DEPARTMENT OF SOCIAL WELFARE ACTION
1st Quarter 2010

Introduction:

It has been about nine months since we last forwarded a newsletter regarding progress of the claims. There have been recent developments, good and bad, which affect your individual claims. Please read through this newsletter carefully.

Overview:

Since our last newsletter we have been:

• to the Court of Appeal in relation to the case heard at the High Court at Wellington in relation to two brothers who were under DSW care;

• continuing to vigorously resist the Legal Services Agency's ("LSA") attempts to withdraw your funding;

• continuing to file individual claims in court; and

• continuing to maintain pressure on the Government and the Crown to settle the claims out of court, through domestic and international political means, including the United Nations.

Court action:

In our last newsletter, we advised you about the appeal to the Court of Appeal against the decision of the Wellington High Court dealing with two brothers who were under DSW care. The appeal was heard in early August 2009. We have not yet received a decision. We anticipate that some of the delay in receiving a decision is because the Supreme Court (New Zealand's highest court) is considering some issues in other cases which were also raised in this firm's appeal. We will issue a further newsletter once we have the Court of Appeal's decision and we have reviewed the implications of that.

As we said in the previous newsletter, two DSW cases were set down for trial at the end of 2009. Another three matters were set down for trial in 2010 and a further two have been set down for trial in 2011. The Crown settled the case which was to be heard at the end of 2009. That involved a client who had been on a programme in the late 1990s, which was closed down after complaints. It is likely that we will settle claims for other clients who were on the same programme.

Of the three cases set down for 2010, one will not be going ahead. The first case, in which our client was in Hamilton Boys' Home and Kohitere, will be starting in mid April 2010. The third case, involving foster care, is scheduled to go ahead in late November 2010. We will keep you advised of progress.

An increasing number of DSW cases are being contested by the Crown on the basis that clients are unable to get through the Limitation Act hurdle. In each of those cases we are required to provide to the Crown, all relevant documents. We are then required to file written evidence setting out the reasons why the claim was not brought until it was. The evidence invariably includes an expert report from a psychiatrist and/or psychologist. If you are one of the clients who we have notified of such a hearing, it is important that you work closely with us to obtain the documentation we need for you and also to obtain the written evidence we need.

We have referred, in recent newsletters, to a new section being included in all claims being filed, referring to a series of international and New Zealand human rights instruments, including the Bill of Rights Act, the United Nations Convention Against Torture and the Universal Declaration of Human Rights. We have now run one test case arguing this matter. We lost the issue at High Court level. Due to the complexities of that particular case, we are not appealing the decision. We have, however, argued the issue in another case that was heard in the High Court at the end of 2009. Depending on the outcome of that case, we may look to address the issue in the appellate courts, including the Court of Appeal and/or the Supreme Court. We will keep you advised of progress in relation to that.

Legal aid:

It is fair to say that we are still having legal aid problems, which we have told you started at the beginning of 2008. We are also experiencing increasing difficulties with the High Court in delaying cases where legal aid has been withdrawn. In some cases, that has meant clients have been forced to discontinue their claims.

For those clients whose applications for an initial grant of legal aid have been declined, in particular, we have undertaken work to have those decisions reviewed by LARP. If you are one of those clients, you should be aware that until we have a decision from LARP, the only work we can undertake on your behalf is attempting to obtain a grant of aid. We will be in touch with you once we have an outcome.

As some of you may be aware, Dame Margaret Bazley undertook a review of the Legal Services Agency in mid 2009. Her report was released at the end of 2009. Dame Margaret Bazley identified serious problems with legal aid, including the cost of legal aid, the inability of some clients to access legal aid who should have it and also major communication difficulties between the LSA and lawyers. As a result of Dame Margaret Bazley's report, the Government is implementing a change whereby the LSA will be folded into the Ministry of Justice. Steps are already being undertaken to effect that change.

In the context of your claims, Dame Margaret Bazley stated that the Government should look to set up a process for resolving your claims out of court. That is a very important recommendation and one which, we hope, the Government will give serious consideration to. In that regard, we refer to the developments with the Human Rights Commission, which are addressed further on in this newsletter.

"Out of court" process:

As advised above, and in our previous newsletter, we are still receiving "one-off" offers to settle individual clients' claims. This is only where a caregiver or staff member has been convicted of a sexual assault in respect of the client, or there is strong evidence of sexual assault by a caregiver or staff member or other serious wrong-doing, which is evident on the client's file. Virtually all other claims are rejected. We note that the offers we have had are at a very modest level, in other words just enough to be acceptable. Accordingly, you should have no expectation of a high settlement offer being made if you embark on this process, if any offer is made at all.

In our last newsletter, we also advised that we had been contacted by the Kapiti Police, who were investigating two former Epuni staff members in respect of sexual assault allegations. We have assisted the Police in providing information from our clients' files with our clients' consent and cooperation. Once again, if you wish to be added as a complainant, then please contact us and we can provide you with further information.

We repeat the information we provided in our last newsletter, that the Police have expressed an interest in investigating staff who sexually assaulted our clients from Epuni, in particular, but it would not be limited to that institution. Accordingly, if you do wish to make a complaint to Police about sexual abuse you suffered as a child in care, then please let us know and we can direct you to those at Police who will be able to help.

MSD Care Claims and Resolution Team:

We are aware that a number of clients have contacted, or have been contacted by, members of the Care Claims and Resolution Team run by MSD, which is the defendant in your case. It is very important that you discuss, with us, any contact that you have with that team - preferably before you do so. This is for two reasons. First, any contact that you have with that team may negatively affect your case. Secondly, all of these claims involve complex legal issues. It is important that you have legal advice from this firm before you attend any meeting with that team and/or discuss any settlement options.

