Part Four - What we have learned about State redress processes

The terms of reference require us to investigate redress and rehabilitation processes for those who have suffered abuse in care. The term redress includes compensating people for past wrongs by, for example, a payment of money, as well as other steps to rehabilitate or otherwise put things right (217). Governments and institutions can provide redress through a combination of different measures such as the courts, claims processes, investigations, prosecutions and inquiries.

People who seek redress for abuse in care have frequently suffered significant trauma in their lives, and many have personal or living circumstances that make it difficult for them to take part in a court case or claims process. Some are suffering from the psychological effects of abuse, such as PTSD, or other mental health or addiction problems. Many are disabled people, including people with learning disabilities that make it particularly difficult for them to take part in a claims process. Many are in prison.

Some went through many care settings and have no clear picture of who was responsible for their care. Many face barriers to disclosing or discussing their abuse, or have a deep distrust of officials. Many more have suffered discrimination or marginalisation throughout their lives. Māori claimants are not just survivors of abuse in care, but belong to a people who have been subjected to colonisation. The State has particular obligations to Māori, as tangata whenua, under Te Tiriti.

Recognising the importance of this subject to many survivors, we made redress processes by the State and faith-based institutions the subject of our first investigation. We began by producing an issues paper in mid- 2019, and holding public hearings from September – December 2020. We heard from 27 witnesses in the public hearings including 14 survivors and family members, most of whom had been represented by Cooper Legal – the law firm that has acted for the overwhelming majority of legally- represented claimants. The subject is broad, and the investigation will continue in 2021, building on the public hearings held in 2020 and will include roundtable meetings, research, wānanga and other policy and consultation work.

We will continue to hear from survivors in private sessions, and will also seek further evidence from those who have dealt directly with the Crown, without legal representation. We will publish a full report with our findings and recommendations in 2021. We will review any responses to our recommendations over the remainder of the inquiry and report further as necessary.

In this interim report, released shortly after the close of the first public hearing on State redress, we summarise the key themes to date. Much of the detail will be included in the report next year rather than in this interim report.

Obtaining redress from the State

Over the last 20 years, more than 5,000 people have made claims against the State for abuse in care, either via the courts or directly to the Ministry of Social Development, Oranga Tamariki, Ministry of Health (218) or Ministry of Education (219). More claims continue to be made. The Ministry of Social Development, for example, told us its historic claims team still receives about 40 new claims a month (220). New claims also continue to be filed in court.

The State has defended claims made in court, while progressively developing a range of out-of-court settlement processes. To date, slightly more than half of all claims made against State agencies have been closed, either with a resolution – usually made up of a financial payment and an apology – or discontinued (221). More than 2,000 remain outstanding, and we have heard that even the resolved claims have in many cases left grievances for the claimants concerned.

Many survivors told us that making a claim was traumatizing because the response was so protracted, they were frequently disbelieved and had to relive their abuse, sometimes numerous times. Nor had they yet received the justice they sought.

Many survivors also want – and need – more than monetary compensation, something reflected in the international human rights conventions and declarations. They want counselling, psychological care, medical treatment, assistance with housing and training to boost their employability. They also want their experiences to be heard and acknowledged. That means a genuine apology for the abuse they experienced and a recognition of the profound impact it has had on them and their families.

For Māori, there must be consideration of ngā tikanga Māori and recognition of whakapapa, aroha, mana, utu, mauri and tapu.

Any consideration of redress for personal injury must take account of New Zealand’s accident compensation scheme. This has existed since 1974 and compensates those who have suffered personal injuries within specific categories defined by legislation and in court and tribunal decisions. Those entitled to cover are unable to sue in court – a core element of the scheme.

Many survivors of abuse in care have accident compensation cover for some or all of their injuries, and are therefore unable to sue for compensation for those injuries – although the position is often complicated. Accident compensation can therefore be both a component of the redress provided by the State to victims and survivors of abuse, and an obstacle to some legal claims for redress.

The State’s response to claims by Lake Alice survivors

The State examined the question of redress for abuse in care claims in the 1990s in response to claims by former residents of Lake Alice Hospital’s child and adolescent unit, which operated from 1972 to 1977. In the mid-1990s, two former residents of that unit brought claims in the High Court against the Crown for serious abuse they had suffered in the unit.

In early 2020, the United Nations Committee Against Torture found New Zealand in breach of the Convention Against Torture for failing to conduct a full and impartial investigation into abuses at Lake Alice (222). We have begun an investigation and plan to hold a public hearing next year on the matter.

We heard evidence from one of the early claimants, Leoni McInroe, who filed her claim in 1994. She described the litigation process as eight-and-a-half “gruelling years of emotional battering, abuse and bullying from the Crown” (223). The Crown later apologised for its avoidable delays in progressing the case, although the Solicitor-General described the apology to us as “woefully inadequate” (224).

In 1999, a large group of Lake Alice claimants filed claims in the High Court seeking redress for mistreatment in the unit. The Crown had earlier decided against establishing an out-of- court settlement process, but in 2000 Cabinet accepted a recommendation from the Prime Minister and Minister of Health to direct Crown Law to pursue such a process.

Their recommendation recognised the potential legal defences available to the Crown, including a defence under the Limitation Act 1950 (225). However it also noted that the State had a moral obligation to help those harmed while in its care. It also considered the distress claimants would face in the courts, the vulnerability of those individuals and the potential for an alternative process to address claimants’ needs better than litigation. For these reasons, the Crown chose not to rely on the legal defences available to it.

Instead, the government of the day set aside a sum of money, and introduced a specific out- of-court settlement process for these claimants. A retired judge heard from each claimant and determined a settlement amount, after which each claimant received an apology from the Prime Minister and Minister of Health. Claimants merely had to report their abuse and show they were at the unit during the relevant time. This process involved a decision-maker – the judge – who was independent of the government agencies responsible for Lake Alice.

