43. Part 1 of this report sets out the Inquiry’s core guiding human rights themes:

a) dignity
b) universality
c) self-determination, including for Indigenous peoples
d) equality and non-discrimination
e) indivisibility
f) measures of protection and assistance for certain groups
g) protection of the cultures, religions and languages of minorities
h) participation in decision-making
i) dynamism and the rule of law
j) accountability and redress.

44. In this chapter the Inquiry considers each of these themes in turn.

Mana
Dignity

Ngā takahitanga nui, taumaha hoki ki te mana tangata
Widespread and serious breaches of human dignity

45. In Part 1 of this report, the Inquiry referred to dignity having at least five aspects. These included the banning of all types of inhuman treatment, humiliation, or degradation, the protection of bodily and mental integrity, and ensuring the conditions for each person’s self-realisation. They also included recognition that the protection of personal dignity may require the protection of group identity and culture and does require creating the conditions to ensure that each person can have their essential needs met.

46. The abuse and neglect of children, young people and adults in care is fundamentally inconsistent with the preservation and promotion of their human dignity. All abuse and neglect is unacceptable and some of the abuse and neglect recorded in the Inquiry’s findings is abhorrent. As demonstrated by reactions to the Inquiry’s hearings and reports, the people of Aotearoa New Zealand have been shocked by the accounts of survivors. While the number of children, young people and adults in care, that were abused and neglected in State and faith-based care cannot be precisely determined, the available evidence backed by survivor accounts demonstrate that thousands were harmed.[20]

47. There were widespread and serious breaches of the human dignity of people in care. The Inquiry summarises below acknowledgements and apologies by the Government and faith-based institutions in relation to abuse and neglect in care, as well as referring to criminal convictions for some perpetrators of abuse. The Inquiry also highlights, by way of example, particular types of abuse and neglect which the Inquiry considers to have breached survivors’ dignity.

Ngā whakamana, whakapāha hoki mai i te Kāwanatanga me ngā pūnaha taurimaā-whakapono
Acknowledgements and apologies by State and faith-based institutions

48. The State has acknowledged that physical, emotional, and sexual abuse, and neglect, including cultural neglect, occurred in its settings. Oranga Tamariki Chief Executive Chappie Te Kani agreed that sexual abuse in social welfare settings should be considered as a systemic problem given the amount of abuse reported.[21] Sexual abuse occurred in most care settings and some survivors were sexually abused for many years while they were in care.

49. The Ministry of Health acknowledged that much of the treatment provided in psychiatric and psychopaedic institutions would now be considered unacceptable and would constitute abuse.[22]

50. A range of faith-based institutions apologised for the abuse committed under their care, including very serious abuse that occurred at Marylands School and the Hebron Trust in Ōtautahi Christchurch.[23]

Ngā whiu taihara mō ētahi tāngata hara
Criminal convictions for some perpetrators

51. Some perpetrators were criminally convicted for the abuse they committed, including convictions for very serious offending at institutions such as Marylands School[24] in Ōtautahi Christchurch and Dilworth School in Tāmaki Makaurau Auckland.[25]

Te haupatu me ngā taikaha nui
Physical violence, including serious violence

52. Many survivors suffered serious physical violence while in care across a range of settings, and in some settings, this violence was commonplace. For much of the Inquiry period, reasonable corporal punishment by teachers, for example, was legal. Schoolmasters were “justified in using force by way of correction towards any child or pupil under [their] care, if the force used is reasonable in the circumstances”.[26]

53. Corporal punishment became unlawful in schools from 23 July 1990,[27] but it was legal for parents and guardians until 2007.[28] Before then, section 59 of the Crimes Act 1961 provided that every parent of a child and every person in the place of the parent of a child was “justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances”. However, specific prohibitions were in place in certain settings. For example, clause 22 of the Children and Young Persons (Residential Care) Regulations 1986 prohibited staff from using corporal punishment in settings to which the Regulations applied.[29]

54. However, the Inquiry heard of many incidents of physical violence that went beyond reasonable force, and many instances where survivors were inadequately protected against physical violence from staff and peers.

