The state was supposed to look after our nation's children, when their families could not. As has become abundantly clear, it has not always performed that role, and in many cases caused disastrous impacts for some of our most vulnerable citizens. And further, it's failed them again as they sought redress. Michael Neilson reports on the "brutal" and "broken" system.
Earl White's voice chokes up as he tries to explain how he feels.
He's just heard top, highly-paid Government officials, discuss over several weeks not only the sexual abuse he suffered as a child in state care, but why they "aggressively" fought for over a decade to avoid liability, avoid paying compensation, and avoid even offering an apology.
Meanwhile, White – whose real name is legally protected - is trapped in a poverty cycle, barely able to provide for his family, for his grandchildren.
His mind even returns to shoplifting, just to get by.
White, who is approaching 60, says the process of seeking redress for the abuse he suffered was a "nightmare" and had retraumatised him, and he didn't feel justice had been done.
"I don't call myself a survivor because I am still waiting to be rescued."
And he's far from alone.
Abuse of power
During the Abuse in Care Royal Commission of Inquiry's redress hearings, held in Auckland over the past two months, about a dozen survivors shared their stories of the sexual, physical, emotional and psychological abuse they experienced in state care - institutions that were supposed to look after them - and the trauma and lifelong impacts that followed.
The commission - which is investigating the abuse and neglect that happened to children, young people and vulnerable adults in care from 1950 to 1999 – has had nearly 2000 survivors register with them overall, with more coming forth every week.
But for many who shared their experiences, the process of seeking redress, including recognition, compensation and even an apology, was as bad as the abuse itself.
Leonie McInroe was misdiagnosed with schizophrenia as a teenager, and given electroconvulsive therapy and powerful antipsychotic drugs as punishment.
As Crown representatives were brought before the commission, McInroe, like the others, wanted answers.
In her case, she wanted to know why the man responsible, Dr Selwyn Leeks, has never been held to account, despite Crown agencies being aware of his malpractices since the 1970s.
She wanted to know why, when she started legal action in the early 1990s it took nine years of "emotional battering, abuse and bullying" to reach a settlement with the Crown over her maltreatment, despite it knowing what happened to her, as it did for many others.
Solicitor General Una Jagose, representing the Crown, told the commission she accepted the delays in McInroe's case "should not have happened", but she could not say why.
McInroe called Jagose's submission a "poor attempt of a performance".
"I find that completely shameful and highly disappointing, that still, on this day, the Crown Law Office is not accepting accountability for these claims," McInroe tells the Herald, having sat in the gallery to hear all three days of Jagose's evidence and cross-examination.
What did become apparent, is that after McInroe the Crown took a different approach to settling abuse claims.
With the number of claims from Lake Alice rapidly increasing, the Government accepted systemic failures at the facility, and instigated a multimillion-dollar settlement package for survivors, with apologies from the Prime Minister.
But Lake Alice and the acceptance of "systemic failure", would prove an exception to the rule.
And McInroe's "brutal" treatment as the first to test the Crown's liability would prove to be far from an isolated case.
Abuse in care
White was physically abused at Epuni Boys Home and later sexually abused by a cook while in state care at Hokio Beach School in the 1970s.
He started legal proceedings against the Crown in 1999, which refused his early settlement offers, even denying his claims of sexual abuse - despite knowing the staff member had been convicted in 1976 of similar offences at Hokio.
It took eight years for the "White trial" to come to court, what is now regarded as a "test case" for abuse in state care, and another four years before in 2011 he accepted an ex-gratia payment of $35,000 from the Ministry of Social Development, which did not accept responsibility.
While the judge accepted the abuse occurred, White lost due to the Crown claiming the statute of limitations defence, which means claimants needed to lodge a claim within six years of turning 20.
White said the Crown would have spent close to $2 million fighting his case.
Christchurch woman Joan Bellingham spoke of how she was subjected to electroconvulsive therapy more than 200 times over a 12-year period at Princess Margaret Hospital, for being a lesbian.
When she initially claimed ACC in the 1980s she was told the burns on her scalp were likely from cigarettes.