The government later extended this process to others who had been at the Lake Alice unit at the relevant time and who made claims after the initial group. The Crown funded a lawyer for any unrepresented claimants among this group. We heard that to this day the Ministry of Health continues to receive new claims from survivors of the Lake Alice child and adolescent unit.

Although there is no longer an independent decision-maker, the ministry offers a settlement and an apology from the Prime Minister if the claimant was at the unit at the relevant time. The amounts it offers are based on the settlement amounts determined by the retired judge.

The State defended other claims in court

From the time of the Lake Alice group settlement, more and more survivors began seeking compensation from the State for abuse at other psychiatric hospitals, as well as at child welfare and educational settings. As the numbers grew, Cabinet several times considered developing a group settlement process similar to Lake Alice, but did not do so, accepting the advice of Crown Law and government agencies, particularly the Ministry of Social Development, that the new claims showed no evidence of “systemic abuse” – a test the Crown adopted to distinguish the Lake Alice group from later claims.

The Crown was also concerned these claims were too broad to accept at face value, that readily settling out of court might make the State a target for exaggerated or false claims, and that an alternative mechanism might set a precedent for others with grievances to demand alternative mechanisms to the courts. For these reasons, the Crown did not set up a Lake Alice-style group settlement programme for these claims. Instead, it took up the legal defences it had relinquished in the Lake Alice claims process and defended claims in court.

Of the hundreds of claimants who have filed cases in the courts, only a handful have ever had their claims fully heard. Of those claims, very few were decided in favour of the claimant (226). The barriers to a successful judgment are substantial and numerous, including:

accident compensation legislation that bars those with Accident Compensation Corporation cover from suing in court for compensation (227)
the Limitation Acts 1950 and 2010, which allow a defence against claims more than six years old (228)
immunities under mental health laws protecting staff from liability for their actions (229)
the inherent difficulty in proving, in the absence of written records or other corroboration, that specific abuse occurred in State care
the difficulty in proving that the abuse suffered in care was the cause of later life circumstances
establishing direct or vicarious liability, particularly if the victim was abused while placed with another organisation, or abused by someone other than the caregiver, such as a foster sibling rather than a foster parent.

The highly sensitive and traumatic nature of the abuse in question also strongly discourages many survivors from making claims in court.

The Crown has vigorously defended the small number of claims that have come to court, and consistently invoked the limitation defence and other statutory barriers described above. The Crown has largely been successful in defeating the claims, even when courts have found that the claimants were abused. The Crown’s success in the courts has discouraged many other claimants from pursuing their claims to a hearing.

The Solicitor-General, who is responsible for the conduct of Crown litigation, acknowledged that civil litigation in the courts could be a “brutal” forum for survivors and that the Crown had not been sufficiently survivor- focused in its approach. However, she told us it has been appropriate and necessary for the Crown to use the defences available to it to defend many of the cases.

She said State agencies are not generally found liable for abuse in care under New Zealand’s legal framework, as the courts’ decisions showed. She said Crown agencies had to balance claims by abuse survivors against the need to be responsible with public money. The ministries largely agreed that court proceedings were difficult for survivors, adding it was for this reason that they had developed the claims processes discussed next.

We have some sympathy with the view that civil litigation is not a well-suited forum for survivors of abuse that happened many years ago, and that it often cannot give survivors the resolution they want. We also agree that it is appropriate for the Crown to be able to defend itself in accordance with the law. However, we are concerned that in conducting these cases the Crown has at times gone beyond a neutral application of the law and used strategies that appear to have been designed to discourage other claimants.

In our view, some of the Crown’s conduct has failed to meet the high standard expected of the Crown in conducting civil litigation, and that we expect from the Crown when facing claims from survivors of abuse in State care.

We heard evidence of many deficiencies in the Crown’s approach in the few cases that came before the courts. In Ms McInroe’s case, the Crown was responsible for long and avoidable delays. It did not keep claimants adequately informed of the progress of their cases, which could have been done through their lawyers. In some cases, it did not properly follow the Crown litigation strategy, which from 2008 promoted the settlement of factually meritorious cases.

It failed to ensure the facts of cases were adequately assessed at an early stage so that factually meritorious cases could be identified and settled promptly. It did not engage in meaningful settlement discussions, even when requested by survivors. It actively resisted settlement payments, even when abuse was proved. In one case it failed to disclose highly relevant information adverse to the Crown case, including the previous convictions of an alleged perpetrator, for a long period of time.

In one case, the Crown led a survivor to believe he needed to drop a police complaint so the Crown could interview the perpetrator. The survivor dropped the police complaint, but the Crown then failed to speak to the perpetrator.

In another case, it engaged private investigators and gave them overly broad instructions, leading a State Services Commission inquiry to find it in breach of the State Sector Code of Conduct. It opposed name suppression for sexual abuse victims on strategic grounds, something described by the Solicitor-General as appalling and unjustifiable (230). It opposed adjournments, despite the lack of prejudice to the Crown, when a claimant’s lawyer was without funding. It required claimants to prove facts the Crown knew were likely to be correct.

At trial, it employed aggressive tactics, particularly including improper lines of cross- examination, suggesting that abuse survivors should have disclosed the abuse at the time. It adopted a starting assumption that claimants and their witnesses were lying and colluding, even when the evidence showed they were more than likely telling the truth.

The approach taken by the Crown exacerbated many survivors’ distrust of the Crown and compounded their trauma. Earl White described feeling treated like a criminal: “All of the specific incidents of violence I described by staff members were challenged. I was told they were all denied and that I had made them up as fabrications. I kept responding that I stood by what I had said and continue to do so today. It was quite traumatising to be called a liar and being challenged every time I answered with what I knew to be true” (231).