Te whakataratahinga
Solitary confinement

55. Children, young people and adults in care were placed in solitary confinement, which the Inquiry defines as confinement for more than 22 hours in one 24-hour period without meaningful human contact, as defined in Rule 44 of the United Nations Standard Minimum Rules for the Treatment of Prisoners that were adopted in 2015. While the rules apply to adult prisoners and the definition in Rule 44 did not apply during the Inquiry period, the Inquiry considers it to be a useful definition because there does not appear to be any universally applicable definition to the care settings within scope during the Inquiry period.[30]

56. As detailed in Parts 4 and 5 of this report, the conditions in some settings in which solitary confinement occurred (including but not limited to ‘secure care’) were inconsistent with the need to maintain the mental integrity of those in care, and their dignity more generally. That included where people in solitary confinement rooms had no or very limited access to toilets or baths, or where the rooms were otherwise unhygienic, where people were deprived of food and water, and where the rooms were dark, cold or very hot. It also included where people had nothing to do while they were in solitary.

57. Oranga Tamariki recognised that conditions in some of the secure units in social welfare residences, particularly children’s homes, were inhuman. Solitary confinement conditions in disability and mental health settings were inconsistent with the need to maintain the dignity of those in care.

58. Any person in care and in solitary confinement is highly vulnerable, and there was an obvious risk of abuse occurring in solitary confinement. Multiple survivors suffered serious abuse while they were in solitary confinement, including rape by staff and peers. Protections against abuse by staff and peers for those in solitary confinement, to the extent there were any, were inadequate.

59. Some survivors were subjected to lengthy periods of solitary confinement. Where those periods of solitary confinement were imposed as punishment, they were inconsistent with human dignity. This was particularly so when the conditions in solitary confinement were poor, and where children, young people and adults in care subject to solitary confinement, were deprived of access to education or other activities. Even taking into account differing understandings about solitary confinement over the Inquiry period, those in charge should have understood that putting children, young people and adults in care in solitary confinement for long periods as a disciplinary measure was wrong (note that the Residential Social Workers Manual 1975 referred to the possibility of using “secure facilities as punishment” in “certain cases of absconding or serious and persistent misbehaviour”).[32]

60. From 1986 confinement of any duration for the purposes of punishment in children’s residences was not permitted.[33] From December 1990, solitary confinement as a disciplinary measure for detained children and young people under 18 years of age breached the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.[34]

61. The routine use of solitary confinement on arrival in some settings, such as Epuni Boys' Home in Te Awa Kairangi ki Tai Lower Hutt, Kingslea Girls’ Home in Ōtautahi Christchurch and Ōwairaka Boys’ Home in Tāmaki Makaurau Auckland was humiliating and degrading and therefore inconsistent with their human right to be treated with dignity. It also breached the Residential Social Workers Manual 1975, which stated that secure facilities could be used directly on admission where “elements of an emergency or disturbance or difficult behaviour” were involved, but that “[u]nder no circumstances is it an acceptable procedure for all new admissions to be admitted direct to secure facilities,”[35] and was apparently inconsistent with the regulatory framework in place subsequently for residences.[36]

62. While solitary confinement might have been occasionally justified by health and safety reasons or the risk of running away, it should only have occurred after all reasonable alternatives had been considered. Once imposed, everything possible should have been done to ensure that any period of confinement remained limited, and that the conditions of detention should have been consistent with human dignity.

Ngā matea tika kāore i tutuki
Essential needs not met

63. Conditions in some care settings did not meet appropriate minimums, even taking into account differing care standards that may have applied in the past. The Inquiry heard multiple accounts of children, young people and adults in care not having appropriate access to healthcare and not otherwise having their essential needs met. This included survivors who were at Whakapakari on Aotea Great Barrier Island living in tents for up to six months, hungry, cold and without access to basic health care or basic hygiene. It also included disabled survivors not being properly cared for, including in relation to basic hygiene, nutrition and dental care.

