5 Oct 2020

Victims, IHC and lawyers combine in new chapter of a never-ending process

7:30 pm on 5 October 2020

By David Cohen*

Analysis - The initial part of the latest round of public hearings for the Royal Commission of Inquiry into Abuse in Care has now ended - or, depending on how one reads these things, just begun.


Hearing from people who experienced abuse in institutions "will help us to build a picture", the commission says. Photo: 123rf.com

Judge Coral Shaw and four commissioners in Auckland this past fortnight heard from people who have sought redress for abuse experienced at one or other of the 26 state-run residences that operated around the country from the 1950s onwards.

The inquiry, the terms of reference for which are so wide as to be extrinsic to the brief that was originally announced nearly three years ago, is also examining claims relating to faith-based institutions.

In the first phase of the latest hearing, there was testimony about civil claims made against the state, civil litigation in the courts and before the Human Rights Tribunal.

Hearing from people who experienced abuse and neglect in institutions "will help us to build a picture", the commission has said.

Presumably, that picture's clarity will only benefit from greater emphasis that was given in these latest hearings to actual former wards rather than outside "experts".

Along with a dozen directly affected individuals, there was extended testimony from a couple of lawyers who have dealt with government departments on behalf of claimants.

Another notable contribution came from the intellectual disabilities support organisation, IHC.

No doubt, those who have followed the sometimes painfully stop-start progress of the commission since its establishment would have recognised at least a few of the names.

Keith Wiffin

Keith Wiffin. Photo: Aaron Smale / @ikon_media

Keith Wiffin has already been the subject of a number of media reports. He will be a familiar face to some - and, generally speaking, a familiar story to many more.

Wiffin's father died when he was aged 39 back in the early 1970s. The then 11-year-old boy, his three siblings and an overwhelmed mother were left in the lurch. So the state stepped in.

His experience of residential care began with a stint inside the Epuni Boys' Home, a 42-bed complex next to Lower Hutt's sleepy Waiwhetū stream with three residential wings, including a makeshift cell block in which new admissions were processed.

At Epuni, Wiffin says he experienced abuse from a number of "housemasters", the educational-sounding name for those workers who sometimes assumed these administrative positions with no relevant training, and indeed in a number of instances walked in off the street.

One of those men, Alan Moncrief-Wright, was later convicted on a number of sexual violation charges.

Wiffin was later placed in a family home - a sort of halfway house between the larger residences and a small foster-care arrangement - where he also suffered harm.

In 2006, with the support of the Wellington lawyer Sonja Cooper, he took his case to the Ministry of Social Development's (MSD) historical claims unit, whose purpose it was - according to Wiffin and others - to make token payouts and small gestures, mainly in the interest of helping the government avoid heftier payouts.

A touch flamboyantly, Wiffin likened this leg of his experience to a native warrior doing battle against colonial forces "trying to buy us off with muskets and blankets".

Sonja Cooper and Amanda Hill are lawyers who were involved with the Wiffin case and hundreds of others like it.

For the commission, they expanded on the nuts-and-bolts evidence relating to redress that they had already sketched out a little at the "contextual" hearing held late last year.

Their testimony drew on what they say has been the experience of thousands of claimants they have represented over the years, for whom the Wellington-based firm, which has received millions of dollars in legal aid, has secured more than $22 million in government payouts.

Each of the cases Cooper's firm has brought before the courts has been vigorously defended by the relevant government agency. Often the state has wielded technical defences such as the Limitation Act or else denied the existence of any widespread abuse or indeed any pattern of historical abuse whatsoever.

Paradoxically, perhaps, more in public money has now been spent on defending these actions as would have been involved in simply signing off on a comprehensive compensation deal.

Amanda Hill and Sonja Cooper from Cooper Legal.

Amanda Hill and Sonja Cooper from Cooper Legal. Photo: RNZ / Katie Scotcher

The protracted effort that has seemingly gone on defending so many of these cases has also meant that a few of the ones that possibly have involved an element of gold-digging on the part of claimants have not been able to be isolated as such.

At one point in the past decade, progress was so slow on all fronts that, by one estimate, it might have taken 150 years if every claim was to have its day in court.

Body similar to Waitangi Tribunal suggested

Cooper suggested it might be better for an independent body be set up to investigate these cases. How that might practically work was anybody's guess though - perhaps a bit like the Waitangi Tribunal, she suggested.

IHC advocacy director Trish Grant talked about an agonisingly lengthy historical case involving a six-year-old boy who did not know his last name. He was sent to an institution where he was put to work and allegedly abused as he was bounced from institution to institution for the next 13 years.

Grant gave evidence that the boy, known as "M", received no schooling, no pay for the work he did, and state authorities frustrated his attempts to have his abuse investigated.

In all, it took until he was 74 years old before the man, referred to as "M", received compensation and an apology. He has since died.

Impact on abused children's education

The case of 'M' touched on the educational theme that could yet assume a much greater focus in the commission's coming deliberations.

Rare, after all, was the ward of the state whose literacy was not, at best, stunted by anything up to seven years as a result of time spent in these old places. Either because of the dismal education on offer, or as a result of the perpetual churn of kids being transferred, sometimes quite abruptly, from one institution to another, "academic retardation" tended to be the educational order of the day.

Indeed, what used to be known as the Department of Education, which historically administered these residences before MSD took over in the mid-1970s, often found itself breaking the same educational laws it ostensibly existed to uphold.

As B M Fitzgerald, an erstwhile supervising welfare officer once admitted in a memo, the situation of a boy being resident in the institution for many months without receiving any schooling was unconscionable in light of the department's role in zealously prosecuting parents for allowing the same situation at home: "This seems to me to be a contradiction in terms and an injustice to those parents concerned," Fitzgerald noted, and by the time the commission is through will probably not have been the only one.

Or will they? In the second phase of the redress hearing, which starts again later this month, witnesses for the Crown will give their own evidence. The commissioners and the public at large will therefore have an opportunity to hear more from the other side about the process that sadly never ends.

* David Cohen is a Wellington-based journalist and author of Little Criminals: The Story of a New Zealand Boys' Home. He writes regular analyses of the Abuse in Care Royal Commission for RNZ.

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