29 Nov 2016

Justice delayed, justice denied

Jimmy spent five years in welfare institutions.
3:52 pm on 9 December 2016

Analysis - Between the 1950s and 1980s more than 100,000 children were taken from their families and put into state institutions. Many suffered abuse and neglect while in state care. 

Jimmy McLaughlin (pictured above) steps off his back verandah in Papatoetoe making a brief flicker of eye contact with a half-smile.

His face brightens when I mention the eel hanging from the clothesline, almost touching the ground. We walk over to study it. The distraction seems to calm him.

“Caught it out by the airport. I rubbed salt on it to keep the flies off. I need to get the nephew to bone it. I’ll get my smoker out later.”

We adjourn to the verandah. He offers a cup of tea but seems puzzled as he pours it. 

“I got a letter from the lawyer,” he says. A long pause.

“I don’t know what it’s talking about.” Another pause.

 “You wanna read it? You might be able to explain it.”

I glance over it. The letter, from Sonja Cooper, reads like the template that it is. It outlines an offer of compensation from the Ministry of Social Development (MSD) for abuse that McLaughlin suffered while in state care as a child. There is an offer of money, with an explanation of what accepting it means.  With some emphasis the letter says the alternative of not accepting the offer – of proceeding to court - is deeply uncertain. 

The letter is several pages long with a form attached. McLaughlin didn’t get past the first page. 

“I don’t know what they’re talking about. So I just put it in my folder.”

The folder is a bulging mass of papers and envelopes he has barely read. His literacy is scratchy, largely learnt in prison.

Scooped up by police at the age of 10 for wagging school, McLaughlin spent the next five years in welfare institutions. It is difficult for him to talk about that time in his life.  When the conversation comes round to it, for the first 10 minutes his voice is a disjointed stutter. He appears oblivious to the person he is talking to, making virtually no eye contact. He seems horrified that anyone would want to know the details of what went on and only refers obliquely to the sexual abuse. He bears remarkably little malice but wonders vaguely what his life would have been like had he had even a basic education.

“I found it hard at school. I wagged school all the time. I was walking the streets one day and I got picked up by the cops. They took me home and nobody was there because my mother was working. So he took me to Ōwairaka Boys' Home. I thought I was only going to be there a night or maybe until my mother got home from work. But I ended up being a state ward and I was a state ward for five years going from boys’ home to boys’ home.

 “I don’t think I had any education in those five years. There was a school there but I don’t remember doing any schoolwork.”

The separation also badly affected his mother.

“She didn’t have a vehicle in those days but she used to come and visit me at the boys’ home twice a week.

“It was pretty hard on her, just because I was wagging school she had to go through all that. They didn’t expect me to be in there that long. Then I was moved down the line. They just had to wait until I was released, which was five years later.”

Kohitere Boy's Training Centre in Levin.

Kohitere Boy's Training Centre in Levin was one of the main welfare institutions that has been the subject of complaints. Photo: RNZ / Aaron Smale

His memory of his 10-year-old self is centred on one emotion – fear.

“It was just the fear of the other boys. It was real military style. There was physical abuse from the older boys and sometimes from staff members. Just for simple things like not keeping in time with the star-jumps we’d get hit in the face.”

McLaughlin remembers that after about a week a hearing decided he would stay in state care. 

“I don’t really want to talk about other things that went on there. But the psychological damage when I did get released, I found it really hard. I found it really hard to fit in with guys my own age. I was afraid of authority. I had a poor education. I couldn’t read or write, I had to teach myself when I got a lot older.

“My escape from all of that was I drunk a lot of alcohol. I couldn’t get on with other people because I didn’t know how to. I ended up turning to drugs and alcohol. 

“I found it good when I had a drink. I was only happy when I had a drink. I could have sat there in sackcloth and ashes but having a beer was a bit better.”

He speculates on what path his life might have taken but for his time in welfare.

“Maybe I would have went another way if I didn’t have those five years of what I went through. But I was institutionalised. I kept going to jail for drinking and driving.

“Because of the abuse that I went through in welfare care – the sexual abuse, the physical abuse and the psychological abuse – it put me on the path that led me to my life of imprisonments and broken relationships.

