Thousands of former state care children have reported abuse through the Ministry of Social Development's historic abuse claims process. How fair is it when those responsible for the alleged abuse are also in charge of investigating it? Teuila Fuatai reports.

Sixty-three year old Anthony has come a long way from the angry, quick-tempered individual who dominated much of his adult years. Being in regular contact with his children and having a stable, loving marriage is not something he takes lightly. The father-of-two is a survivor of New Zealand's state care system, and among the more than 2000 former state care children who have reported abuse and neglect that occurred during their childhood to the Ministry of Social Development.

Like many state abuse victims, the events of his formative years have had a profound effect on his development and behaviour. That lifelong impact for Anthony and other victims is summarised in a Ministry report from last year:

"Many of them [abuse claimants] are income poor, have health or mental health difficulties, difficulties finding or retaining work, are transient and some have been in prison at some point since leaving state care.

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"For many, the difficulties or challenges they are currently facing can be directly or at least partially connected to their experiences as a child in state care."

Anthony acknowledges that dealing with the trauma from his childhood is an ongoing process. As part of that, he decided to disclose what happened to him via the Ministry's historic abuse claims process in 2010.

"What I really wanted was that they [the Ministry] listen to what happened and they accept that it happened and...some sort of compensation and an apology," Anthony said.

He knew it would be difficult. However, he never anticipated it would take more than nine years to sort through things. Anthony's claim's case, which is yet to be resolved, is one of three reviewed by the Herald while looking into the Ministry's internal historic abuse claims process.

Like the other two cases, delays with Anthony's claim have largely been caused by the Ministry - including the department taking 11 months to release his information. Other significant and common hold-ups across the three cases include multiple-year waiting periods for settlement offers from the Ministry, and incomplete information releases.

According to Cooper Legal, New Zealand's leading law firm in historic abuse cases, delays of this nature are not uncommon. With 1300 state abuse victims on its books, the law firm says a five-year claims process is the "sad reality" for clients at the moment. That information is backed up by the Ministry, which quotes an average claim resolution time of nearly four years.

In Anthony's case, things initially seemed to be going well. A transcript from his 2010 interview with the Ministry's historic claims team focused on the period of Anthony's life when he was first placed under the guardianship of the then Department of Social Welfare, about age 14. Prior to that, he had been living, intermittently, in a Salvation Army boys' home since age three.

Incidents of physical, psychological and sexual abuse are recounted during the interview. Critically, some of the abuse Anthony experienced also resulted in two of his adult, male abusers charged for molestation. One of the men was found guilty and imprisoned. The second was let off, and later charged for separate, unrelated allegations of abuse. A wider look at his claims file also shows serious and sustained periods of abuse during his time with the Salvation Army.

"I was angry, so angry, for a very long time," he said.

Relationships suffered, and often his temper got the better of him. He touches on the difficulties it posed for his loved ones, noting he was out of his daughter's life for "a very long time". One particularly nasty incident led to a court case and conviction of assault. While it was a low-point, it also resulted in him working with a counsellor - a significant development in his life.

"Through this, I got some very, very good counselling," Anthony said. "I still have my issues. And I still can get quite upset about things, but I have learnt how to deal with the past things that have happened."

The response from the Ministry after he came forward took a year, and was both disappointing and "demeaning", he says. In its assessment of his care, it found "there were no failures of social work practice".

Anthony: "As far as they were concerned, their duty of care was fine and they hadn't done anything wrong... which stunned me. There was a court case and someone got charged [over the abuse], so it wasn't that there wasn't any accountability that something happened".

To get help with his claim, he contacted Cooper Legal. Eventually, he also lodged historic abuse claims with the Salvation Army and the Ministry of Health. Both those claims processes were separate and unrelated to the Ministry of  Social Development. His Ministry of Health claim was for abuse inflicted when Anthony was placed at a psychiatric hospital at the direction of the Department of Social Welfare. However, unlike his current, ongoing claims process with the Social Development Ministry, both the Salvation Army and Ministry of Health offered an apology and compensation within three months. Anthony accepted both offers, in 2012 and 2013, respectively.

The history of Anthony's Ministry of Social Development offers a different story.  After Cooper Legal got involved, it took nearly a year for the Ministry to release a copy of Anthony's records to the law firm. A settlement offer was then made by the law firm on his behalf in 2014. Following this, Anthony waited nearly five years for the Ministry to decline it, and send its own offer. Dated October 2018, the Ministry's offer maintained there were no problems with the social work in his care. Interestingly, while its stance on his claim is unchanged, it proposed $2000 in compensation.