He mātauranga takarepa, kore mātauranga rānei
Inadequate or no education

64. Many survivors left care without an adequate education and an understanding that they were a deserving member of society. This compounded the disadvantage caused by abuse and other forms of neglect in care.

65. Some survivors received no or only a limited education while they were in care. These included disabled survivors in care for very long periods at institutions such as the Templeton Centre, near Ōtautahi Christchurch, and the Kimberley Centre in Taitoko Levin, some survivors of special residential schools, and survivors of institutions that cared for children and young people such as Hokio Beach School, located near Taitoko Levin, Kohitere Boys’ Training Centre in Taitoko Levin, and Whakapakari on Aotea Great Barrier Island. Some survivors who were in solitary confinement received no education during those periods, some of which were extended; the focus was on manual work rather than education.

Te whakamania, te ūnga me ētahi atu momo tūkino
Verbal and other abuse, and targeted abuse

66. Survivors were often subjected to verbal and other psychological abuse and this was highly destructive, particularly when survivors were regularly denigrated by the people who were supposed to be caring from them, or when carers allowed or encouraged the abuse of survivors by others. Survivors were also subjected in some cases to highly abusive treatment such as being made to eat outside and to sleep outside with animals. In some cases, such as at Marylands School in Ōtautahi Christchurch, particularly vulnerable children including disabled children were targeted for abuse.

Tukupū
Universality

67. People in care should have had their fundamental human rights observed and Aotearoa New Zealand should have had in place effective mechanisms to ensure those rights were respected, protected and fulfilled. These mechanisms were either not in place or were inadequate.

Tino rangatiratanga
Māori self-determination

68. Māori were disproportionately represented in care. The care provided to tamariki, rangatahi and pakeke Māori in care was largely determined by Pākehā authorities rather than Māori authorities. It has largely been for Pākehā rather than Māori authorities to decide whether or not abuse has occurred, if so, what the responses to that abuse should be, and what should be done to prevent further abuse.

69. The Government prevented Māori from assuming their role in caring for tamariki, rangatahi and pakeke Māori. The State has acknowledged that Māori solutions and perspectives have historically been ignored across the care and protection system (that is, the system providing care for children and young people who came under relevant child welfare law).[37]

70. Respect for te Tiriti o Waitangi rights including tino rangatiratanga, and Māori self-determination rights, requires a different approach. The Inquiry sets out what that approach should be in its recommendations in Part 9 of this report.

Te manarite me te kore whakatoihara
Equality and non-discrimination

71. Tamariki, rangatahi and pakeke Māori and Pacific children, young people and adults in care experienced racial abuse while they were in care as well as incidents of differential treatment because of their colour or ethnicity. The State has accepted in social welfare settings that “structural racism is a feature of the care and protection system which has had adverse effects for tamariki Māori, whānau, hapū and iwi”.[38]

72. Deaf and disabled people also experienced verbal abuse related to being Deaf or disabled. Lack of accessibility to information, communication assistance and oralism contributed to abuse and neglect. Many were not allowed to live independently and were not included in their local communities. Disabled people in care were not generally seen as having equal rights to other members of the community. The care they received, including their education, was negatively affected, in some cases significantly so, by discrimination. The lack of recognition of disabled peoples’ rights resulted in an absence of the support and accommodations needed.

73. These points are discussed further in the case studies into the Kimberley Centre, Out of Sight, Out of Mind, and Van Asch College and Kelston School for the Deaf, Our Hands Were Tied.

Wāhikore
Indivisibility

74. This principle refers to the need for civil and political rights (that is, the right not to be subjected to degrading treatment or punishment and the right to security of the person) and economic, social and cultural rights (that is, the right to education and the right to take part in cultural life) to be equally protected. Both sets of rights were insufficiently protected.