She made numerous attempts for recognition and redress over the years, including with lawyers, GPs and even local MPs.
Eventually she received a $4000 "wellness payment", $4250 towards her legal fees - which were much higher than that, and an apology.
But there came no admission of liability, and the settlement was required to be secret.
"The uncertainty with seeking redress was almost as bad as the abuse. My hope is that no one has to go through what I went through."
Crown actions "disgusting and unforgivable"
The commission also heard from Keith Wiffin, who was sexually assaulted by house master Alan Moncreif-Wright at Epuni Boys' Home in Lower Hutt in the early 1970s, aged 11.
Soon after launching his claim, in November 2007 Wiffin, through his counsel Cooper Legal, sought all information held by the ministry about Moncreif-Wright.
Despite the ministry being advised by Crown Law about Moncreif-Wright's prior convictions for sex offences at Epuni, those were not disclosed to Wiffin.
Moncreif-Wright was eventually jailed on multiple charges of sexual assault, including against Wiffin. He has since died.
MSD's historic claims team lead Garth Young, who dealt with Wiffin's case at the time, told the commission he could not explain why that information was withheld.
"I accept it may appear I or the ministry was not wanting to disclose that fact, but that was certainly not my intention."
He had "no clear recall" about responding to the information request, and there were "no helpful file notes".
He was also asked about White's case, during which MSD hired a private investigator to gather evidence.
They approached White's sister and daughter, which he described as "disgusting and unforgivable".
Young said he was aware of this occurring, but was not aware of how the decision came about.
Commission lead counsel Hannah Janes also questioned Young about their poor record-keeping and even destruction of records, some of which he'd spoken about in his affidavit during the White trial.
In October 1999, when Child Youth and Family became a department in its own right, many old staff files were destroyed, Young had said.
Subsequently in the White case, of the 28 staff members named by the plaintiffs, files could be found for only six of them.
"My only comment is that I don't know the basis for which they were destroyed," Young told the commission.
Crown representatives repeatedly expressed apologies for these specific situations, which they were unable to explain, and acknowledged the hurt and suffering they inflicted.
But there were never any acknowledgements of systemic issues, merely "bad apples", as they pointed out the vast majority of claims had been settled more amicably.
"I don't want to sound insincere, about the apology Garth made to me," Wiffin tells the Herald.
"But it would mean a lot more if they acknowledged the systemic failures that led to the abuse in the first place."
Wiffin is talking about "cultures" of abuse that existed in the boys' homes, among other state care institutions.
One of those was the "kingpin" system, whereby older boys would physically abuse the new and younger ones, encouraged by staff.
Others included regular use of solitary confinement as punishment, and even initiation.
Then there were the abusive staff themselves, with countless victims, who, Wiffin believes, were allowed to move between locations.
"They have been fond over the years saying it's just a few bad apples, but that is not the case," Wiffin said.
"We were there, the tree was rotten."
What really hurts Wiffin too, is that Crown officials advised its own staff the abuse he claimed had likely occurred, yet they still fought him.
"Against their own advice, and knowing the perpetrator, a paedophile with criminal convictions, was in the same institution as I, they still dismissed me."
Litigation a "brutal" process
Jagose acknowledged to the commission the Crown, as litigator, hasn't always been "survivor-focused".
Jagose, who has worked in Crown Law for 18 years, acknowledged how for survivors of "traumatic time in state care" the litigation processes could seem "very harsh and cold".
Some had criticised it as a "Crown tactics", Jagose said.
"I would just say litigation steps," she said.
These included the right for the Crown to defend against accusations, for justice to be seen to be done, and to determine liability. They were also spending public money and needed to act responsibly.
This process of defending claims was often not to deny events had occurred, however Jagose accepted it could appear this way to survivors.
"The brutality of the litigation really shines through this," commission chairwoman Coral Shaw said, to which Jagose said she agreed.
Jagose said she acknowledged the "pain and the frustration" of survivors seeking redress, and how the response could be seen as the "Crown ducking for cover".
However, she denied there had been any intention to avoid responsibility or exhaust plaintiffs.
However, an email shown to the commission, from White's trial in 2007, suggested something different.
