The state giveth and the state taketh away

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

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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?

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.”)

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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.