READERS PLEASE NOTE: I submitted the following article
to the few mainstream outlets that I considered likely to be interested in
publishing it. None accepted it, for reasons that I understand. Journalistically,
it’s problematical for several reasons. Nonetheless I think it’s a story that
deserves to be told, which is why I finally decided to publish it on my own blog page.
Anyone wishing to share or reproduce it should feel free to do so at no cost.
BY KARL DU FRESNE
his is a story of a family
caught up in “the system” and overwhelmed by what can seem an intrusive and
all-powerful bureaucracy.
It’s a story about a couple
whose children were taken away and who are desperate to get them back, although
there seems little prospect of that happening, at least under present
circumstances. And at its core it’s about three small children, unseen and
unheard, who have been removed from their parents and are growing up without
them.
It’s a story that illustrates
the complexity and emotional sensitivity of the issues dealt with by the
controversy-plagued child welfare agency formerly known as CYF (now the
Ministry for Vulnerable Children, Oranga Tamariki), and it goes some way toward
explaining why some people accused the agency of abusing its power.
It’s not a straightforward
story, with instantly identifiable heroes and villains. It’s messy. The
protagonists could be said to have contributed in multiple ways to their own
predicament. The only entirely blameless parties are the ones with no control
over their fate: the children.
But the story does raise
questions about a child welfare system which, if the couple’s account is to be
believed, can be overbearing and bullying. It also illuminates what has been
labelled the “three cars in the driveway” syndrome. The couple had dealings
with a plethora of social agencies, but none seem to have provided the
practical help they say they needed.
It’s a story that raises
public interest issues, since the taxpayer is complicit in what has happened.
The children were born as a result of state-funded fertility treatment and
then, in a cruelly ironic twist, were taken away when the same state decided
their parents couldn’t be trusted to look after them.
It also raises questions
about the disclosure of sensitive information given in the expectation of
confidentiality, and about how much – or how little – the public knows about
actions taken on its behalf.
Cases involving
care-dependent children are not generally publicised for the very good reason
that minors must be protected from the glare of public exposure. But this
raises a nagging question: how many similar stories remain hidden because rules
intended to protect the vulnerable also have the effect of shielding “the
system” from public scrutiny?
HE COUPLE at the centre of
the story, Radha and Murray Gardener (not their real names) live in a state
house in a provincial city. They are on benefits. They have no car, little
contact with extended family and give the impression of being socially
isolated.
Their house is tidy and well
cared-for. There are pot plants in the small front porch. In winter, Murray
complains that the ground is too water-logged for him to work in the garden.
Radha, a Fiji Indian, is a
small woman but feisty and forthright, with a volatile streak. English is her
second language. Murray, who’s white and Australian-born, is quieter and more
phlegmatic, but he’s astute and capable of expressing himself succinctly. He’s
80, she’s 40 years younger.
In his language and general
manner, Murray seems slightly out of place in 21st century New Zealand. Generational
differences may have been a complicating factor in his dealings with CYF. He
refers to women as sheilas – not in a derogatory tone, but it’s not something that
would have endeared him to younger, female social workers.
I met the couple after my
sister, Julie du Fresne Kynoch, took up their case. Julie and a friend had come
across an obviously distraught Radha in a Catholic church and asked what was
troubling her. That was in 2014. “Julie became my best friend,” says Radha.
Interviewing the Gardeners is
not easy. Radha frequently goes off on tangents. There are abrupt, bewildering
chronological jumps in the narrative. Sometimes the couple’s accounts are
garbled and sometimes they disagree.
While they seem devoted to
each other – Murray calls Radha “Bub” – there are occasional hints of
unresolved issues between them. An official report on the Gardeners suggests,
without providing any substantiation, that there was violence between the
couple, which Radha says isn’t true.
The following account was
pieced together from official documents as well as interviews with the couple.
ADHA met Murray after she
placed an ad in the “Connections” column of the New Zealand Herald in 2003. She had come to New Zealand on her own,
obtained work as a waitress in Auckland and wanted to find a husband.
Murray, who grew up in
Queensland but had served in the New Zealand Army – at Terendak, in what is now
Malaysia, and Vietnam – was employed as a storeman. He had previously been
married and had an adult family.