Keith Wiffin said he got the sense that the Crown considered “it was some sort of interesting game for them, new and different. For us, it was about our lives” (232).

In our view, there is some justification for survivors’ views. The Crown appears to have had a determined focus on defending litigation to minimise the State’s liability, in part to deter future claims through the courts and also in the knowledge that victories for the Crown in court would minimise the negotiating power of claimants in out-of-court processes.

In conducting the litigation, the Crown became caught up in the adversarial process and lost sight of the human reality underlying the cases – the survivors who had been abused in State care. The Crown was entitled to defend itself, but the Solicitor-General accepted the Crown may have had a degree of tunnel vision while in litigation mode.

The Crown has made some changes over time to the way it conducts litigation. For example, there is now a bespoke case management system that gives claimants some choice when cases are brought on for hearing.

Agencies have developed their own out-of-court claims processes

Despite the State’s success in the courts, the stream of new claims into the courts and to the State agencies grew. In spite of suggestions to the contrary, the government maintained there was no need to establish a Lake Alice style out of-court process for settling claims (233). It accepted advice that there was still no evidence of systemic abuse in care institutions, and that the risk of liability was low.

However, to deal with the backlog, and continuing influx of new claims, Cabinet approved a revised Crown litigation strategy in 2008 that encouraged relevant government agencies to resolve claims directly where possible, including settling meritorious claims. The phrase ‘meritorious claim’ was not fully explained in the document, and the understanding of the phrase developed over time.

In response, the Ministry of Social Development, Ministry of Education and Ministry of Health – and more recently Oranga Tamariki – have developed their own out-of-court claims processes (234), which offer settlements to claimants even when legal defences such as limitation and the accident compensation bar would be available. These individual processes became the State’s de facto out-of-court claims mechanisms and continue to this day.

Unlike the Lake Alice process, these claims processes remain within the control of each agency and have no independent decision- maker or review mechanism. Claimants can accept the agency’s assessment of their claim and settle or reject it and go to court, in which case Crown Law and the agencies will continue to raise strong defences.

Each agency’s claims process is different. Each has different eligibility rules and different approaches to settling claims. The Ministry of Social Development, for example, will accept a claim from any person who believes he or she was harmed as a result of abuse or neglect while in the care of the various child welfare departments before 1 April 2017 (235). The Ministry of Education, on the other hand, will accept claims only from a person abused or neglected while attending a residential special school or primary school before 1989 (because schools’ boards of trustees are responsible for abuse after that date), or a State school that has now closed (236).

We heard evidence that the Ministry of Education also requires a higher burden of proof than the Ministry of Social Development, although the Ministry of Education disagreed with that and both agencies told us they considered their approaches were consistent. The Ministry of Education carries out extensive investigation processes.

In contrast, the Ministry of Social Development is constrained to paper-based reviews. The Ministry of Health carries out very little investigation of claims, but offers “wellness payments” that are much lower than the settlement offers made by other agencies (237). The processes within the agencies have also changed over time. These different processes have led to starkly different results depending on where a claimant was in care, and when they made a claim.

Survivors and their advocates and supporters have found the processes difficult to access, confusing, slow and frustrating. Survivors expressed frustration that there was no single place to file claims, particularly those who have been in the care of several agencies and must approach each to make a claim. Claimants were concerned that the agencies seemed to have complete control of the processes. The agencies decided what they would accept and what they would offer, and survivors had no ability to appeal against any offer to an independent body.

We heard many survivors talk about feeling disbelieved, powerless and distrustful of the agencies. Several spoke of accepting offers reluctantly because they wanted the process to be over.

The fact there is no single agency to make inquiries to, or lodge a claim with, has resulted in a great deal of frustration for claimants shuttling between government departments, often with lawyers in tow. It also seems to have led to inefficiencies.

Many agencies, for example, have or are belatedly planning separate consultation with Māori to meet partnership and engagement obligations under Te Tiriti – a process that is inefficient for both the Crown and Māori. Following a Cabinet paper in December 2019 calling for work towards a possible single process, agencies have developed terms of reference for the work but not started the work itself. Meanwhile, the Ministry of Education and Ministry of Social Development appear to have moved further away from such an outcome, having abandoned previous efforts to carry out joint assessments of claims.

It is clear from the evidence we heard that the ministries were faced with more claims than they were capable of resolving given the complexity of those claims, the needs of survivors, and the expertise required. Most continue to struggle with a backlog of claims (238). The agencies’ responses have been disparate and lacking in urgency. On the whole, their processes have been reactive and ad hoc, despite some progress particularly by the Ministry of Social Development.

The agencies gave evidence of recent improvements, notably allocating more resources to them, making them more survivor-focused, offering more “wraparound” services and in some cases giving Māori more input into their design. These are welcome improvements. However, many have been made only very recently and vary from agency to agency. There are no current plans to introduce any independence into the processes.

Overall, it seems to us that the decision by successive governments to continue with separate claims processes while defending claims in court has resulted in a missed opportunity to look more broadly and more imaginatively at non-court solutions to a social injustice whose scale has become increasingly apparent with each survivor who comes forward.

Successive governments have justified not taking a cohesive and comprehensive approach based on the advice that there is no evidence of systemic abuse. This ran contrary to the information increasingly in the hands of the agencies and Crown Law. The resulting narrow focus has avoided consideration of the Crown’s obligations under Te Tiriti, as well as New Zealand’s human rights obligations.

In contrast, we heard evidence from Stand Tū Māia, a trust that manages the assets and liabilities of former State children’s health camps, about its approach to redress. About three years after it was formed in 2000, it began receiving claims for redress from children abused at health camps. The trust’s chief executive, who is empowered to work directly with claimants, told us its redress process aims to heal and restore. The focus is on the claimant’s needs, which may include financial support and/or cultural, therapeutic or practical forms of support.