“I brought this mentality out with me that you’ve got to be tough. Which wasn’t sort of right when it comes to relationships.”

McLaughlin’s story is not unique.

Between the 1950s and 1980s more than 100,000 children like him were taken from their parents for various reasons and put into state institutions. Many were abused and neglected while in state care. How many and to what extent is unknown. The state has made no serious attempt to find out. 

The form letters and repetitive updates McLaughlin constantly gets span the nine years since he first went down a legal path. The government’s approach during that time has a long and convoluted back-story.

More on this story - Government accused of killing off critical HRC report

The moral panic about youth

Victoria University criminologist Elizabeth Stanley.

Victoria University criminologist Elizabeth Stanley. Photo: RNZ / Aaron Smale

There’s still a British burr to Elizabeth Stanley’s accent. The criminologist based at Victoria University has researched how countries deal with massive human rights abuses by the state. 

She came to New Zealand assuming it was the paradise it portrayed itself as.

“A lot of criminologists see New Zealand as a restorative place. Once you arrive here it doesn’t take long to understand that New Zealand is a very contradictory place. While we have restorative elements it’s an intensely punitive place.”

After giving a public lecture about state violence she was approached by lawyer Sonja Cooper (more on her soon) who was representing historical abuse victims. She was given access to Cooper’s files and, combined with other evidence, discovered a litany of state abuse that shocked her.

The research she did on 105 cases, which included interviewing 40 of the individuals concerned, laid the foundation for her book The Road To Hell: State Violence Against Children in Postwar New Zealand.  However, she had to put the project to one side for a couple of years because the subject matter was too gruelling.

While Stanley has a bubbly temperament, occasionally, when she talks about her research, darkness creeps into her eyes. On one occasion when talking about a person she interviewed who described being completely hollowed out, her voice catches slightly.

She says there are often deep assumptions about the character of the children taken into care and the families they came from.

“There were very few that you would see as being engaged in serious offending. I followed 105 people and there might have been two or three who had started to engage in burglary for example, which is obviously a flashpoint. Or who were also seen to be particularly violent. That person was really acting out from the experiences he’d received as a child. The rest of them, it was very minor, minor, minor stuff. One boy ended up in Epuni Boys’ Home for stealing a pencil.”

She says the cases reflect a political climate that was highly punitive.

“The policy wasn’t the problem. The politics was the real issue. Through the 1950s, for example, there was a real moral panic about youth delinquents, young people on the street. This was the time when delinquency-spotting really came to the fore and child welfare groups went around different communities and encouraged people to engage in delinquency spotting.”

Most of the victims of historical abuse were Māori – in some institutions Māori made up 80 percent of the residents. Stanley says this was a response to the high number of Māori moving to cities after the war.

“The funnelling of Māori children into welfare institutions was the real start of our systematic mass imprisonment in this country. For me, that’s where it all starts. The issue of urbanisation was really central to that.  For the first time in lots of cities and small towns Māori had appeared and, while there was a real impetus for Māori to move because they were now living in this wage economy, once they got to cities and towns they were often excluded from a lot of the opportunities that Pākehā people enjoyed. They were disadvantaged from the start.

“[That] a lot of children [were] being left to their own devices links into the structural disadvantages faced by Māori. There were both parents working two or three jobs, dropping into the house every now and again, just to keep things running, just to stay afloat.

“We can really chart differential policing through that period. So what we see is through the 70s and 80s Māori really beginning to dominate welfare institutions. Not necessarily for criminal purposes - being out of the street, truanting, maybe stealing a bit of milk money. Once they were identified they were very quickly escalated into the system.”

At first she didn’t think of the state welfare homes as incarceration. But when she started to interview people she changed her mind. The regimes they were subject to were very similar to prison regimes. 

“They were horrific. Really austere. Children were left in the secure cell during the day with nothing. Nothing. A concrete plinth.  They even removed the mattress so they wouldn’t be comfortable during the day.  They’d be boiling in the summer, they’d be freezing in the winter.  In some institutions they even had a nodding system where the guards or workers wouldn’t even speak to them. You can’t imagine what that would do to you if you’re an adult let alone if you’re 11, 12, 15, that dehumanisation.”