Murray saw the ad and got in
touch. Radha flew to meet him in the city where he lived and they hit it off,
despite the age difference.
In the culture Radha came
from, there was pressure to marry and have children. She too had been married
before, to an Indian man, but had no kids. Now she wanted to marry a European.
“I’ve seen a lot of white men and thought white men are quite nice,” she says
with characteristic, disingenuous frankness. “Quite educated and things like
that.”
They married in 2003. Radha was 27, Murray 67. But
this isn’t one of those cases where an older white male takes advantage of a
naïve and vulnerable Third World bride. Radha gives the impression of being too
assertive and independent for that.
She didn’t see the age gap as a problem. She was
escaping the expectations of a culture where women marry young, have children
and take on responsibilities for the wider family. “That was a very big escape
for me,” she says.
But although she didn’t want children at first, she
says family pressure began to weigh on her after she went back to Fiji for her
brother’s wedding. Her family couldn’t understand why she and Murray didn’t
have children.
Radha returned to New Zealand “really upset”. “I told
[Murray] this was in my culture and asked if he would agree to have
children. I said, ‘let’s go to the doctor and see’.”
Murray was not in good health (he has diabetes). He
also had a low sperm count – too low to have children. They were referred to a
doctor from Fertility Associates, which is based in Remuera, Auckland, and
operates 18 fertility treatment clinics around the country.
Murray says he sensed that their GP thought fertility
treatment would be unwise because of their age difference, but the doctor from
Fertility Associates who interviewed them didn’t think there were any issues.
The company applied on their behalf for funding from the Ministry of Health and
got it.
Fertility Associates – “over 29 years’ experience and
17,000 babies born so far”, according to its website – declined to answer
specific questions about the treatment provided, citing patient confidentiality
(although it was made clear the couple would not be identified). However the
Ministry of Health says the usual cost of treatment is between $8000 and
$10,000 per treatment “cycle”. In the case of the Gardeners, funding was
approved for two cycles.
Radha was given sperm from a donor and became pregnant
with triplets. “I was really, really happy,” she recalls. “This was the biggest
happiness that ever happened in my life. And then things went sadly wrong for
me.”
Murray chips in. “She lost one baby at five weeks and
one at four months.” He has a sharp mind and a clear recollection of dates,
names and places. (Asked about the possibility of adverse consequences
following fertility treatment, Fertility Associates said the risk of
miscarriage was similar to that with natural conception.)
The third of the triplets, Louisa (not her real name),
was born at 31 weeks in 2010. Radha very nearly died from toxaemia. Murray
remembers the police, or “coppers” as he calls them, coming to their flat and
telling him go to the hospital immediately because Radha was extremely sick.
FTER a long spell in hospital, Radha came home without
the baby. Murray says she had post-natal depression and post-traumatic stress
disorder.
It was in hospital that Radha first came to the
attention of a social worker. “I was ill and they [the hospital] forced her [the
social worker] on me. They kept asking, ‘Do you want a social worker?’ I didn’t
know what a social worker is because I never had a social worker in my life.”
She confided to the female social worker about her
“private life” and included the information that Murray had once served a
prison term for rape. “She [the social worker] was asking me questions like a
journalist would: how did I come to New Zealand, what did I like, how was I
going to look after the baby, that sort of thing. I was just trying to be frank
and open with her.”
Radha says she assumed their discussions were
confidential. “I didn’t know she was making a report or telling stories all
over the hospital.” But obviously the rape disclosure went on her file.
A Ministry of Social Development report prepared in
response to complaints about the Gardeners’ subsequent treatment by CYF makes
no mention of Murray’s criminal record, but confirms that a hospital social
worker filed a “report of concern” prior to Radha’s discharge. It said the
social worker was concerned about Radha’s mental health and cognitive ability –
concerns that were to resurface repeatedly over the following years.
Not surprisingly, Murray doesn’t seem comfortable
talking about his rape conviction (Radha found out about it only after they got
married, and clearly wasn’t happy), but he acknowledges it openly enough. He was tried in 1992, found guilty and spent
four years in prison.