Information to guide claimants has been hard to find and patchy

Many survivors remain unaware they may be able to make a claim. State agencies have published little information about their out-of- court claims processes and how they work, although there have been some recent improvements. Even now, there is limited published information on eligibility criteria or guidance on what evidence is considered or how settlement amounts are calculated (239).

For example, the Ministry of Education has made available only very basic information about timeframes for making claims. The Ministry of Health has nothing on its website to indicate it even has a claims process. Some survivors may not have access to the internet or the ability to find and navigate their way through online content easily.

Survivors spoke of not knowing that a claim could be made until much later in their life. Patrick Stevens was sent to the Lake Alice child and adolescent unit in the 1970s and was therefore eligible for the separate Lake Alice claims process run by Ministry of Health. However, he did not contact Cooper Legal to start the claims process until March 2017 after 18 months of assistance from his health worker. He received a payment under that process in 2019, but died less than a year later.

Others described the difficulty of finding out about the processes when they wanted to make a claim. James Packer said the absence of any useful publicly available information “made the processes so hard to understand, to know what was required, and what outcomes were possible in redress. We knew nothing about eligibility of claims, how they were being assessed and by whom, or what sort of compensation was available. There have been so many delays and no clarity around timeframes” (240).

Another survivor, Joan Bellingham, said: “There was never any clarity or certainty. There was also never any support through the process. I constantly felt like I was battling uphill to get people to recognise me or believe what I was saying actually happened” (241). She said clear procedures and some financial resources and other support would have alleviated a great deal of personal stress.

Deaf and disabled survivors and those in prison have particular difficulties obtaining and understanding information about claims processes and what support is available. Disabled survivors and their advocates told us some had difficulty understanding that what had happened to them was abuse or what a claim was. Similarly, some struggled to assess possible solutions. We heard of one survivor, for example, who had trouble understanding the difference between an offer of about $5,000 and another of about $600.

It is clear information about the out-of-court claims processes is difficult to find, not survivor – focused, patchy and often confusing. Agencies have not been proactive in promoting their claims processes or making information accessible. Nor have they shown any initiative in identifying individuals or groups of individuals who may have claims and telling them about their options.

The onus has been on survivors to find the information and make a claim or contact a lawyer. This has particular relevance for disabled people, who face additional barriers to accessing information.

We are concerned that this situation continues for contemporary claims. From late 2019 Oranga Tamariki has run a claims process for people abused in its care since 2017. However, it published information on its website about this process only in late October 2020 and not in a well-signposted area (242). To reach the page, it is necessary to scroll to the bottom of the homepage, click on “compliments, complaints and suggestions” then under the heading “feedback” there is a link to “claims” (243).

Legal assistance has been limited and uncertain

Abuse claims involve complex areas of law and fact, and many survivors cannot afford a lawyer. Low-income survivors can qualify for legal aid, although this comes with uncertainty and risks. The series of adverse court decisions in abuse in care cases in 2007 and 2008 – followed by successful applications by the Crown for costs orders – led the Legal Services Agency to send a notice of intention to withdraw legal aid to 1,151 claimants pursuing court cases for abuse in care (244).

Each claimant had to justify why his or her claim should continue to receive funding, and explain why the claim had sufficient “prospects of success”. About two hundred claimants lost their legal aid after their justifications were rejected, although about half of those had legal aid reinstated after seeking statutory reviews or appeals, providing further information to Legal Aid as part of the review process, or making fresh applications (245). This process placed a significant burden on claimants and their lawyers and led to lengthy delays before they could resume their claims.

Those who do receive legal aid may also end up with large debts because legal aid is treated as a loan. Currently, State agencies make a contribution towards claimants’ legal aid debt in their settlement offers, and the Legal Services Agency writes off any remainder. However, this is not done until claimants accept a settlement or proceedings are finished. In the meantime, many claimants may feel they have a debt hanging over them.

There was uncertainty at an early stage whether a claimant who sought redress through the out-of- court processes would be eligible for legal aid funding. The Legal Services Agency required a claimant to file a separate application if he or she decided to pursue an out-of-court settlement.

In the early period, the Agency required a claimant to show the Crown did not intend relying

on the limitation and accident compensation bars and also accepted abuse had occurred – before it would grant legal aid for an out-of-court process (246). Legal Aid Services now makes legal aid available for out-of-court processes and court proceedings, and has funded more than $20 million for historic abuse cases.

The Ministry of Social Development told us it would fund some legal advice for claimants who went through its out-of-court process and had no lawyer. It also offers a limited amount (unless more is specifically requested) for legal advice before signing a settlement agreement (247).

Other forms of support have also been limited

Disclosing and talking about abuse, especially sexual abuse, can be very traumatic, and counselling can help heal those psychological wounds. Some agencies have funded a limited amount of counselling for survivors to support them going through the process.

For example, the Ministry of Social Development told us it helps claimants get counselling and also connects them to appropriate support services where necessary (248). If accident compensation or community support options are not appropriate, the ministry will fund a limited number of counselling sessions to help an individual through the claims process (249). It may also provide counselling as part of a settlement offer.

A report commissioned by the ministry said some Māori survivors found the support or counselling offered to them to be inadequate to help them deal with the effects of disclosing their experiences (250). Of those survivors who did receive counselling, some said it helped

them to realise they were not to blame for their abuse or allowed them to verbalise their experiences and move on. The ministry told us it would have approved more counselling, but only a small number of claimants have chosen to take up this support (251).