The November 2006 email was written by Chris Mathieson, a senior Crown Law lawyer, to an external lawyer. It read: "the lives of the two plaintiffs need to be thoroughly sifted through".
"While our first approach will probably be that the witnesses are simply lying, a second could well be that while they might genuinely believe that these events did happen they are nonetheless false (or at least highly exaggerated and distorted)."
She was also challenged about why Crown Law opposed name suppression in White's trial, even though White was a victim of sexual abuse.
"If what is meant is, let's see if we an stop people who are abused in care coming forward, that is appalling," Jagose said.
Over the past decade Crown Law had changed the way it responded to abuse claims, the vast majority of which had been settled without going to court, Jagose said.
"We are at a point litigation is ill-suited to deliver survivors what want.
"It's very adversarial, not inquisitorial, a contest between two parties who can't agree."
The litigation process as also "murky" to people outside it and challenging, she said.
MSD had set up a Historic Claims Team, and various processes had been instigated to "fast-track" claims.
MSD deputy chief executive policy Simon MacPherson revealed to the commission in the 12 years to June 2019, the ministry had spent about $77m resolving about 1800 historic claims.
But just $30m of this had gone to survivors.
The lion's share, about $40m, covered operational costs and external legal fees, including to payments to Crown Law.
This included a case in 2017, where the Government spent over a million dollars fighting a case it eventually lost, paying out $340,000 to four separate claimants and $369,000 in legal fees.
Then-Labour Party deputy leader Jacinda Ardern called the expense and delays extraordinary and questioned whether it was a just or wise use of taxpayer money.
"The question I have is: Given the huge amount spent to stop cases going before the court, is the Crown being a responsible litigant?" she asked at the time.
The number of claims MSD received had ramped up substantially, with just six recorded in 2003, rising to 4177 in total as of June this year.
They were now receiving about 40 new claims a month.
The majority of claimants, 54 per cent, were Māori. Pākehā accounted for about 45 per cent and 4 per cent were recorded as Pasifika.
But while the most prolific, MSD was just one of many Crown agencies where abuse occurred, including institutions run by the Ministry of Education and Ministry of Health.
Call for independent process
In their evidence, Cooper Legal called for an independent claims tribunal to be established.
Lawyer Amanda Hill told the Herald this was even more evident after hearing evidence from the Crown, with different Government departments all operating differently.
"The abuser cannot be the saviour. The same entity that caused you harm cannot be the one to properly make it right."
Sonja Cooper told the commission her firm had settled 1100 claims, and had 1250 further clients with 1400 open files, which is growing.
These claimants ranged in age from 18 to 80.
Hill said despite the clear evidence, it was disappointing there was no acceptance of systemic issues.
"There has clearly been a systemic failure of response to what were systemic failures that led to the abuse in the first place."
In their evidence Cooper Legal called the redress process "broken", and for New Zealand to abolish limitation provisions in child abuse cases - covering physical, sexual and psychological - and apply to all historic cases. This had been done in Scotland and some Australian states.
Other issues included how ACC was factored into claims, which prevented survivors from seeking compensation through the courts.
Hill said another major issue was how despite a hugely disproportionate amount of survivors being Māori, there was no meaningful engagement with enacting the principles of Te Tiriti o Waitangi.
"There is nothing in the process that acknowledges a loss of culture, language, the inability of the child to go to kōhanga reo, the separation from iwi and hapū.
"So not only is the process lacking, but the response to harm is lacking."
Dr Stephen Winter, a professor at the University of Auckland, has researched redress schemes for similar abuse in overseas jurisdictions.
As of March last year, MSD payments averaged just over $19,000 each, with a top payment of $80,000.
This paled in comparison to Ireland, where a similar process paid survivors on average just over $108,000, to a maximum of $522,000.
In Australia, survivors were receiving substantially more; the National Redress Scheme pays out on average $80,466 per claim.
Winter told the Herald much of the discrepancies were due to ACC, which prevents claimants from suing for compensation in court.
These jurisdictions also all had redress schemes independent of the Government, something Winter said was "absolutely" needed here.