That dehumanisation included regular use of physical violence as punishment, including electric-shock therapy. Some victims say the shocks were applied to their genitals and other parts of their bodies. Some children were controlled with drugs that sedated or knocked them out.  

Kohitere Boy's Training Centre in Levin.

Kohitere Boy's Training Centre. Photo: RNZ / Aaron Smale

Stanley says it isn’t inevitable that a child who spends time in a state welfare home will be a future criminal. But the probability that those in prison have come from this background is high.

“I think it’s important to say that we shouldn’t look at children in care and see them as future criminals. Most children coming out of care do not engage in crime. But when we look at it from the other side we see from the imprisonment perspective that a lot of those people have, at some point, been in care.  So there’s a real pipeline there.”

She says the damage done to the individuals who went through welfare homes means they are in constant contact with government departments. And the relationship is one of deep distrust and hostility.

“Sometimes I talk to Child Youth and Family workers and they say, ‘Well, we go along and we’re really looking to help these families and they don’t want to know. I have to shout through the door to even get people to come out for five minutes to talk to me. And it’s a really confrontational and coercive experience.’ And I’m like, you have to understand where that comes from. Why should these individuals trust someone from the police, from Child Youth and Family. How has the government or the state shown that it is trustable?

“These things have really long tails and they’re intergenerational because those stories get passed down. Those stories can gain bigger prominence in the generations below as well. They are stories about how we are treated, not just an individual but how a family is treated, how our whānau is treated. Well, we’re not going to allow it.”

Not only are victims deeply distrustful – the state is still acting in ways that call into question its trustworthiness.  Currently the process for making a complaint about abuse in state institutions means going through a system set up and administered by the government department that ran the institutions where the abuse happened.

RNZ requested an interview with Minister for Social Development, Anne Tolley, to discuss why the complaints are being handled by the very department that is accused of carrying out the abuse, rather than an independent body.

Tolley declined to be interviewed for this story, but has since spoken to Morning Report.

A spokesman also provided a written statement:

“MSD’s Claims Resolution Team looks into historical allegations of neglect or abuse in former Child Welfare, Department of Social Welfare and Child, Youth and Family residences or foster care.

“The team has been operating as part of the Ministry of Social Development, independent of Child, Youth and Family, for a decade and has made more than 900 payments to people who suffered abuse or neglect.

“It can offer an acknowledgement and apology, financial payment, counselling and access to services or education.

“People with a claim filed in Court can use this process without discontinuing their claim.

“The Ministry takes every case seriously and conducts investigations into any allegations, and doesn’t defend cases where children and young people came to harm.

“Last year we introduced a fast track process, to provide claimants with an option to have their claim resolved faster while still receiving an apology and a financial settlement, subject to some fact checking.”

‘It appears that we have wronged you twice’ - MSD

However, Stanley’s book gives numerous examples of the ministry, and its predecessor, not taking every case seriously. One will suffice – Keith Wiffin took a complaint to MSD that he had been sexually abused by a staff member when he was in Epuni Boys’ Home during the early 1970s.

MSD told him it had done a full investigation and found nothing to substantiate his claims. He then found out when he participated in a story on 60 Minutes that the ministry had not spoken to the staff member concerned, Alan Moncreif-Wright. Instead, it had relied on departmental staff records, overlooking the fact that in 1972 Moncreif-Wright had been put on probation for indecently assaulting young boys at Epuni. In 1988 he was sentenced to four years’ prison for further sex offences.

Keith eventually went to the police and Moncreif-Wright was charged in 2011.

Moncreif-Wright pleaded guilty to charges relating to three victims he sexually abused while they were at Epuni, including Keith.

During restorative justice meetings with his abuser Keith obtained a written statement that implied there were other staff involved in abuse as well.

Keith received letters of apology from MSD chief executive Peter Hughes (currently head of State Services) and the head of the Historic Claims Unit for the way he had been treated.

Hughes said in the first paragraph that “it appears that we have wronged you twice”.