Access to mental health services is hampered by the fact that we have a small workforce for this type of work – particularly for Māori and Pacific support services (252). Addressing this capacity issue will be necessary to make improvements in this area. Survivors in prison – many of whom are Māori – have found it particularly difficult to access counselling, not only because of workforce limitations. Survivor Kerry Johnson told us how he struggled to build a relationship with a Counsellor. Once he did, “it helped me a lot, it has let my brick wall down”. However, when he transferred to another prison, counselling with that counsellor could not continue.

Other supports, such as advocacy, have also been generally unavailable. Some claimants spoke of the difficulty they faced reading their own records without assistance. Many other claimants and supporters talked about the absence of any support, such as an advocate or person who could help them understand and complete the necessary paperwork to make a claim.

Cheryl Munro advocated for her son James Packer, who is deaf and has Asperger’s syndrome. She described the process as “just debilitating. You feel so alone. There was actually no one to help you”. She felt it would be impossible for someone in James’ position without an advocate: “It’s just too draining, too difficult” (253). Agencies told us that tikanga- based supports or assistance to connect with whakapapa may be made available, but only if requested by a claimant.

In addition to the counselling support described above, the Ministry of Social Development has made very recent attempts to introduce more comprehensive support services, what it calls “wraparound” services, as part of its claims process. It offers services to help a claimant through the process as well as helping claimants access other government services, such as housing through Kāinga Ora, various benefits through Work and Income and health services. Advocates have welcomed this development (254). However, it is a pilot programme only, and a full programme is three to four years away (255).

Despite these recent improvements, our general impression is that State redress processes have put too little focus on survivors and their wellbeing or support. Agencies have provided little in the way of specialised support for disabled people, such as those with a learning disability – a particular concern for survivors from residential special schools and disability support services and institutions. Overall, agencies seem to have made too little allowance for survivors’ individual cultural, tikanga Māori, language, disability or mental health needs.

Survivors have struggled to get access to their records

Claimants have faced considerable hurdles obtaining full and speedy access to records of their time in care. These records contain information vital to helping claimants piece together their past and make a detailed claim. Some claimants have waited more than 12 months to be given their records. In many cases, claimants find their records are incomplete or heavily redacted or they receive nothing at all from some institutions because their records have been destroyed as a result of agencies’ retention and destruction practices.

Redacted records sometimes have hundreds of pages blacked out, mostly because of agencies’ legal obligation to protect the privacy of other individuals named in the records. Sometimes information is withheld, such as details about family members or photos of school classmates, that would help claimants remember and understand their time in institutions. The removal of this and other information fuels survivors’ suspicions and distrust about agencies’ motives and sincerity.

Advocates have also raised concerns about inconsistent redactions and the unnecessary redaction of relevant information, both by agencies directly and through the court process of discovery. In some cases, these complaints have been upheld in court (256).

There is no independent service to help claimants access or understand their records, which is a particular issue for those in prison, who have limited access to community support services. Instead, agencies conduct their own searches and determine what to release.

Record-keeping is a matter for each agency, and there is no uniform digitising of records. An individual’s records may be scattered among different institutions, government agencies and district health boards. Poor record-keeping has also sometimes made it difficult for survivors to get records. Patrick Stevens described how difficult it was to get records from the relevant district health board because his name had been spelt wrongly and his birthdate incorrectly recorded by medical staff when he was a child (257).

There is a need to address the creation, maintenance and retention of records as well as claimants’ access to them. The absence of records and difficulty in obtaining information is an issue both for individual claimants and for anyone trying to get a better picture of abuse in care.

We are concerned that some agencies collect very little data through the claims processes themselves. None, for example, could give us an accurate breakdown of the demographics of people making claims. This is a missed opportunity to gain a real understanding of what abuse has occurred and who it has affected. We are working to develop a better picture of this information as part of our redress investigation and broader research work.

Claims processes are not independent or transparent, and agencies have controlled all aspects

Agencies control every aspect of the claims processes: they find the records, they decide what to release or withhold, they assess the claims, and they make the settlement offers. Processes generally lack transparency, and claimants have no appeal to an independent adjudicator beyond the general right of complaint to the Ombudsman. Agencies argue that claimants who want factual findings or want to dispute settlement offers can go to court.

However, this is not a practical option for most because of the substantial legal barriers already discussed that stand in the way of a successful judgment. These barriers include the Crown’s choice to rely on defences such as the Limitation Act 1950 when cases do go to court, which can prevent factual findings from being made or damages being awarded when abuse is found to have occurred.

There is force in the argument of survivors and others that the agencies responsible for the abuse should not be the ones determining claims. For example, some Ministry of Social Development claims assessors have worked for the Department of Social Welfare or Child Youth and Family as social workers, and this gives the perception that those assessors may have some loyalty to the Ministry of Social Development. All four agencies maintained that their claims processes were operated impartially and there was no direct conflict of interest in their processes.

However, survivors definitely see a conflict of interest, especially when an agency is simultaneously defending court cases and determining claims. Survivor James Packer said this arrangement was inherently unfair: “The process of investigation needs to be independent and not carried out by a ministry that is interested in protecting its conduct and reputation, and those of the teachers. It feels to us like there is a conflict and so impossible for claimants to truly feel the process is fair and impartial” (258).

Survivor Keith Wiffin made a similar point, saying any claims process should be independent of the ministries and agencies that employed alleged perpetrators and that might be liable themselves (259):

“Otherwise, the agencies are effectively investigating themselves, and I believe my experience shows that agencies cannot be trusted to do so objectively. The independent claims process should have a victims’ representative. It needs to have a mandate to fully investigate claims, and make findings about what happened so that instances of abuse can be properly acknowledged and addressed. The government agencies must be involved, but the final arbiters of what abuse we suffered and what the agencies should be liable for must be from outside the agencies.”