Ngā whakaritenga tiaki, āwhina hoki
Measures of protection and assistance

75. For a long time, Aotearoa New Zealand has recognised that children and young people are vulnerable and require special protection and assistance. The same applies to Deaf, disabled people, and people experiencing mental distress. Aotearoa New Zealand has also recognised the importance of the family, and the need to protect the family.

76. Despite this, the Inquiry heard of numerous cases where children, young people and Deaf, disabled people, and people experiencing mental distress, were abused and neglected in care. Rather than having a heightened level of protection as their status required, they were insufficiently protected.

77. Also, while some children and young people could not always remain with their whānau, Parts 4 and 5 of this report discuss survivor accounts where whānau, hapū and iwi connections were unnecessarily limited or severed entirely. At the Inquiry’s State Institutional Response Hearing, Oranga Tamariki Chief Executive Chappie Te Kani stated:

“I acknowledge that the care and protection system between 1950 and 1999 did not have the legislative or policy settings to ensure sufficient emphasis was put on considering alternatives before placing children in State care. This included not always providing support to families in need and not always working with extended family, whānau, hapū and iwi to support them to care for their tamariki safely and choosing to place some tamariki with non-kin caregivers rather than exploring family options.”[39]

78. Wherever possible, these and other family connections should have been maintained. This includes not only connections between survivors and their parents but also survivors and their siblings.

79. Some mothers were ‘forced’ into offering their children for adoption, leading to life-long suffering. These adoptions were contrary to the mother’s dignity and the need to protect the family. They were also inconsistent with the right of the child adopted to, where possible, grow up under their parent’s care and responsibility.[40]

Te tiaki i ngā ahurea, ngā whakapono me ngā reo o te tokoiti
Protection of the cultures, religions and languages of minorities

80. Care was largely monocultural during most of the Inquiry’s reporting period. Rather than being protected, te reo, tikanga and mātauranga Māori were prohibited in some settings. Other aspects of Māori culture were suppressed. While there were exceptions to this approach, such as Māori faith-based boarding schools, there was little to no access to Māori culture or mātauranga Māori in care settings.

81. There was generally no importance placed on the cultures or languages of Pacific Peoples. Pacific survivors who were not told while they were in care that they had Pacific heritage or who did not have that heritage recorded and later discovered it, felt that they had lost a part of themselves.

82. Deaf people who attended residential special schools were prohibited from using Sign Language.[41] At the Inquiry’s State Institutional Response Hearing, Oranga Tamariki Chief Executive Chappie Te Kani acknowledged that many Deaf children “were denied their language and their place in their community”.[42]

83. Often ethnicity was not recorded at all or recording practices were poor. Without knowing the ethnicity of a person in care, it is difficult to see how any steps could have been taken to protect that individual’s culture or language.

Te whai wāhi ki ngā whakatau
Participation in decision making

84. Attitudes and understandings both in Aotearoa New Zealand and internationally about the rights of people in care to participate in decisions affecting them changed during the Inquiry period and the nature and extent of participatory rights now are significantly different.

85. The Inquiry demonstrates the importance of people in care having their right to autonomy respected and having strong rights to participate in decisions affecting them. These include the right to information relevant to those decisions and otherwise to give informed consent, and the right to support where required so that people can make their own decisions.

86. Collective organisations of people directly affected by care systems, such as hapū, iwi or disabled people’s organisations, did not consistently have input into system design and implementation. Collective participation in decision making on care needs to be ensured.

Te uekaha me te mana o te ture
Dynamism and the rule of law

87. The scope, nature and content of human rights changed during the Inquiry period. Formal legal protections for human rights increased. This included ratification by Aotearoa New Zealand of a range of international treaties starting in the 1970s, and the enactment of the New Zealand Bill of Rights Act in 1990 and the Human Rights Act in 1993.

88. Those developments should have led to increased protection for the human rights of those in care, including an increasing focus on human rights standards in care. While there were improvements in some areas, human rights protections for those in care were inadequate.