Human Rights Commission report never published

In 2009 the UN was also concerned about the way the cases were being handled. The UN’s Committee Against Torture called on New Zealand to deal with the allegations in a way consistent with its obligations under international human rights conventions.

The Human Rights Commission (HRC) duly picked up the challenge and began an investigation that evolved into a report. The report went through several drafts as interested parties were consulted, and was close to final version. It would have gone to the government and the UN. But it was never published.

When it was getting into its final stages, the Chief Commissioner at the time, Rosslyn Noonan, got a letter from Attorney-General Chris Finlayson. 

RNZ has obtained copies of both the draft report and the correspondence between Noonan and Finlayson

Noonan was willing to be interviewed. Finlayson was not.

In Finlayson’s first letter he accuses the HRC of not consulting with Crown Law, and says the report’s recommendations were a foregone, and flawed, conclusion. 

Noonan says that’s rubbish.

“What was infuriating was we had been wanting Crown Law to be involved from the beginning and they’d refused to on the grounds that, oh no, they just provide legal advice to government agencies. So it wasn’t their role to engage with us. So his objection to not having been consulted was...” She trails off into gently derisive laughter.

She says the pushback came pretty much exclusively from Finlayson and Crown Law.  MSD, though nervous, was cooperative.

“MSD engaged with us throughout the process very openly and constructively. They saw the original draft and commented on it quite extensively and the following draft picked up and incorporated a lot of their comments, as we felt appropriate obviously.”

“The tone of the Attorney-General’s letter was a little bit surprising, but on the other hand I think it’s very clear from my response to him that we took what he raised seriously. The whole point about providing a draft for comment was to make sure there were no factual inaccuracies and, if there are any serious challenges to the analysis, [that] we knew what those were and could discuss with the officials concerned.

“Our interest was in an authoritative, robust approach. We weren’t interested in making headlines, we were interested in achieving change and in having a positive human rights approach apply to the lives of people in New Zealand, in this case to victims of historic abuse.”

One of the key recommendations in the draft report is that the government should establish some kind of independent inquiry to deal with historical abuse claims.  It pointed to international examples to underline the point.

Attorney General Chris Finlayson

Attorney-General Chris Finlayson Photo: RNZ / Alexander Robertson

However, Finlayson took issue with the word ‘independent’, pointing out that the international law requires that inquiries need only be ‘impartial’. 

Noonan responded saying, “Although independence may not be expressly required by Articles 12 and 13, it is our view that it is an element of best practice and is arguably necessary to ensure impartiality.”

She went further in a subsequent letter: “The absence of a comprehensive, independent review leaves unanswered the question of the extent of systemic or institutional failure of the State’s duty to those in its care. The fact that neither agency mandated to settle claims is independent affects claimants’ trust in the process and the extent to which victims and, indeed, the public can have confidence that the outcomes are just and fair.”

Finlayson’s argument is that MSD’s current process is impartial and the cost of an independent inquiry to the state is not justified by the draft report. Noonan says that he’s overlooking a more general principle by focussing pedantically on the word ‘impartial’. 

“I think he was making a legal point technically in order to undermine the report. I think the substance of his approach was ‘shut the report down’.  In retrospect it looks even more like that now.

“Whether or not he may have been absolutely technically correct, our point was it not only must be independent but it must be perceived to be independent.

“In a way I regard it as something of a compliment to the Commission that they were so worried that the Commission was going to recommend this and they wanted to kill it dead before we did.”

She says a failure to face up to historical abuse of children in state care is one that spans decades and governments. 

Legal action against the government by people abused in Lake Alice psychiatric hospital meant the government could no longer ignore the issue.

“I think since the … Lake Alice hospital inquiry and the results of that, officials had been determined to not let anything like that happen again, to try to block it.

“I know the previous Attorney-General Margaret Wilson received very strong advice not to support any sort of independent review.  There was obviously very real concerns [that] the impact on government finances could be very substantial.”

But she regards this attitude as a complete failure of the victims.

“It is infuriating and sort of puzzling. I can’t see, other than the cost of compensation, how New Zealand wouldn’t be better off if we knew what had happened. We were able, as a society, to apologise to those that our system damaged, and we could make sure we didn’t make the same mistakes in the future.”