Anthony rejected that offer at the end of last year. A counter-offer, which identified $10,000 as appropriate compensation, and proposed the Ministry acknowledge the failures in his care, was made via Cooper Legal. The Ministry is yet to respond.

Anthony: "They [the Ministry] are very reluctant to accept any type of blame and to me that is a bug-bearer. It kind of gets under my skin a bit because they won't accept mistakes were made.

"They offered me compensation – but they didn't offer an apology. And to me that was totally wrong. I felt if they're going to offer compensation, there needs to be some kind of apology with it."

Rawiri: Twelve years and counting

Rawiri, who recently marked his 30th birthday, is the second claims case reviewed by the Herald. His history in the state care system shows horrific, sustained, physical, psychological and sexual abuse throughout most of his formative years. At age four, Child, Youth and Family services - the predecessor to Oranga Tamariki - took charge of his care. Over the next 13 years, he would stay in nearly all of New Zealand's youth residences and placements, including the notorious Waimokoia Residential School.

Importantly, Rawiri's treatment in the system has been documented over the years in his CYFs file. Examples include severe beatings, being forced to watch other children being beaten, sexual assault by males and females, and being hospitalised for a badly infected wound after carers delayed seeking treatment. While not all of the incidents Rawiri disclosed as part of his abuse claim are recorded in his CYFs file, notes from social workers show the department was aware of the high levels of abuse and trauma throughout his years in state care.

Now, in his 12th year of the Ministry's historic abuse claims process, Rawiri is becoming increasingly disillusioned. Since seeking help from Cooper Legal at age 18, he has continued to struggle with a serious drug addiction developed in his adolescent years. He has also been to prison for criminal offences. An excerpt from an interview with the law firm provides some insight into the challenges Rawiri and his young family deal with:

"Every time I get out of an institution, I don't know how to live normal. I struggle to find jobs because I don't know how. I struggle to form relationships with people because I can't trust them and I don't know how to act as someone's friend. Now I have kids, and although I feel I'm a good dad, I don't actually know how to be one. My first instinct is to act in violence if I think anyone's a threat to me and my kids or anyone's kids."

Rawiri's treatment in the system has led to struggles with a serious drug addiction and prison time for criminal offences. Photo / Getty Images
Rawiri's treatment in the system has led to struggles with a serious drug addiction and prison time for criminal offences. Photo / Getty Images

Particularly concerning has been the Ministry's timing around an offer of settlement it provided to Rawiri last year. Since late 2015, Rawiri had been waiting for the Ministry to fully investigate his abuse claim after deciding against entering a "fast track" assessment. The fast track assessment was used in 2015 and 2016 by the Ministry to clear a significant backlog of claims. While it took less time, it also offered claimants a less comprehensive settlement package. Because of this, Rawiri opted to wait for a full assessment.

However, after two more years of no progress in his claim, Rawiri decided in April last year to enquire about the fast track process he originally rejected. It then took less than two months for Crown Law to submit an offer on behalf of both the Ministry of Social Development and the Ministry of Education to him. The Ministry of Education was included because of the alleged abuse at Waimokoia Residential School.

The offer proposed $30,000 in compensation, which put Rawiri's abuse claim in 'Category three' of the six fast track compensation categories.The most serious abuse claims are assessed as category one. Dismayed at the Ministry's assessment of his claim, Rawiri declined the offer. He continues to wait for a full assessment and settlement offer.

Nina: Privacy Commissioner weighs in

Nina, a mother of five, turns 39 this year. Her claim's case was the third to be reviewed by the Herald. It concluded last year after more than six years in the Ministry process. Unlike Rawiri and Anthony's cases, delays in Nina's claim were not over disagreements about the abuse she reported while under state care. Instead, progress appeared to be bogged by delays in the release of her information from the Ministry. Eventually, Privacy Commissioner John Edwards became involved.

Nina's background in the system shows she was taken into state care about age 13, when CYFs was operating as the Children and Young Persons service (CYPs). In her CYPs file, significant problems and social work failures throughout her time under state care are recorded. Details include the department's decision to place Nina, twice, with an unapproved caregiver who had been flagged for allegations of sexual abuse. The man sexually and physically abused Nina and supplied her with drugs, alcohol and money. The department also failed to vet two other men Nina was placed with - both of whom it eventually acknowledged were inappropriate caregivers. Abuse Nina suffered while in institutional placements is also documented.