Human Rights Commission & United Nations:

In our last newsletter, we advised you that we had complained to the United Nations Committee Against Torture ("UNCAT") in respect of the refusal of successive New Zealand Governments to put in place any process for resolving your claims out of court. We are aware that the Human Rights Commission ("HRC") has been monitoring the Government's progress and intends to report to UNCAT in May of this year.

To that end, we report that the HRC is currently undertaking its own investigation into the Government's handling of your claims. The HRC will focus, in particular, on comparing the New Zealand approach with that of other Commonwealth countries. We have already observed that in many Commonwealth countries, Inquiries have already been undertaken into the abuse of children in care. Compensation and restitution programmes have been set up to address those clients' claims.

We have already provided some information to the HRC as part of its investigation process. We will continue to provide further information, if requested, by the HRC. We will also continue to report to the United Nations in respect of the issues we are facing in progressing your claims.

Research:

In our last two newsletters, we have referred to the work being done by David Cohen (journalist and writer) and Dr Elizabeth Stanley from Victoria University. David Cohen has now completed his work, we understand, and hopes to publish his book during the first half of this year. Dr Stanley is now interviewing clients who have agreed to be interviewed by her for the purpose of her research. She will be presenting two papers in Ireland in early 2011, when she will report on her findings as to New Zealand's handling of claims brought by those who have been abused in State care. We look forward to receiving the outcome of her research.

Listening and Assistance Service:

We referred to the Confidential Listening and Assistance Service ("CLAS") in our last newsletter. We have advised you that the Service will listen to your story. It will not be able to provide you with an apology, or an acknowledgement as to what happened to you, or any compensation. We have already advised you that the Service is able to assist you to access counselling services to help you tell your story.

Since the CLAS has been up and running, we have had meetings with the Chairperson, Judge Henwood, and the Chief Executive, Gordon McFadyen. We have been advised that, in addition to accessing counselling services, the CLAS has also assisted clients with: accessing records (including MSD and Police records); finding employment; reuniting families; assisting at Parole hearings; accessing parenting courses and the like. To date, we have been impressed with the way in which the CLAS has endeavoured to work with our clients to address their issues. We have also been impressed that the Service understands that it cannot provide one of the most important outcomes that you need and that is an acknowledgement that you suffered abuse in care and that you should receive an apology (and compensation) for that.

In the event that you have lost the contact details for the CLAS, they are as follows: PO Box 5939, Lambton Quay, Wellington 6145, Tel. 0800 356 567, or you can look at their website at www.listening.govt.nz. We understand that the Service will be travelling throughout New Zealand and will be including visits to the prisons. If you are in prison and they will not allow you to telephone the 0800 number, please ask the prison to telephone us and we will confirm that you should be permitted to make that call.

Closing files:

We have stated in a number of newsletters that we will close files where clients have changed their contact details and we have not been updated in that regard. Accordingly, it is important that you let us know if you change address and/or telephone number. Where we have lost contact with a client and we have filed that client's claim in the High Court, we apply to the Court to withdraw as the lawyers on the record. Our applications to withdraw as counsel are advertised in national newspapers through New Zealand. In cases where claims have not been filed in court and clients have not responded to our requests for contact, we send in a final invoice to the LSA and close off that client's file. It will only be in rare cases that we will re-open a client's file in that circumstance.

Mail from us:

It is also important that you respond to any mail that we send to you which requires some input from you. In particular, we may need you to complete some forms and return them to us.

We may also need you to work through draft documents that we send to you and which we need to complete for your case. In some cases, once we have completed documents, we will need to send them to you to be formally signed and returned to us. It is important, in each of those situations, that you respond to our requests for you to help us, as soon as possible.

It is also important, when we do send you documents and letters, that you understand it is sensitive and confidential information. To that end, we ask that you do not talk about the information we have provided to you, with others who were also in DSW care. This includes email and social networks. There is a very important reason for that. If you discuss information we have been providing you with others who have been in DSW care, then you run the risk of your credibility being damaged if that comes to light.

Contact with this firm:

You should all now be aware that we are known as Cooper Legal. We have a slightly increased number of staff, namely Sonja, Katie, Sam, James, Courtney, Bexx and Sophie. We continue to be very busy progressing work. As per usual, Bexx will typically be your first port of call. She has a good working knowledge of every person's file and is now qualified as a legal executive. Where Bexx is unable to assist you, she will be able to refer you to one of the solicitors.

Once again, we remind you that we are trying to keep your costs down as much as possible. Please be reassured that we will keep you up to date via newsletter, or individual letter, with any important news affecting your claim.

One of the ways in which you will be able to keep up to date with all developments is by keeping your eye on the website, if you have internet access. We will be sure to add to the site any information which is of interest to the client group. That site can be found at sonjacooperlaw.co.nz.

We are pleased that we have been able to report in this newsletter that the HRC is formally investigating the Government's management of these claims. We are also pleased that the United Nations is monitoring progress in that regard. We are hopeful that we will have some success, at least, when the Court of Appeal delivers its decision. If we do not, as we have already said, we will look to appeal to the Supreme Court.

You should be reassured that we continue to work hard in the office to progress your claims. Where we can, we look to settle clients' claims and progress them through to some resolution. We are making some progress, although that is very slow and not particularly satisfactory. Nevertheless, progress is being made and we can only continue to work to ensure that progress continues to be made.

Regards, Sonja & Team

Important note:
This newsletter is intended solely for the information of claimants. It is not, and is not intended as a substitute for, legal advice.