When contacted for comment Finlayson referred questions to HRC.

Focus should be on impartiality - Chief Human Rights Commissioner David Rutherford

The current chief Human Rights Commissioner, David Rutherford, comes across as a genial giant. Over the course of a 40-minute conversation he is both helpful and sympathetic regarding the injustice of historical abuse, but also slightly defensive when talking about the draft report.

Asked straight off the bat why the report was never published, he immediately sidesteps the question.

“It was never finished,” he says.

He details a technical explanation as to why the final draft was found wanting by him and a team of lawyers.

He says it wasn’t published because its conclusions were legally flawed. Anyway, he says, the UN Convention against Torture doesn't require an independent inquiry in such cases, only that any processes for dealing with them are impartial.

"What the convention says and what the committee endorses is that it must be impartial. And the view is that this meets the test of impartiality. So the real issue I think we should be focusing on is, ‘Is the MSD process impartial enough?’"

I point out that Noonan believed this was a technical argument avoiding the main issue.

“Ros is entitled to her opinion. Ros does not have a law degree. Three of the commissioners, including me, who came after her disagree.”

Noonan is, however, the current director of the Human Rights Centre at Auckland University Law School.

So I introduce into the conversation someone who is not only a lawyer but a judge –  Carolyn Henwood.

Judge Henwood was the chair of the Confidential Listening and Assistance (CLAS) panel that heard from over 1100 individuals who had been abused in state care, predominantly under the Department of Social Welfare.  She was also a Youth Court judge. The HRC consulted her when it drafted the report.

When I tell Rutherford that Judge Henwood told me there should not only be an independent inquiry of some kind but also a permanent tribunal overseeing MSD, he is halted in his tracks.

After stammering to find an answer he eventually says: “I would listen to Carolyn Henwood’s view any day of the week over anyone else who has dealt with this stuff.”

Regathering his composure he circles back to the UN convention’s legal requirement that an inquiry only needs to be impartial. It is the same argument Finlayson makes in his first letter to Rutherford’s predecessor. 

Judge Carolyn Henwood.

Judge Carolyn Henwood. Photo: RNZ / Aaron Smale

I interviewed Judge Henwood before I got hold of HRC’s draft report and the accompanying correspondence. But she had written her own report to the government – a report she believes has largely been ignored – and many of her views echo the HRC draft.

For a start, she points out the inherent conflict in MSD handling the abuse claims.

“The department is the perpetrator and also the person who is trying to put it right.  Some people are very, very anti the department because of all the harm and the way they’ve been dealt with over the years. So I don’t think it’s satisfactory and it’s still not satisfactory. I think something independent is needed.”

Henwood doesn’t go over the distinction between independent and impartial.  But she does believe the current process is grossly unfair to those it is supposedly trying to help.

“They (the department) are [setting] the criteria for payment of damages, they are [setting] the criteria for who gets an apology, they’re dealing with it all in-house, by whom I don’t know. And also Crown Law is involved and Crown Law are the ones that are on behalf of the government are defending the cases in court. And they are putting the full battle armour on in the courts.

“A lot of people don’t want to come forward and be a litigant in the High Court because they’re already stressed and many of them wouldn’t have the capacity to do it. Some of the people that I’ve seen have been in the mental health system or those who have been abused or neglected just couldn’t handle a court case. How would you do it? How unfair is that? 

“You need to understand that some of the cases we saw were very, very serious. You could meet a person who could not take their overcoat off because of their childhood. So they had to live with their overcoat on. Or they couldn’t leave the house having been raped so many times as a child.”

When Henwood was asked by the government to front Confidential Listening and Assistance Service panel she was initially sceptical, partly because the terms of reference were so narrow, partly because she believed she was being used. Her scepticism was never allayed, although she did feel privileged to be of some small help to those she interviewed.

“They were looking for a way of resolving the problems that confronted the government of the day. I met with Crown Law and I was told the Prime Minister, who was then Helen Clark, wanted to settle meritorious claims. Of course everyone wants to settle meritorious claims. The question is, how do you decide what that is?  As the department says, it’s taxpayers’ money. On what basis do you distribute it.  And this has been a problem throughout.