I mua i te 1990
Before 1990

89. Before the New Zealand Bill of Rights Act 1990, and despite Aotearoa New Zealand having ratified a number of international human rights treaties, there was little visibility of human rights in relation to care settings. Also, while there seemed to be an understanding in some circles that before 1990 these rights were protected by the common law and by practice in Aotearoa New Zealand,[43] that understanding is not supported by many survivors’ accounts. The extensive and very serious abuses at, for example, the Child and Adolescent Unit at Lake Alice Hospital in Rangitikei and Marylands School in Ōtautahi Christchurch, demonstrate to that before 1990 the human rights of those in care were not sufficiently protected by law, or otherwise.

Whai muri i te 1990
After 1990

90. The enactment of the New Zealand Bill of Rights Act brought a greater level of legal protection for human rights generally. The Inquiry saw little evidence, however, that there were greater levels of protection in the context of care. Serious abuse and neglect occurred at Hebron Trust in Ōtautahi Christchurch and Whakapakari on Aotea Great Barrier Island after 1990. Also, the Inquiry’s interim report, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui includes a finding that State agencies did not consider survivors’ human rights when designing the State claims processes for abuse in care.[44]

91. Obstacles such as the accident compensation bar,[45] limitation periods,[46] and the generally limited amounts ordered by the courts to date as Bill of Rights compensation are strong disincentives to accessing the courts in relation to abuse and neglect in care. Dr R Harrison KC has argued that the sums awarded as Bill of Rights compensation by the Supreme Court in Taunoa v Attorney-General [2007] “are so small as to be derisory”, and “the narrow and niggardly approach adopted by the majority Judges in Taunoa both devalues human rights and at the same time disincentivises litigation seeking to enforce them”.[47] An exception to this is Fitzgerald v Attorney-General [2022]. The Inquiry understands, however, that the Crown appealed this judgment to the Court of Appeal, the appeal has been heard, and judgment is awaited.

92. Also, some of the rights in international treaties to which Aotearoa New Zealand is a State party are not in the Bill of Rights Act, including a general right to security of the person.[48] Actions based on those rights cannot therefore be brought to the courts here.[49]

Te papanga, me te mōtika ki tētahi tūhura wawe, tōkeke hoki, me te whai hua
Accountability, including the right to a prompt and impartial investigation and to an effective remedy

93. Accountability for abuse in care has been the exception rather than the norm. There was a lack of clear and accessible complaints processes in many settings, and little accountability where standards of care were breached, as acknowledged by Oranga Tamariki Chief Executive Chappie Te Kani at the Inquiry’s State Institutional Response Hearing in relation to the care and protection system.[50] Many survivors have not received fair compensation, rehabilitation and redress.

94. In its interim report, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry found that many obstacles in the legal system exist for survivors seeking redress, and the Inquiry made recommendations to address these. Survivors are still waiting to see whether the State will accept those recommendations.

95. When this Inquiry began, survivors generally did not have good options for seeking redress. There was infrequent criminal prosecution of perpetrators.[51] Survivors were largely prevented from accessing the courts. The Accident Compensation Corporation did little for most of them. The State and some faith-based institutions provided a range of largely informal out-of-court processes. However, as the Inquiry found in its interim report, He Purapura Ora, he Māra Tipu, From Redress to Puretumu Torowhānui, these were generally inconsistent, inadequate, inaccessible for many people, and otherwise unsatisfactory.[52]

96. For example, a person who had been raped when they were in care as a child now seeking redress would face many significant obstacles. The only real option would be a low-level, out-of-court settlement, and the terms would be substantially controlled by the institution where the abuse occurred.[53]

97. For many survivors, the obstacles and other issues referred to above remain. This is inconsistent with basic understandings of justice and fairness, and with the values Aotearoa New Zealand purports to hold. Significant change is required before it can be said that Aotearoa New Zealand is meeting its human rights obligations to survivors of abuse in care.