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Abuse in Care - Royal Commission of Inquiry

Abuse in Care - Royal Commission of Inquiry

This Royal Commission is an independent inquiry into abuse in state care and in the care of faith-based institutions in Aotearoa New Zealand.

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  • (English) He Purapura Ora, he Māra Tipu
  • Volume 1
  • 2.3 The Crown redress response
  • Result of the Crown strategy - Crown’s court successes deter prospective claimants
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Result of the Crown strategy - Crown’s court successes deter prospective claimants

Survivors had some early successes in the courts. The judge in Leoni McInroe’s case refused the Crown’s application to strike out her claims without a hearing, and in 2002 and 2003, two survivors established that the State was liable for abuse by their foster parents, and also that the limitation defence did not apply in their circumstances. The successes, however, ended there. The Crown’s litigation strategy produced a series of crushing defeats in 2007 and 2008. The claimants were unable to prove they had suffered some of the abuse alleged. And when the court found the claimants had, in fact, been abused in State care, it also found the State was not liable because of limitation and accident compensation legislation, and because the claimants could not prove their abuse in State care had caused them harm. The Crown was also successful in its applications for costs orders. In one case, the court held that a survivor had to pay costs to the Crown for bringing the case, and in other cases, the courts found the claimants would have been liable for costs if they had not been funded by legal aid. In those cases, the judge criticised the Legal Services Agency for funding the claims.

These decisions led the Legal Services Agency to re-examine its decision to grant legal aid to hundreds of other survivors. In 2008, it notified 1,151 people of its intention to withdraw their legal aid unless they could justify why they should continue to receive it and explain why their claims had sufficient “prospects of success”. About 200 claimants lost their legal aid, although about half had it reinstated after seeking statutory reviews or appeals, supplying more information to the agency or making fresh applications. This process placed a significant administrative burden on claimants and their lawyers, and greatly delayed their claims.

Overall, these defeats in the courts highlighted the difficulties survivors faced getting redress through the courts and had a considerable deterrent effect on other survivors considering litigation. Some survivors abandoned their claims after observing the gruelling process other survivors went through giving evidence and being subjected to cross-examination by the Crown, only to have a claim rejected on what seemed to be technicalities.

In addition, the Crown’s focus on managing litigation and limiting financial risk meant it focused only on responding to the individual claims brought and resisted a wider response. This minimised the problem and contributed to the invisibility of those unable to bring claims, such as many Deaf and disabled people.

For many survivors, the result is that the only practical option now available to them is the out-of-court claims processes developed by State agencies and administered and closely controlled by them.

 

Next: State agencies’ out-of-court claims processes

2.3 The Crown redress response
  • Background to the Crown’s approach
  • The mindset of the Crown
  • How the Crown responded
  • Result of the Crown strategy - Crown’s court successes deter prospective claimants
  • State agencies’ out-of-court claims processes
  • Problems with State agencies’ claims processes
  • Summary of findings

So far, over 900 survivors have shared their experience. Join them. Ā mohoa nei, neke atu i te 900 purapura ora kua kōrero mai i ō rātou haerenga. Hono mai.

We cannot make any findings, reach conclusions or make recommendations without hearing the voices of those who have the lived experience of state or faith-based care.

Share your experience Kōrerotia mai tō wheako
0800 222 727 contact@abuseincare.org.nz
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  • Mō te Kōmihana a te Karauna About the Royal Commission
    • What the Royal Commission is about
    • How it works
    • Te Tiriti o Waitangi
    • Te Taumata
    • Survivor Advisory Group
    • Terms of Reference
    • Working with Māori
    • Our people
    • Deaf community
    • Pacific community
  • Ā mātou uiui Our inquiries
    • Māori experiences
    • Pacific People's experiences
    • Disabled peoples experience
    • State and faith-based redress
    • State psychiatric care
    • Children's State residential care
    • Anglican Church
    • Catholic Church
  • Kauneketanga Our progress
    • Latest updates
    • Reports
    • News
    • Timeline
    • Document Library
  • Kia whai wāhi mai Get involved
    • Sharing your experience
    • Sharing your experience from prison
  • Mā ngā purapura ora For survivors
    • Getting help and support
    • Legal assistance
    • Questions and answers
    • Survivor stories

If you would like to share your experience or have any questions about being involved please call our Contact Centre on 0800 222 727 weekdays 8:30am to 4:30pm (NZT) excluding public holidays or email: contact@abuseincare.org.nz. Anyone taking part in an investigation will be offered wellbeing support.


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