“It started out with just me. I had a concern that I [was] just being used to get away from the state facing up to its obligations in the courts. Probably I was to an extent but I thought it might be worthwhile.

“I was greatly honoured by the people that came forward. They in themselves brought their mana and dignity through to us so I thought this was so worth it. To see them, to meet them, to hear their stories of what they’d been through I think was the most valuable thing New Zealand could have done.” 

Some of the testimony left her gobsmacked.

“We were so astounded, dumbfounded you might say. The degree of physical violence, just how harsh it was. Nobody came about trivial things. When we’re talking about violence we’re talking about beatings, punchings, whacking with pieces of wood, jug cords, really extreme violence.

“Then there was sexual abuse. We thought it would be rape of girls, of which there was a lot, hundreds. With the men however, exactly the same.”

This led to her view that there should be an independent body not only to handle historical abuse cases but to oversee MSD and hold it accountable.

“The first thing I discovered was there was no duty of care articulated anywhere in the department. Because that’s the very first thing I thought, I’m a lawyer, I’m a judge, right, so I got on the phone: ‘Where’s the duty of care so I could look at how this fitted with the cases?’

“Much to my astonishment I found there was no duty of care articulated. They said it’s ‘do no harm’. I was astounded, so you could start there. The policy doesn’t have an infrastructure. I think they’re now trying to build this new department. I’m on the edge of my seat wondering whether these issues are going to be dealt with in that department.”

Henwood believes the most fundamental questions raised by the historical abuse cases relate to the ministry’s goals and accountability.

“To me an absolutely fundamental thing is the accountability. In welfare there is no process. There is no tribunal. The officer for the Commissioner for Children endeavours to do what he or she can. But I think you need a comprehensive duty of care – what are you measuring to – and an institution or tribunal that cases can be brought so you can see whether or not you’re delivering to your articulated goal.”

She believes CLAS was a halfway house that was never adequate for dealing with what had happened in the past or how to proceed into the future.

“I was content to be part of a whole of government response but what has happened is that it hasn’t been a whole of government response.

“I just regret that they didn’t pursue it because they didn’t see the value of it. In one sense I don’t think they paid attention. I think they threw away a pearl.”

MSD’s funding for CLAS eventually lapsed when it reached the end of the period the government had determined.  Aside from the civil litigation option, victims had to deal with the ministry’s in-house Historic Claims Unit (previously Care, Claims and Resolution Team) if they wanted some kind of resolution.  But she believes this missed an opportunity that was broader than just settling claims.

“They could have gone into the prisons and helped a lot of men who are in there deal with their past so they could rehabilitate more effectively and be less dangerous. Until you’ve got that off your chest you’re just swirling around. There’s a lot of people that still have those legacies from the past.”

Gangs originate in welfare homes - Henwood

Henwood’s report draws attention to how gangs had origins in the welfare homes and to estimates that approximately 40 percent of prison inmates have been through welfare homes.

Among her recommendations is that there should be an independent service available to prison inmates to help them deal with abuse they had suffered in state care.  She found a deep connection between incarceration of children and them later ending up in prison as adults.

“Prisons are full of these people. The whole thing was an escalation process and many of them are in prison to this day.”

She disputes the view that this was inevitable because of the children’s backgrounds or because they were inherently bad.

“There were many and varied reasons for them to go into care. I think people have this notion that these children went into care because they were bad. Even the children themselves, the adults thought they were in care because they were bad. I met one man in prison who was quite convinced he was a criminal as a child, [he thought] that’s why he was taken into care - so he became a criminal as a personal choice. When he got his file he found, my goodness, he wasn’t in care because of anything to do with his behaviour. It was just to do with the family dynamic going on at the time. All his life he thought he was a really bad person.”

Judge Henwood recommended in her final report last year that the government needed to acknowledge the “need for accountability in the social services sector by designing and implementing an independent body (such as the IPCA) to resolve historic and current complaints to hold the sector to account.”

