responsibility still sits with the religious institute. The bishop is responsible for making sure the religious institute is taking the appropriate steps in relation to any investigations and actions.^[43] If the brother is found guilty of a crime, the bishop should dismiss the brother from the order.^[44]Members of the wider Catholic community expect the bishop to be responsible for what happens in his diocese, including at schools run by a religious institute, such as Marylands.^[45]

34.     Aotearoa New Zealand has a mix of mandatory and voluntary reporting laws. Up until 2020, the Catholic Church’s national protocols did not mandate reporting allegations of abuse to police. However, from 2020, there is now a requirement to make a report to ‘competent civil authorities’ if a complainant is under the age of 18 at the time of making the complaint. In addition, if the complainant is over 18 years and does not choose to report to police, the church authority may make a report to police if there is a risk of harm to the complainant or any other person.

Te taurimatanga me te whakaako tamariki hauā i Aotearoa i te rautau 20
Care and education of disabled children in 20th Century Aotearoa New Zealand

35.     In early 20th century Aotearoa New Zealand, disabled children were generally isolated and separated from their whānau and community.^[46]

36.     Until the 1960s, families of disabled children were frequently advised to place the child in an institution. This was thought to be best for both the child and the family, particularly the child’s siblings. When families went against official advice, they received little or no support.^[47]

37.      At this time, eugenics was an influential movement in Aotearoa New Zealand. Eugenics is a set of beliefs and practices that aimed to improve the genetic quality of the human population. It led to the exclusion, institutionalisation and isolation of people and groups perceived to be inferior^[48] such as people with learning and physical disabilities, those with neurodiversity, and those in mental distress. Ableism is the active expression of eugenics, and is the consicous or unconscious discrimination in favour of the able-bodied and able-minded.

38.      The treatment of disabled people and their families was strongly influenced by the medical model of disability whereby disability was considered to be an individual’s problem, something wrong or broken that could be cured or contained^[49] and that people in authority know better than the disabled person or their family as to what is ‘right’ for them. This resulted in their removal from mainstream society, discrediting their attempts to complain, and the lack of resourcing or effective monitoring of their wellbeing and safety.

39.     The Government reaffirmed its policy of institutionalisation for children with learning disabilities in the 1953 report of the Consultative Committee on Disabled Children (the Aitken report). This report found that large-scale residential institutions provided the best model of care for children with learning disabilities and that children should be placed in those institutions from the age of five, despite opposition from some parents.^[50]

40.     The Department of Health’s Mental Hygiene division outlined this position in its 1956 annual report:

“By and large, it can be said that the intellectually handicapped are happier amongst their own. They enjoy a community life in which the competition and striving is not too great for their intellectual capacity. This can be achieved by residence colonies much larger in size than is often contended.” ^[51]

41.      As a result, the prevailing societal view was that disabled people should be out of sight of mainstream society and away from whānau and the community. Categorising disabled people, separating them from whānau and placing them in institutions remained commonplace in Aotearoa New Zealand until the 1970s. Censuses of the psychiatric hospital populations carried out in 1966, 1971, and 1976 show the proportion of resident patients aged less than 30 continued to increase, with fewer long stay patients and more short stay patients.^[52] Remnants of this system remain today. This will be explored further in our Final Report.

Te whakatuanuitanga o te ariā tinana pakari, ehara te mātauranga motuhake i te whakaarotau a te Kāwanatanga
The dominance of ableism, special education not a government priority

42.     Ableism was also embedded in Aotearoa New Zealand’s education policy. The Education Act 1914 placed a legal obligation on the Minster of Education to place children in special schools, where parents had failed to provide their children with a suitable education. In reality the education received in those schools did not include proper special education services. Until the 1980s however, special education was not a government priority and the education provided in those schools was severely deficient. The Department of Education supported different services, but did not offer a centralised special education service.

43.     Now special education services have progressively evolved and include extra help, adapted programmes or learning environments, specialised equipment or materials to support children and young people accessing the curriculum, support for learning and help participating in education.^[53]

44.     The focus then was on care for disabled people rather than education. The direct consequence was that disabled children were denied and deprived of their right to education. While the State did provide some special schools, it was up to families to seek out the education option they felt would best meet their children’s needs.

45.     It was not until the late 1980s that the law and policy shifted and increasingly, disabled people remained at home and received an education in their local communities. The Education Act 1989 legislated for the right for all disabled children to attend their local State school on the same terms as other children.^[54] However, there remained many challenges in accessing education in communities and even today many disabled children continue to find themselves assigned to segregated education outside mainstream education.

46.     When Marylands was opened, its emphasis was on training rather than education, which we now understand to be reflective of ableism. Correspondence from the Department of Education in 1955 noted: “The Brothers of St John of God are an Order of the Roman Catholic Church, which has as its vocation the nursing, care and training of mentally-retarded boys and adults.”^[55]

Ngā Whakakitenga: Horopaki
Findings: Context

47.      The Royal Commission finds:

a.         Prior to the Order’s expansion into Aotearoa New Zealand in the 1950s, there is no evidence that the Order took steps to understand te Tiriti o Waitangi, te ao Māori, or the nature of the relationship between Māori and the Crown.

b.         In the 1950s societal views (supported by regulatory frameworks) of ableism and eugenics supported the removal of disabled children and adults from their whānau to place them in institutions, including residential special schools.

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