Deeply personal and traumatic accounts of historic abuse in state care were given to police without the knowledge of those concerned.

A judge has said the abuse claimants were “some of the most vulnerable people in New Zealand society” and distrusted state agencies.

She made an order to stop the Ministry of Social Development (MSD) passing on information, provided for court proceedings, without the claimant’s consent.

Published in Stuff

Their allegations of physical and sexual abuse were often of a deeply personal and traumatic nature, Justice Rebecca Ellis said in a recent decision from the High Court in Wellington.

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Some of the complainants had name suppression in civil cases filed against MSD and the Ministry of Education.

MSD says it handed over the information so that allegations could be investigated.

A lawyer for many claimants, Sonja Cooper, told the court in August 2017 that she learned MSD had given statements to police.

A complaint to the Privacy Commissioner failed in January when the commissioner decided the disclosures did not breach privacy because they were to refer allegations of child abuse.

Cooper told Stuff it seemed fewer than 10 of her firm’s approximately 1000 clients suing various MSD agencies had information handed over without their knowledge or consent.

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However, she understood that many complainants without legal representation also had information passed to police.

Views varied among her clients about information being passed on, but some still had “very real” safety issues.

She understood concerns that children might currently be in the care of the same perpetrator of abuse, but the state agencies had to work with Cooper’s firm and its clients to ensure no harm resulted to the clients from disclosure.

She hoped the court decision would prompt the state agencies to agree a way of proceeding.

MSD said it was aware of the court’s decision and was carefully considering its response.

Since September 2017 it had not referred any allegations of offending to police without either the permission of the court or the claimant, deputy chief executive corporate solutions, Stephen Crombie said.

Justice Ellis’ decision said many claimants had past “interactions” with police, the criminal justice system and corrections, and some were still in jail.

“By and large, it may be assumed that those interactions would not be regarded as positive by them,” the judge said.

Many developed a deep distrust of those in authority and a genuine reluctance to engage or cooperate with them.

Many had good reason to be sceptical of any state agency’s undertakings to keep them safe or protect their interests, the judge said.

Those in jail could put their personal safety at risk if they were seen as interacting or co-operating with authorities such as police.

The circumstances, and usual court rules and processes, gave the claimants a legitimate expectation of privacy and/or confidentiality, at least until the claims went to full hearings, she said.

The judge said that for at least 10 years MSD had known that the claimants objected to their claims, at least with identifying details, being disclosed to police without consent.

The Crown had agreed that only a judge could allow a court file to be searched, but the judge said that without the order she made, that by itself it didn’t stop a party such as MSD from passing on documents.

The court could still give permission for claims to be passed to police if the claimant agreed, if conditions were in place to protect the claimant’s confidentiality interests, or even if the claimant did not agree but it was considered important nevertheless.

Police were approached for comment. 

Article written by Stuff.
Published in Stuff .
14 June 2018.