In Tolley’s response to the CLAS report recently she says of this recommendation that the “report summarises people’s perspectives of their care experience and usefully reflects on particular points in time when people were impacted by the practices of the day.” 

She doesn’t comment on whether these “practices of the day” included the sexual, physical and psychological abuse documented in the CLAS report and that were central to victims’ accounts of their “care experience”.

Tolley goes on to say that Cabinet has approved “a new operating model”.  She does not say whether this includes Judge Henwood’s recommendation of an independent body. In fact, this recommendation is not addressed at all.

Tolley declined to be interviewed.

Records of abuse redacted, destroyed by MSD

Sonja Cooper represents historic abuse claimants.

Sonja Cooper represents historic abuse claimants. Photo: RNZ / Aaron Smale

When you walk into the office of Sonja Cooper – who represents historical abuse claimants - you’re confronted with a labyrinth of shelves filled with folders. 

McLaughlin’s file is in here somewhere. And Keith’s. Their stories are repeated, with grim variations, on every shelf.

On closer inspection the folders have countless names followed by ‘versus the Attorney-General’. These are the cases of hundreds of people who claim to have been abused in state care and are taking legal action against the Crown, represented by the Attorney-General Chris Finlayson.

Cooper herself is a whirlwind. Ask her any question about the cases or the history of the legal challenges and prepare yourself for a torrent. If you ask if she has a document she mentioned, she will say “of course” incredulously and scurry into the labyrinth, pull a box off a shelf, riffle through a folder, dig out the said document and point to the relevant paragraph with the exact words. 

Essentially, she is going after the department on behalf of her clients. But the process is totally determined by government agencies.

In 2008 legal aid began to be withdrawn for 800 claimants. Cooper challenged this through the courts, but racked up considerable costs not knowing if they would be paid, before a court decision found in her favour.

But she says it is indicative of the legal tactics that have characterised the government’s behaviour from the start, including denying state liability. In a test case in 2002 about state liability she won on the facts but lost on the Limitation Act and causation.

In some cases the court would accept the facts but they would still lose because too much time had passed or because they had failed to prove causation.

Cooper says the errors Finlayson refers to in his letter to Noonan would have been negligible because there had been some rigorous examination of the report, both by herself and MSD.

Although they had differing views on the facts, they were largely in agreement on what those facts were.

But she says they have fundamentally differing starting points.  

“The reality is they have always said they need to take into account the interests of former and current staff members.

“Impartiality and independence are one and the same thing really. Right from the outset of this process, as soon as we started hitting roadblocks we raised the issue about its lack of independence and its lack of impartiality. Right throughout we have said there needed to be an independent process that we could at least resort to if this one failed.

“The courts have not been accessible. In fact the courts have put up massive roadblocks for this group.”

Cooper says one of the reasons the ministry introduced an internal fast-track settlement process was to try and quell any calls for an independent process to resolve these claims.

“It suits them to have this coercive process run by the government department itself where it’s either ‘Take it or bye’. That’s pretty cost-effective, isn’t it? You take a pretty damaged and vulnerable group of clients, you don’t accept that the most serious abuse that they allege happened to them because there is nothing in the records.

“How often is abuse recorded in the records? We’ve had records recording abuse mysteriously vanish.”

The government’s website says when files are being redacted “we do not remove any information that might be evidence of possible abuse or neglect. We regard it as your legal right to have this information”.

This contradicts Cooper’s experience. She says if the file records abuse at all, the ministry will often redact large screeds. But because of the volume and the overlap of different cases, the redactions have often been inconsistent. What is blacked out in one version will be intact in another. What is usually blacked out is often directly relevant to the case, such as mentions of abuse.

“There was a staff member, a teacher at Hokio where there were quite serious allegations made in relation to him. When we ran the trial back in 2007 we’d got a huge amount of documents about this particular staff member. So we knew all about him.

“When we came to deal with another client’s case a few years ago they told us, ‘We don’t hold any documents about this staff member so we’re not accepting the allegations that are being made.’ I said, ‘Hang on a minute. We’ve got screeds of documents about this staff member that we got in discovery.’ Are they now saying all of this documentation has now mysteriously disappeared?”

