Yesterday, the High Court told Government Departments that survivors of abuse in State care have the right to access information that the State holds about them.
In the judgment, Justice Palmer ruled that State agents must provide survivors with copies of their Family and Youth Court records, including psychological and social work reports.
Cooper Legal Principal Partner, Sonja Cooper, who argued the case along with solicitor Feroze Brailsford, says that Cooper Legal had long been asking agencies, in this case the Ministry of Social Development (MSD) and Oranga Tamariki (OT), to provide these key documents to survivors’ lawyers, only to be told that permission should be obtained from the Court.
“That position was incorrect and completely impractical”, Ms Cooper says.
“Cooper Legal had tried to work with MSD and OT to ensure we could agree to a sensible way forward for survivors who are seeking redress from the State.
“Unfortunately, this got us nowhere. In the end, we had no choice but to ask the Court to tell MSD and OT what their legal obligations were.
“The judgment was vindicating for Cooper Legal and survivors. Justice Palmer recognised the negative impact on survivors’ ability to obtain redress because the State continually changed its position on what records a survivor was entitled to access.
“It is important to remember the records we are taking about are about survivors themselves and are being used by MSD and OT to assess a survivor’s application for redress.
“We are glad that the High Court recognised that it is unfair and a breach of natural justice to allow the State to access these records, but not the person who the records are about.
“Unfortunately, survivors are understandably very wary of the State. Justice Palmer recognised this and recognised that they could not trust the State to abide by a decision of the Court, without a formal order.
“As a result, the Court made a declaration clarifying the law. This was that the nominal plaintiffs had the right to access, as adults, information about themselves held by the defendant Departments.
“It was pleasing to see the High Court recognise that the Royal Commission into Abuse in Care had made recommendations in its interim report in December 2021 and its final report in July 2024 about making records more accessible for survivors.
“Ironically, MSD’s and OT’s incorrect position was based on a guidance document prepared by the Crown Response Unit, which co-ordinates the Government’s response to the Royal Commission.
“If the Government wants to regain survivors’ trust, it should start by implementing the Royal Commission’s recommendations, instead doing the complete opposite and fighting survivors in the High Court”, Ms Cooper concluded.