The processes’ lack of transparency was another failing. There has been little information on how agencies have investigated and assessed claimants’ allegations. Agencies might refuse to accept part or all of a survivor’s claim and give no clear explanation or justification, or they might decline to provide all of the information on which they based their decision.

The Ministry of Education, for example, told us it will give claimants the records and information relied on by the assessor to make an assessment of their claim, but it does not give the claimant the assessor’s report (260). Claimants and their lawyers told us they were left speculating about why an agency made a particular offer.

We saw examples of the Ministries of Social Development and Education refusing claims on the basis that there were no written records to establish that the abuse occurred. Despite the Ministry of Social Development’s evidence that it does not require official documentation of abuse, and that it accepts claims on face value, our impression is that it, like other agencies, often makes more of the lack of records than seems to be justified. Abuse is rarely recorded or documented directly.

Naturally, this lack of transparency has fuelled survivors’ distrust of the process. Despite the evidence of the Ministry of Social Development that its claims team “listened to people’s accounts of their experiences without judgement” (261), many survivors spoke of feeling disbelieved, devalued and frustrated at the rejection of their claim for the simple reason that – through no fault of their own – there was no written record of the abuse. They felt that agencies did not regard their voices as valid evidence of what happened to them. Said one, Georgina Sammons (262):

“I still don’t understand how [the Ministry of Social Development] can say there was ‘insufficient evidence’ of psychological and physical abuse. They didn’t even talk to anyone who might be able to corroborate what I was saying. For example, no one talked to [my sister] or my foster sisters or any of the other people in the care of our foster parents who would be able to talk about the abuse we suffered in that household. Just like with my police complaint, I felt like I was being treated like a liar, even though no one actually took the step of talking to anyone who might know.”

For many survivors, this was part of a consistent pattern of not being believed, even when there was physical damage to show. Joan Bellingham had scars on her head from the frequent use of ECT when she was in Princess Margaret Hospital. However, she told us that when she tried to get accident compensation, the Accident Compensation Corporation did not believe her, saying the scars could have been from cigarette burns.

At this stage, we see the lack of transparency and independence of the claims processes as major concerns and significant barriers to achieving fair redress in which survivors can have faith. Several of the agencies said an internal process offered advantages, including that their employees were in a good position to make assessments because of their in-house knowledge and expertise and that it ensured the agencies responsible were held accountable for redressing the harm they had caused.

We believe a process featuring some measure of independence could still tap in-house expertise and, moreover, would be far more likely to ensure accountability where it was due. This is a matter we will be examining in more detail later.

Decisions have taken too long

Survivors have often had to wait a long time after making a claim to receive a settlement offer. The Ministry of Social Development and Ministry of Education have often taken years to make settlement offers (and at each step of the way claimants can be required to recount – and re-experience – their abuse). The Ministry of Social Development gave evidence that at the moment it usually takes four years to resolve a claim after it has been registered with the agency (263). The Ministry of Education told us it has received 177 claims in the last 10 years, but has resolved only 46 (264).

Survivors said agencies told them nothing about how long it would take to process a claim, and when it arrived, they felt pressured to accept whatever was offered simply to put an end to the ordeal and move on with their lives. This can be exacerbated by having to deal with several or more agencies.

Survivor Chassy Duncan first approached a lawyer about the abuse he had suffered in State care in 2007, when he was 18. Thirteen years on, and now aged 31, he recently received and accepted an offer from the Ministry of Social Development. He said: “I wanted to get on with my life and to start leaving the claims process behind. I knew the offer wasn’t as good as it could be, but after a lot of thought, I accepted the offer.” His claim over abuse suffered at Waimokoia School in Auckland was made in 2014 and was settled in November 2020 after he gave evidence at our public hearing.

Those who have sought redress through external channels have also faced long delays. IHC told us it filed a claim in the Human Rights Commission in 2008 on behalf of a group of disabled children, claiming unlawful discrimination. Twelve years later, they are still awaiting a decision about whether the Human Rights Review Tribunal will hear the case (265). These delays have a significant impact on the children, many of whom have left school while still waiting for a resolution (266).

Investigating and resolving abuse claims will inevitably take time, but that surely need not prevent claimants receiving clear, regular progress reports. We acknowledge that agencies have taken steps to try to reduce delays.

The Ministry of Social Development and Ministry of Education have both very recently expanded their claims teams to help clear the backlogs of claims. In 2015, the Ministry of Social Development also began offering a fast-track process to outstanding claims (received before December 2014), in which it accepted certain types of allegations at face value and made offers without thorough investigation. This was a one-off process that ran from 2015 to 2016. Despite more staff and other resources, agencies are still unable to keep up with the flow of claims, and backlogs are increasing.

There can be tensions in this area: without extra funding swift processes may sacrifice thorough investigation for speed. They may also result in lower payments, such as the Ministry of Health’s wellness payments, which are made on an untested basis and paid relatively quickly but at a modest level.

Remedies have been inconsistent

Many survivors and advocates considered agencies’ offers fell far short of what was reasonable to compensate for the harm suffered. Offers typically included a lump sum payment and an apology, although agencies usually stopped short of acknowledging liability for the harm. Survivors also criticised the significant variation in offers between agencies and even within the same agency.

Lake Alice claimants in the early 2000s, for example, received average payments of about $68,000, whereas the Ministry of Health now gives claimants from any other psychiatric institution a wellness payment of no more than $9,000 even if there is evidence of severe abuse (267). Amounts of this size are well out of step with those paid for human rights breaches such as unlawful detention and breach of privacy. They also fall far short of those offered by overseas redress schemes.

The Australian National Redress Scheme, for example, will make payments of between AUD$70,000 and AUD$150,000 for serious sexual abuse (268). In New Zealand, the Ministry of Social Development’s payment guidance suggests a maximum of $55,000 for chronic and serious sexual and physical abuse in a context of chronic, wide-ranging practice failures (269).