Cooper says there has been wholesale destruction of staff files. This was verified in evidence given by an MSD staff member in a court case that refers to a batch of staff records being destroyed after 1999 – right about the time Cooper began litigation on behalf of those who had been in state care.

As a result, she says, they have had to rely on other types of evidence, such as independent accounts that corroborate abuse by the same person.

“Mostly abuse is not recorded, so then you rely on propensity or similar fact evidence. But what we’ve found out recently is that MSD gives absolutely no weight to propensity. A court would. An independent body would.

“That, to me, reflects what an unfair … inappropriate process this is.”

Government’s strategy is to mitigate risk - Sonja Cooper

Mention of Finlayson’s objection to the cost of setting up an independent body and Cooper snorts with laughter. She outlines a case of what she describes as a seriously damaged individual who, she says, the government is desperately trying to keep from progressing through the courts – spending nearly $1.7 million in the process.

She says the case hasn’t even got to square one and MSD doesn’t want it to. Because if it does get to trial it could set a precedent.

In its draft report, the Human Rights Commission points this out as a problem.

It quotes Dame Margaret Bazley: “The Crown’s strategy of addressing these claims through the courts places pressure on the courts and benefits lawyers rather than claimants. It also leaves the problem to fester – the claimants are likely to consider that the Crown has won on a legal technicality. They will be left feeling aggrieved and that the Crown is not prepared to treat them or their claims with respect and compassion.”

Cooper also believes the current Vulnerable Children legislation is being framed in response to the litigation from historical abuse. And not in a good way. She says it is moving towards third-party contractors running the institutions that will take in children removed from their families.

She believes this is intended to buffer the state from legal liability should something go wrong.

And it continues to go wrong.

Cooper’s other line of work is representing young people in the Youth Court. More than once in recent years she has seen a client disappear into a state institution, only to emerge years later with stories of ill-treatment at the hands of staff.

She believes the government’s whole strategy around both historical and ongoing abuse in state care is risk mitigation rather than facing up to it squarely. 

She cites a cabinet paper from Tolley, which lists some of the risks the backlog of claims – which is in the hundreds - poses for the government.

They include “fiscal risk”, “loss of confidence and trust in the process,” “the potential of a renewed call for a public enquiry into historical claims” and “an alternative process being called for either by the Courts or through public opinion and pressure”.

The paper also discusses how the government expects the number of claims to reduce as victims die out.

‘I just wish I had someone that could talk to me about it’

Kohitere Boy's Training Centre in Levin.

Kohitere Boy's Training Centre. Photo: RNZ / Aaron Smale

Asked what he hopes to achieve by taking legal action, Jimmy ponders for a moment.

“I hope they somehow regret what they did. I just want the welfare to know it would be good to have those staff members face some sort of disciplinary hearing.  Or at least be growled at. I don’t know how it works.

“I was hoping someone could help me with interviews and filling out forms. To help me to move on. Some sort of apology. I could do with a counsellor I could contact. I still get depressed. I cover my head with the blankets a lot of times. I just wish I had someone that could talk to me about it.

“I might be a bit better but even now I still get my withdrawals and I just need time out to think about things.”

Now in his mid-50s, Jimmy says he is only just beginning to find some respite from what happened to him in state care.

“That’s affected me right through all my adult life. It’s only been in the last four years that I’ve had to take charge of myself, because nobody else is going to do it.

“It’s just starting to get easier for me. Because I’m starting to realise that happened back there and I can change. But it took a lot of years to get out of the psychological thing of not being afraid of authority, going out, filling out forms, meeting people.

“They’re not going to put handcuffs on you.”

After years of struggling with alcohol and literacy he finally got his licence for the first time a couple of years ago.

“About two years ago I was driving down the road humming to myself. I actually said to myself, it’s the first time I’d felt happy. I had my licence and I realised, ‘hey, you’re singing and humming to yourself’.

“It was sort of like a shock to me. I think it was because I was used to watching out for cops when I was driving. I was happy for the first time. I’d never sort of had that experience.”

And he now has a strong motivation to stay on track.

“I’ve got to keep myself out of trouble so I can look after my mother.”

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