In 2012, Nina contacted Cooper Legal for assistance with her claim. Difficulties in trying to obtain her records from the Ministry resulted in a complaint to the Privacy Commissioner. An excerpt from a letter between Cooper Legal and Edwards, quoting Nina, illustrated the impact of the prolonged Ministry process:

"The delay in providing information...just felt like they still didn't care. My own children are involved with CYFs and it was difficult to deal with that as well as knowing MSD were taking months to do anything about my own claim. I took the claim to do better by my kids but the delay just made me feel ignored, which was distressing for me".

Nina was taken into state care around the age of 13. She was sexually and physically abused and supplied with drugs and alcohol. Photo / Getty Images
Nina was taken into state care around the age of 13. She was sexually and physically abused and supplied with drugs and alcohol. Photo / Getty Images

After investigating the complaint, Edwards found there had been an "undue delay" in releasing the information of Nina and five other state abuse claimants by the Ministry. This breached the Privacy Act. The cases also "highlighted concern with the Ministry's ability to respond to information requests which is clearly a systemic issue within the Ministry", Edwards stated. In 2015, the Ministry paid $5000 to Nina for the privacy breach.

It then took another three years for her abuse claim to be settled. The Ministry's offer, made in November last year, accepted much of her claim and proposed $60,000 in compensation.

Reflecting on the process, Nina said she initially believed lodging a claim could help in dealing with the abuse she experienced during her childhood.

"All this bullshit, the way that I was brought up, it all took it away from me," she said.

"It took everything I wanted to be away from me in my eyes because I wanted to recover and heal from all the stuff I went through, and it took me so long to do that."

Despite what she deemed to be realistic expectations of the Ministry from someone who went through the state care system, she still found its behaviour disappointing.

"I think the way the Ministry handles things is just terrible, absolutely terrible.

"I got told it would take two years and it took more than six years. I don't think they helped me get to where I am today. I think they've done everything to stop me from doing that.

Independence needed

Notably, the Ministry announced a "new operating model" for its claims process last month [APRIL]. While details showing an increase in resources and personnel are encouraging, substantive information around how claims are actually assessed and compensated has been withheld from the public.

Cooper Legal, which has complained to the Ombudsman over the missing information, said the Ministry's decision to withhold it makes it difficult to believe its statements around a more transparent and fairer process.

"There are some good things about the process – like options for a claimant to meet with Ministry officials, and potentially a faster process," Amanda Hill, partner at Cooper Legal said.

"But the continued lack of transparency and independence means we remain deeply concerned that it will be terribly unfair to claimants."

Further, changes which the Ministry said were supposed to have already occurred under the first raft of system revamps - introduced in November last year - have not flowed through to claimants, Hill said.

"The process has become slower and the Ministry has missed almost all deadlines it has
set, even self-imposed ones. The responses to claims that we have received have less detail and do not set out what parts of a claim the Ministry accepts – they are even less transparent than before. That makes it very hard for us to analyse the response and advise how fair it is for our clients. The offers also appear lower than offers made before 2015."

Overall, the law firm maintains a completely independent process, which does not rely on the Ministry investigating itself and allegations of abuse that occurred in its own system, is the only way forward.

MP Carmel Sepuloni has said the current system provides sufficient separation between those responsible for children in state care, and those investigating abuse claims. Photo / Mark Mitchell
MP Carmel Sepuloni has said the current system provides sufficient separation between those responsible for children in state care, and those investigating abuse claims. Photo / Mark Mitchell

When the topic was raised with Social Development minister Carmel Sepuloni, the West Auckland MP said the current system provided sufficient separation between those responsible for children in state care, and those who were investigating historic claims of abuse.

When Oranga Tamariki was formed in 2017, it took charge of child protection services, she said. That created a level of separation and independence between the agency responsible for delivering child protection services and the agency responsible for responding to historic claims of abuse, she said.

Sepuloni denied delays on the Ministry's end had been deliberate. She also highlighted changes in releasing claimant information, and said delays in that part of the claims process were "no longer the case".

"Our aim is to have the majority of personal information requests provided to the requestor within 90 days of the request. While personal records are often released within a month of a request, larger files - which can be several thousand pages - can take longer than this."

She did not directly answer whether taking five years to resolve a claim of abuse was satisfactory.

Meanwhile, hundreds like Anthony and Rawiri continue to wait on outcomes for their childhood claims of abuse. According to Ministry data, it had 1789 unresolved historic abuse claims at the end of last year.

*Pseudonyms have been used to protect the privacy of those involved