The case involved two 15-year-old girls who would come
to his house after school. Murray says one of the girls asked him to teach her
how to “pash up” (that language again) and it led from there. And the second
girl? “She was a friend and she was there. You know how it goes.”
He says there was no coercion and that if he had been
charged with unlawful sexual connection, he would have pleaded guilty. But the
jury concluded it was rape.
When combined with concerns
about Radha’s mental health, disclosure of Murray’s conviction was enough to
put the couple on CYF’s radar.
Julie Kynoch is convinced
that CYF had Murray in its cross-hairs from that time on because it viewed him
– wrongly, she believes – as a potential sexual abuser. “I believe CYF adopted
a mindset in regard to him,” she says. Murray himself says he was falsely
accused by a CYF social worker of sexually grooming Louisa.
F Kynoch is right about
Murray being viewed as a likely abuser, there are similarities with two cases
reported earlier this year by Radio New Zealand, which suggest CYF had a
fixation with supposed threats posed by some fathers, even when the department
was known to be wrong.
In one case, CYF refused for
15 years to correct erroneous records claiming that a father was a sex abuser
and even repeated the unsubstantiated claims in reports to the Family Court.
The Ministry of Social Development, CYF’s parent ministry, apologised to the
man and was subsequently reported to be negotiating a payout.
In the other case, a Family
Court judge rebuked CYF for putting a three-year-old girl at risk by providing
misleading information about her father. CYF repeatedly told the court the man
was violent, thereby obstructing his efforts to win custodial rights from the girl’s
mother, who was a drug user living in an abusive relationship.
The father subsequently
initiated legal action against CYF. Anne Tolley, then the Minister of Social
Development, described herself as “a bit cross” and ordered a review of the
case.
But there were other complicating
factors in the Gardeners’ case. The MSD report says Radha herself had expressed
“concerns” – unspecified – about Murray to social workers.
In later dealings with social
workers, Radha would say things that she now says were misconstrued, and which may
have led CYF to conclude that Murray was a potential abuser. And Murray himself, by making comments that
he now cannot explain, would reinforce CYF’s view of him as a man not to be
trusted.
ABY LOUISA eventually came
home. Murray says she was the joy of Radha’s life. But as time went by, Radha
decided Louisa needed a brother. “I didn’t want her to grow up alone.”
The Gardeners had been funded
for a second round of fertility treatment, so went ahead. No one appears to
have expressed reservations, despite the loss of Louisa’s unborn siblings and
the problems associated with Louisa’s birth.
Twins Brendan and Tanya (not
their real names) were born in 2013, three years after Louisa. The pregnancy
went full term and the babies were born healthy. But Radha was the subject of
another hospital report which said she appeared irrational, paranoid and
aggressive. There were concerns about her going home with the twins.
Murray, too, had again come
to CYF’s attention when Radha told a social worker she was worried about
leaving Louisa at home with Murray while she was in hospital.
Radha admits saying this, but
says she was concerned only because Murray – who was now on the wrong side of
75 and suffering from sciatica as well as diabetes – might not be capable of looking
after Louisa.
Murray himself didn’t think
he could cope. He says his sciatica occasionally caused him to collapse in pain
and he was worried he might be left immobile on the floor. On occasions he was
forced to move around on his hands and knees.
Besides, Louisa was a very
active three-year-old and Radha feared that without constant supervision she
could have a serious accident – possibly even electrocute herself.
Whatever was on Radha’s mind
at the time, the Gardeners believe CYF misconstrued her concern and thought she
was worried that Murray might sexually molest his daughter.
With the Gardeners’ consent,
Louisa was placed with a caregiver while Radha was in hospital. The little girl
would be brought in to see her mother, and it was during one of these visits
that Murray made a comment – an essentially harmless comment, but one that was
bound to provoke disapproval – that he thinks further turned CYF against him.
As Murray explains it, Louisa was crying and he
thought she would be comforted by being breast-fed. He asked Louisa: “Do you
want some of Mum’s titty?” It was overheard and he was subsequently rebuked by
a CYF social worker – one whom the Gardeners came to regard as hostile – for
having made a vulgar and sexual remark. It was another black mark.