The amounts survivors received often paled in comparison to the rehabilitation costs they faced. James Packer, for example, received a wellness payment of $18,000 from the Crown Health Financing Agency and a settlement payment of $10,000 from the Ministry of Education.

His mother Cheryl Munro said: “James is not well now, so many years later, so getting a wellness payment was a bit of a misnomer for us.” She said the payment of $18,000 meant absolutely nothing to their whānau: “I mean, I spent $450 last week on medication for James, $250 the week before. I live on a pension. $18,000 was nothing… About the time James went to Sunnyside Hospital I had an inheritance of $75,000. That was gone within a year trying to keep James alive… $18,000 didn’t mean a thing” (270).

The agencies gave evidence that they did not calculate their payments to compensate for harm, but rather to acknowledge the harm or make a contribution towards improving the survivor’s wellbeing. The size of the payments also recognised the contribution of New Zealand’s accident compensation scheme, which provides no-fault compensation to individuals on the basis that they cannot seek compensatory damages.

Each agency acknowledged the importance of making payments that were consistent with those paid to other survivors. The point of reference, however, was always past payments, regardless of how they were arrived at. It was unclear to us the basis on which each agency calculated settlement offers.

The Ministry of Education gave evidence that it based its settlement offers on the Ministry of Social Development’s process, although it had never looked into the basis for that process (271). It also gave evidence that it did not attempt to evaluate the extent of the harm caused to a claimant in calculating the settlement amount because its calculation process did not allow for such a step. Its focus was instead on consistency with past payments (272).

The Ministry of Health adopted a similar approach, basing its “wellness payments” on settlement amounts offered by the Crown Health Financing Agency to 336 remaining claimants before its disestablishment in 2012 (273). And those amounts in turn were based not on any assessment of appropriate compensation for claimants’ abuse, but rather on finding a way to fairly divide the available $5 million between the 336 claimants (274).

We were left with the clear impression that no agency had undertaken any considered analysis of how to calculate appropriate settlement amounts. We also understand that agencies have not factored inflation into their payment levels, so the value of payments has been decreasing over the years.

Some survivors criticised the overemphasis on monetary compensation, such as it is, and the lack of other forms of redress to help them deal with the effects of abuse. The types of assistance that can help include educational assistance, employment training, counselling and help to reconnect with whānau. Ministries have occasionally provided some of these, but usually only if requested.

Many told us a crucial element of any compensation package was an acknowledgement of the abuse they had suffered and the harm it had caused. However, most of those who spoke at the State redress hearing found the apologies offered to them to be insincere and full of platitudes.

Paul Beale, for example, received an apology letter from the Ministry of Health for what he had endured at Parklands, a residential facility south of Auckland for those with an intellectual disability. The four- paragraph letter said in part: “I am now able to acknowledge the seriousness of the matters that you raised… I hope that this letter of apology and the compensation will enable you to bring some closure to those experiences. I also hope that with this resolution process behind you, you are now able to move forward with a sense of peace.”

His sister, Gay Rowe, said: “I was stunned. Even reading it now I just want to get it and screw it up and toss it in the bin because, frankly, I didn’t really think it was worth the paper it was written on” (275). She said it demonstrated that the ministry had no idea about Paul’s level of comprehension (276). A later, modified letter was only “slightly better” (277).

Agencies did not involve Māori when designing claims processes

Until very recently, agencies have had made little effort to involve Māori survivors, non-government organisations, whānau or hapū in developing claims processes – despite so many claimants being Māori, and without any apparent consideration of Te Tiriti obligations.

The Ministry of Social Development established its claims team in 2004 and developed its out-of-court claims process between 2006 and 2008. However, it was not until 2018, more than 10 years later and following the lodging of redress claims with the Waitangi Tribunal, that the ministry sought out a small number of Māori claimants to consult about its claims process.

The Ministry of Health has been facing claims since the mid-1990s, however it never consulted Māori while developing processes for responding to those claims (278). Oranga Tamariki has only been in existence since April 2017, but it also had not yet taken steps to engage with Māori in the design of its claims process (279). The Ministry of Education and Oranga Tamariki told us they intend to consult with Māori in 2021 (280).

It is well established that the Crown must act consistently with Te Tiriti principles and obligations, including active protection, tino rangatiratanga, equity, collaborative agreement and redress. International indigenous rights also include an obligation on the State to consult and cooperate in good faith with indigenous peoples to obtain consent to measures that will affect them (281). We note in this context the fact that a high proportion of Māori were among those abused and that a majority of claimants across the claims processes are Māori (282).

Some Māori claimants have raised concerns about not seeing a single Māori face throughout the entire duration of their claim, and the lack of tikanga Māori and te reo Māori in agencies’ processes.

The lack of independence in any of the processes was also a concern, as was the fact Māori themselves were not involved in delivering redress. Finally, the State has made no attempt to recognise and put right the harm done to Māori collectively by taking Māori children into State care and abusing many of them there. Nor has it made any attempt to recognise Māori tino rangatiratanga over Māori tamariki in the processes themselves, a point eloquently made by Moana Jackson at our contextual hearing.

The agencies’ current proposals to involve Māori and incorporate tikanga into their settlement processes appear to us to be tentative, limited in scope and weak, particularly given the Crown’s knowledge of its Treaty and human rights obligations in this area.

The Ministry of Education told us it had recently tried to hire Māori assessors, but without success (283). As noted, Oranga Tamariki has yet to consult Māori about the design of its claims process. This is a matter of real concern, given the large number of Māori currently in its care, although Oranga Tamariki assured us that iwi and Māori partners would be involved in the design of its new processes.