"In Canada, Ireland and Australia there was a political decision, and law passed to create a process, which then got funding.
"We have never had that. The process simply emerged out of a reaction to the cases, and so initially they were fought in court, but they were never going to be successful due to the Limitations Act, and the quality of the historical evidence."
It was case-by-case before the Crown Litigation Strategy established a framework, but again it was very limited, only allowing for settlements to be negotiated but providing no clarity for claimants.
There was also wild variance between departments. The Lake Alice process, where systemic issues were accepted, paid out on average about $70,000, while it was far lower outside that process.
In this sense, Winter said it was no surprise the actions taken by Crown Law to fight the cases, knowing it could "win".
They were doing their jobs as lawyers, but the pain it further inflicted highlighted why there needed to be an independent process.
Winter said it could be similar to the Ombudsman, and he believed it was "absolutely appropriate" for the Royal Commission to recommend this occur, and that they review how past cases had been handled also.
"It just needs courageous political leadership."
Rosslyn Noonan, director of the New Zealand Centre for Human Rights Law, Policy and Practice, sat in on each day of the hearings.
Along with a new process, there needed to be proper recognition and apology from the highest level, she said.
"These people have been failed at every point. It is not because of a 'few bad apples'.
"There needs to be a proper apology, and we as society all need to take responsibility. The Mongrel Mob, Black Power came out of the boys' homes, our mental health and social welfare crises, came out of this. Those things did not just happen."
Unable to move on without closure
Aged 15, White was discharged from the state, with no support.
After an abusive childhood and teenage years - much of it in state care - he struggled to find employment, turned to crime, and became addicted to drugs and alcohol - a cycle that would continue over many years and include many stints in jail.
White agreed there should be an independent process, genuine apology and fair compensation offered - something he was still waiting for.
Hearing his case spoken about at length again by highly-paid lawyers was painful, he told the Herald.
"I was really hurt, disgusted by their answers, their avoiding questions.
"I'd liked for them to have acknowledged what they did, offered a chance to discuss it further with me, but they just ignored the pain they caused."
"I want the Prime Minister to apologise, to the thousands of children they harmed, including me and my brother, and to offer some decent compensation so we can get on with our lives.
"But they are not interested in fixing the past. They destroyed any chance I ever had."
The inquiry
• The Abuse in Care Royal Commission of Inquiry is investigating the abuse and neglect that happened to children, young people and vulnerable adults in care from 1950 to 1999. It may also consider experiences of abuse or neglect outside these dates.
• As of November 2277 people had registered with the Royal Commission, of which 1930 were defined as survivors. The others are made up of survivor advocates and family members of survivors. The commissioners have also held 578 private sessions.
• The State Redress Hearings ran from September to November. The first part focused on the experiences of survivors in seeking redress for abuse in state care. The second involved Crown agencies responding to survivors' evidence and outlining past and current policies and processes.
• The Royal Commission is conducting specific investigations into a range of other areas, including one focused on Māori - who have made up over half of those taken into state care, Catholic and Anglican churches, people with disabilities and those in psychiatric care.
• The next public hearing will focus on redress for those in faith-based care, and start on November 30. A second stage will start in March next year, followed by Abuse in State children's residential care in April and one Abuse in State psychiatric care, specifically Lake Alice, in June.
• After completing its investigations, the Royal Commission will make recommendations to the Governor-General on how New Zealand can better care for children, young people and vulnerable adults.
Where to get help:
• 0800 543 354 (0800 LIFELINE) or free text 4357 (HELP) (available 24/7)
• https://www.lifeline.org.nz/services/suicide-crisis-helpline
• YOUTHLINE: 0800 376 633
• NEED TO TALK? Free call or text 1737 (available 24/7)
• KIDSLINE: 0800 543 754 (available 24/7)
• WHATSUP: 0800 942 8787 (1pm to 11pm)
• DEPRESSION HELPLINE: 0800 111 757 or TEXT 4202
• NATIONAL ANXIETY 24 HR HELPLINE: 0800 269 4389
If it is an emergency and you feel like you or someone else is at risk, call 111.