T was another, later comment from Murray, however,
that understandably ramped up suspicions against him, and it was one that he
admits he can’t explain. It happened when the twins had come home and Radha was
changing Brendan’s nappy. Louisa was watching and Murray asked if she would
like to lick (Radha says the word was “suck”) Brendan’s nuts.
The remark played on Radha’s mind and when she went to
her doctor the following day, she told him about it. “I used to tell the doctor
everything.
“It weighed on my mind. I said to myself, I do
everything for this man [Murray] – everything I can possibly do. Why did he say
that to my kid? Why?”
She didn’t realise, she says, that the doctor would
inform CYF. Within hours, social workers had arrived at their house and ordered
Murray to leave the family home. The MSD report says officials determined that
his behaviour was unacceptable and a “safety plan” was put in place which
required him to move out.
He left that afternoon and spent a year living on his
own. CYF told him to get some counselling, which he did – for 34 weeks.
ID MURRAY represent a sexual threat to the children? A
person who has read a lengthy psychologist’s report on the Gardeners, prepared
for CYF, says it concluded that he was not a potential abuser.
Murray himself says the police never came knocking on
his door when they were investigating local sexual offences, the implication
being that they didn’t think he was a danger.
Asked if he can explain why he made the “nuts” comment,
he sounds remorseful. “No idea. No idea why I said it.” He says his former
lawyer would have described it as prison talk.
Radha is remorseful too, for having told the doctor.
“I didn’t want [my husband] to leave. I didn’t want my family to break up. I
made a mistake telling the doctor.” She thought doctors were bound by rules of
professional confidence.
But while Murray’s verbal indiscretion resulted in him
being banished from the family home, it wasn’t the final straw. That came when
Radha, under stress from looking after three small children on her own, feeling
she was constantly being critically assessed and getting little practical help
despite visits from CYF and miscellaneous social agencies, blurted out
something that was interpreted as a threat to kill her family and take her own
life.
It happened one day when she was picking up Louisa
from kindergarten. Radha, a woman given to sudden impulsive outbursts, was
struggling with a pushchair and an obstinate gate. Clearly near the end of her
tether, overtired and feeling harassed by kindergarten staff, she said to a
staff member: “Why don’t you give me some poison so I can drink it?”
Radha denies threatening to kill her children, but it
seems that’s what kindergarten staff told CYF she had said. This followed
further concerns that had been expressed by a CYF social worker about her
mental health, although community mental health workers had visited Radha and
concluded there was no need for them to be involved.
CYF wasted no time acting on the kindergarten
incident. That evening CYF staff armed with a court order turned up unannounced
at Radha’s house, accompanied by five police officers, and took the children
away.
Radha insists that when one of the police officers
asked the senior CYF official at the scene what they should do about her
[Radha], he replied: “Leave her there to die.”
CYF has denied any such statement was made. Whether or
not it was, it seems extraordinary that a woman whom social workers considered
mentally unstable, and possibly a suicide risk, was left alone after having her
children forcibly taken away.
Murray learned of the children’s removal when a
distraught Radha came to see him later that night. Within a month, Radha was in
the mental health ward at the local hospital. After her discharge, Murray
returned to live with her.
HE CHILDREN were removed on February 7, 2014 and
placed with a CYF caregiver. They have never been back to the family home.
The psychologist’s report prepared for CYF, which the
Gardeners say was written after only brief interviews with them, and which
appears to have been mostly based on information provided by CYF, said it was
not in the children’s best interests to go back to their parents.
That report, which appears to have been a crucial
factor in CYF’s decision-making, became another bone of contention. Julie
Kynoch questions whether someone dependent on CYF for much of her income, as she believes the psychologist was, could be regarded as impartial.
The children’s caregiver, a solo mother with an older
child of her own, subsequently applied for parenting orders. At this point,
events took a puzzling turn.
At a meeting with CYF, the Gardeners consented to the
granting of a care and protection order over the children, effectively
conceding that they would be better off with someone else. Murray explains this
by saying he and Radha were advised that it would give them their best chance
of eventually getting the children back.