All in all, we are left with a sense that the Crown and its various agencies have learned little from the past, and that there will be more imposition on, rather than consultation or engagement with, Māori unless deliberate steps are taken to do otherwise.

The Crown has misunderstood the size and nature of the problem

In our view, the Crown as a whole has failed to recognise the true nature and extent of the problem with abuse in care. It has repeatedly taken a narrow view and failed to recognise that the many claims with its agencies or before the courts are the petitions of vulnerable people with legitimate claims of injustice against the State. That injustice flowed from a failure of the State to protect those in care – often vulnerable children and young people.

Instead of acknowledging the underlying problem requiring a comprehensive response, Crown agencies have dealt with claims using the orthodox tools of civil litigation and bureaucracy. This has resulted in a failure to see or understand survivors’ needs, to engage meaningfully with survivors, and to draw on the available knowledge of abuse.

The Crown has repeatedly underestimated the size of the problem and accepted overly optimistic forecasts that claims would dry up or be settled within relatively short periods of time. Despite creating out of court settlement processes that have matured over time to varying degrees, the Crown has foregone opportunities over many years to adopt a broader view and initiate fundamental reform. This has contributed to the strong sense of injustice that many survivors described to us.

Principles of effective redress

In the next phase of our work, we will consider options for future redress processes, taking into account feedback from survivors, their advocates, Māori and the Crown and its agencies. This will include consideration of changes to litigation (through both legislative changes and approach) and out-of-court claims processes.

There will always be a need for a range of options to ensure that different needs are met. We outline here our current view of the main general principles required to make redress effective. We may amend these principles as we consider further evidence and feedback. We do not yet make comment on how to implement them. Any changes to redress processes should be designed according to sound principles, in consultation with survivors and in partnership with Māori.

Be consistent with the Crown’s obligations under Te Tiriti and the United Nations Declaration on the Rights of Indigenous Peoples

A redress process, including steps to design it, should:

be consistent with the Crown’s obligations under Te Tiriti
be consistent with the United Nations Declaration of the Rights of Indigenous Peoples, including the right to self- determination and the State’s obligation to obtain free, prior and informed consent to administrative decisions that affect indigenous peoples.
Make genuine apologies

Apologies should:

acknowledge the wrong done and the harm caused
accept responsibility for that harm
express regret or remorse for the wrong and the harm
be made by a person at an appropriate level of authority to be meaningful
commit to making amends
commit to avoiding any repetition of the wrong
be flexible, and respond to the wishes and needs of the individual survivor
be consistent, where appropriate, with tikanga Māori.

Be open and transparent about how the redress process works

A redress process should:

provide sufficient information to allow survivors to make informed decisions about how to deal with their experiences
publish clear and useful information about how it works, including the how to make a claim, the eligibility and assessment criteria it uses, how payments are calculated and any other services or support available
make this information available to non-English speakers, deaf and disabled people and those in prison.

Offer effective support and assistance to empower claimants

Once a claim is made, a redress process should:
offer independent advocacy support to claimants
offer counselling and cultural and other supports
offer assistance to track down and understand claimants’ records.

Set a reasonable threshold for proving abuse or demonstrating harm

The threshold for proving abuse and demonstrating harm should:

not defeat meritorious claims

Act independently

A redress process should:

be sufficiently independent of the agencies and institutions having obligations to, or being responsible for, the alleged abusers and claimants to avoid real or perceived conflicts and build trust in the process
have a mechanism to ensure it can investigate claims appropriately, sufficiently and as vigorously as possible.

Make fair and consistent decisions

A redress process should:

make decisions that are predictable, transparent and consistent from claimant to claimant and from year to year
make decisions that are fair and equitable.

Be timely and communicate with claimants

A redress process should:

have adequate resources so it can resolve claims in as timely a manner as possible
give claimants the choice of a brief, quickly resolved
assessment or an extensive, longer-to-resolve assessment
give claimants an accurate estimate of how of long an assessment will take and keep in close touch to provide progress updates
give priority and urgency to claims from elderly or unwell claimants.

Help claimants get records that are as complete as possible

A redress process should:

help survivors obtain their records in as full a form as possible while still respecting the privacy of others
help survivors to understand their records
favour disclosure wherever possible
make consistent disclosures wherever possible, irrespective of whether made under court discovery rules or on request
give specific, not general, explanations about why it must withhold information for privacy reasons.

Provide redress that helps restore claimants’ overall wellbeing

A redress process should:

offer redress that contains a package of measures to help restore the health and wellbeing of survivors. These

may include:

financial payments
continuing access to counselling services at any time the survivor (and, where necessary, family members) wishes to use them
help with education and employment, healthcare, secure housing, financial advisory services and community activities
offer claimants specialist counselling services to deal with drug or alcohol addiction problems that may be related to their experiences
help to establish connections with whakapapa, iwi or broader family
help for Māori survivors to build up their cultural
knowledge and te reo Māori skills
help to identify opportunities, such as memorials, for the collective recognition of the harm caused to particular groups.
recognition of the intergenerational harm of abuse
support for claimants to build and maintain healthy relationships with their own families and children
access to restorative justice-type processes where appropriate
a review of claimants’ criminal records
discussions with relevant agencies about how to prevent abuse to those currently in care.

gives claimants choice in the process and in the redress received.

Comply with human rights principles relating to effective redress processes

A redress process should be consistent with international human rights principles by:

providing remedies that are accessible, effective and take into account the vulnerability of certain survivors, such as children and disabled people
including elements of restitution, rehabilitation, compensation, prosecution and guarantees of non-repetition.

We intend undertaking a detailed assessment of options to improve redress processes. We encourage all those with an interest to contribute to this process. Proposals will be most useful if founded on principle, informed by the lessons of past experience in New Zealand and overseas, and capable of meaningful and practical implementation.