Julie Kynoch thinks Radha had developed a habit of
saying what she thought CYF wanted to hear. The couple also felt they should
take the advice of their lawyers and a friend who thought that agreeing to the
care and protection order and “keeping in good” with CYF would improve their
chances of having the children returned.
In fact it now looks, in hindsight, like the point of
no return.
The Gardeners were babes in the wood, Kynoch says. “They felt compelled to agree to CYF arrangements in
the expectation that compliance would improve their chances of the children’s
return.”
The upshot was that in November 2015, the Family Court
granted the children’s foster mother a final parenting order, thereby
effectively placing them permanently in her care.
INCE then the Gardeners have been allowed to see their
children once every three months – for one hour, under supervision.
They take
the children toys and food treats. Murray says the children run to him, calling
out “Daddy, Daddy”. The Gardeners claim, although it can’t be corroborated,
that the children sometimes look skinny, dirty and poorly dressed.
The limited access seems gratuitously cruel, but a
lawyer experienced in family law says the aim is to avoid children getting too
attached to their “real” parents. “You could call it tough love.”
Not much has changed in the two years since the court
order, except that the caregiver moved to another city 140 kilometres away,
thus making visits more difficult.
The Gardeners say they are given virtually no
information about the children’s wellbeing or progress. A recent glossy report
from the twins’ kindergarten was a first.
They have never met the caregiver and there seems to
be no onus on anyone to keep them informed. CYF batted away my questions about
the children’s welfare on the basis that they were no longer its
responsibility, that having passed to the Family Court.
For its part, the court seems reluctant to air the
facts about the case. My request to see the court file was turned down by Judge
Jill Moss, initially in the mistaken belief that I had been “involved
extensively in supporting and advocating for [Mrs Gardener]”. Judge Moss accused
me of not fully disclosing my interest in the matter.
She was wrong. At no point had I had any partisan involvement
in the case. As a journalist, I was simply keen to establish the facts. But the judge appeared to assume,
presumably because my sister had advocated on Radha’s behalf and often goes by
her maiden name, that I was Julie’s husband.
Judge Moss also accused me of making a second attempt
to obtain information that the court had already decided not to release. Wrong
again: I had not been involved in any previous approach to the court and was
solely concerned with obtaining information that might help in the preparation
of this article.
The judge reviewed her decision after her mistake was
pointed out, but the result was the same. She ruled that since I had the
co-operation of the children’s parents, who she said were in possession of the
relevant documents, there was no need for the court’s file to be disclosed to
me. It was a small insight into the difficulties of trying to penetrate a
system that seems stubbornly resistant to scrutiny.
HERE have been other issues, many of them detailed in
the Gardeners’ complaints to the MSD. Those complaints were dealt with in a
detailed 18-page report in June last year that left the Gardeners and Julie
Kynoch, who helped with their case, dissatisfied and frustrated.
The complaints were considered by the MSD chief
executive’s two-person “advisory panel”, which went back over voluminous case
notes, Family Court files, reports of various family group conferences, earlier
complaints about CYF’s treatment of the Gardeners and the department’s
responses to those complaints.
The panel ended up dismissing virtually all the
Gardeners’ grievances, mostly because the couple’s allegations weren’t corroborated
by CYF staff. Where the Gardeners’ claims differed from CYF’s version of
events, the default position seemed to be that nothing had been proved.
One minor complaint – about one of the children being
given a crude haircut – was upheld “because there are often cultural
considerations around cutting of children’s hair”. But the panel seemed less
concerned with cultural sensitivity when it ruled on another complaint. The
Gardeners alleged that during a visit with the children, Radha was punished by
the access supervisor for speaking to them in Hindi. Her visit was abruptly
terminated and her access to the children subsequently cut back.
The panel’s report doesn’t deny this happened, but
says supervisors must be able to understand what is being said during access
visits in order to “redirect the parent if they are speaking inappropriately”.
To the outside observer, it all seems a bit controlling.
Issues of language and culture, while not central, may
have been an aggravating factor all along. Radha thinks things might have worked
out differently had she had been able to speak to someone from her own cultural
background while in hospital, or when she was struggling with mental stress at
home.
It may not be coincidental that the Gardeners say they
got on well with a Pasifika social worker who was originally assigned to their
case. Things started to turn sour when that social worker was replaced by a young white woman
who, from the outset, gave the impression of being critical and judgmental.
One point the advisory panel confirms is that CYF saw
Murray as a threat to the children even though there was no evidence of him
having behaved badly, other than when he made the comment that resulted in him
being barred from the family home. The report says there was an “extreme” level
of concern about Murray but doesn’t say why.
The panel refused to accept Radha’s complaint that she
had not been given sufficient help to cope after Murray was ordered to leave
home. Radha confirms there was a constant stream of visitors to the house from
a variety of social agencies, but says no one offered the sort of help she most
needed – for example, preparing meals or doing the washing.
HERE does all this leave us? A professional person acquainted
with the case says the Gardeners are unlikely to get their children back unless
Radha can demonstrate that she’s mentally stable.
She recently spent time in a mental health unit and
sometimes exhibits signs of paranoia – claiming, for example, that their house
is bugged and that people have tried to electrocute her. At such moments,
Murray seems embarrassed. He rolls his eyes or starts whistling so he doesn't have to listen.
To Julie Kynoch, a mother and grandmother, it’s not so
strange that Radha behaves erratically. “I’d probably be mad if my children had
been taken away from me,” she says.
Seen in this light, it’s a classic Catch-22 situation. Radha may
get her children back if she can prove she’s sane, but it’s possible she won’t
regain her sanity until she gets her children back. And the Family Court
presumably considers it can’t take the risk of returning the children to her in
the hope that doing so will restore her mental health.
In short, it’s a mess. The Gardeners are not
blameless, but neither is the state. The couple had children only because the
state made it possible, and then the state took those children away.
(Asked whether doctors assessing candidates for IVF take
into account factors such as age difference between the parents or the social
and family support available to them, Fertility Associates said the assessments
covered the likely efficacy of the treatment and the balance between risk and
benefit. “The threshold to withhold treatment is high and to date has always
been medical.”)
ULIE Kynoch argues that the dice were loaded against
the Gardeners from the start. “My impression is that racism and ageism are
underlying issues. At the courthouse, at the police station, even at lawyers’
offices, the [Gardeners] have been given the run-around and treated as
second-class citizens, I suspect because he’s old and she’s coloured.”
Are Murray and Radha Gardener fit parents? Possibly not. Does that
mean they deserve everything that has happened to them? Again, possibly not.
Are the children better off being raised by someone
else? That’s possible too. But crucially, there is no evidence of either Murray
or Radha mistreating the children. Rather, the children seem to have been
removed because of a fear that they might
be mistreated – a possibility that exists, at least theoretically, with all parents.
However one looks at it, troubling questions arise:
first, about whether the Gardeners should have been given fertility treatment,
Murray being 40 years older and having a serious sex conviction on his record;
and second, about whether the agency charged with looking after troubled
families behaved in a judgmental and controlling way that may have greatly diminished
the prospect of the family staying together.
A striking aspect of the case is that the couple came under state scrutiny too late. The proper time to critically assess their suitability as parents was at the outset, when they first sought fertility treatment. Had their application been more rigorously vetted and the potential pitfalls identified then, a lot of heartache might have been avoided.
It's not unreasonable to conclude that the Gardeners and their children have been left to pay the price for errors of judgment by other people - namely, the company that provided the treatment and the public servants who approved it.
As is often the case, those parties have escaped responsibility for the consequences of their decisions. That has fallen on the Gardeners and their children. Fertility Associates has banked its fee and moved on. And the state, having expended an incalculable amount of money on the case – on fertility treatment, legal fees, court time, payments to caregivers and to the various social agencies involved – now also seems to have walked away. Meanwhile, three small children are
growing up not knowing their parents and disconnected from their cultural
heritage.
The Gardeners’ story is worth telling not necessarily because it’s an exceptionally egregious case, but because it offers some
insight into what can happen when a family gets caught up in a powerful and
overwhelming system that ordinary people are ill-equipped to deal with. And
perhaps the most worrying thing is that there are almost certainly far more
troubling cases that the public never hears about.
