1.1 Introduction
Keith Wiffin’s father died when he was eight years old (Wiffin Reference Wiffin2020a). The loss led to his getting into trouble, and, in 1970, when Wiffin was ten, his mother approached Aotearoa New Zealand’s Child Welfare service for help with him and his three siblings. Wiffin was taken into state care that November and driven to the notorious Epuni Boys Home in Lower Hutt. There he would be physically and sexually abused for nine months before being moved to another residence. Wiffin would spend five years in care, including a further stint at Epuni. Wiffin is one of hundreds of thousands of people around the world who experienced systemic cruelty, abuse, and neglect while in state care. He is a survivor (or care leaver).Footnote 1
The mistreatment of survivors is the focus of a growing number of public inquiries, popular films and books, court cases, and scholarly works. Many public care institutions were systemically injurious and there is now a broad international consensus that states should bear remedial responsibilities. These responsibilities are discharged, in part, through monetary redress programmes. The first monetary redress programme for survivors of institutional abuse began in 1993. It emerged from a negotiated settlement between several churches, the Province of Ontario (Canada), and survivors of St John’s and St Joseph’s training schools (Shea Reference Shea1999: 35–38). The programme paid CDN$14.5 millionFootnote 2 to 565 survivors. More programmes quickly followed, first in Canada and then internationally. The speed of development is remarkable. A field of public policy wholly unforeseen during Keith Wiffin’s youth in the 1960s became ordinary during the post-Cold War era. Now, in the ‘post-post-Cold War’ period of the 2020s, it is time to examine its practice critically.
The need for critical reflection arises because normalcy has not led to routinisation. Actual redress programmes differ greatly. Nor is there improvement in implementation. Some are better than others and programmes are better (or worse) in different ways. Monetary redress is ‘possibly the most contentious’ remedial measure used by states (Senate Community Affairs References Committee 2004: 225). There is reason for contention. Most claims are difficult to authenticate because good information about non-recent (historic)Footnote 3 abuse is rare and its long-term effects are uncertain. Poor quality evidence contributes to programme delays and increases the burdens on survivors. It also raises questions about the authenticity of their claims.
These evidential concerns are aggravated by the high costs involved. The most expensive programme to date, Canada’s Indian Residential Schools Settlement Agreement (IRSSA), provided over CDN$5 billion in payments between 2006 and 2016. Yet, despite the large numbers involved, money is only part of what redress involves. Survivors emphasise the value of telling their stories and of having their experiences acknowledged (Jay et al. 2019: 59). As one interviewee related,
Almost everyone that we’ve talked to said, ‘But I’m really glad that I did it because I was able to actually tell people what happened and have them acknowledge it …’. What I have heard from a lot of people is the money didn’t matter, it was my ‘getting my day in court’. Sort of; it was important for them.
These good news reports are counterbalanced by survivors who were re-abused by redress. When Keith Wiffin first sought redress in 2003, he approached New Zealand’s Ministry of Social Development (MSD). With small prospects for success in court, Wiffin entered New Zealand’s nascent redress programme in 2008. He would be ill-treated by that ‘thoroughly disrespectful and contemptuous’ process for two years, before being sent a cheque for NZD$20,000 (Wiffin Reference Wiffin2020b: 14). Unfortunately, Wiffin’s damaging experience is all too common. Other survivors describe New Zealand’s process as ‘worse than the abuse itself’ because it was ‘disrespectful, drawn-out, and sometimes traumatising’ (The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2020b: 25). Moreover, satisfaction with redress can be short-lived (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 47). Money is quickly spent, while memories of injury and its long-term consequences remain.
Contention over monetary redress encourages some people to think about replacing it with other remedial measures. I agree that monetary redress should operate as part of a holistic suite of remedial measures. But other remedies should not displace the survivors’ rights. Not only do survivors have a right to full compensation, they are ‘highly disadvantaged’ populations that are characterised by high rates of ill health, homelessness, unemployment, and illiteracy (Haase Reference Haase2015: 7). To illustrate, a 2011 Australian study found that 40 per cent of ‘long-term homeless people’ in Melbourne were care leavers (Johnson et al. Reference Johnson, Parkinson, Tseng and Kuehnle2011: 9). In straitened circumstances, redress can provide a lifeline of hope and survivors consistently emphasise the importance of money. A study in Northern Ireland found that compensation was the most frequently stated remedial demand, mentioned by 80 per cent of a study of forty-three survivors (Lundy Reference Lundy2020: 261). Similarly, a larger study of 564 Queensland survivors asked which forms of redress they had found helpful (respondents could select multiple answers): monetary redress was the most commonly mentioned remedy, cited by 59 per cent of respondents (Watson Reference Watson2011: 38). By comparison, 44 per cent indicated that they found an apology helpful, while the next most popular form of assistance was face-to-face counselling (30 per cent). The results varied slightly by gender. A total of 66 per cent of male respondents specified money as helpful, compared to 56 per cent of female respondents. There was no variance between IndigenousFootnote 4 and non-Indigenous respondents.
Money enables survivors to exercise agency (Dion Stout and Harp Reference Dion Stout and Harp2007: 27). And redress can provide life-changing amounts of money. However, the positive potential of these programmes is balanced by a range of legal and ethical questions. As previously mentioned, the psychological costs of participating in redress can be severe. In every programme with which I am familiar, survivors found the process of getting redress personally difficult. Redress programmes engage with deeply personal, even shameful, experiences. Jim Miller describes Canada’s redress process as ‘traumatic’ and quotes a participating survivor who said that the process made him
relive it [the abuse] all over. I started crying. I couldn’t help it. It was like I was back there again and I had buried it.
The challenges involved go beyond retraumatisation.Footnote 5 For example, privacy demands complicate a programme’s work, affecting how it acquires information about survivors, how it stores that information, and how it disburses payments. Those (and other) large legal and ethical questions inform a range of more mundane policy design issues at the operative and logistical levels. As further illustrative examples, policymakers must decide who the relevant wrongdoers are and what the relevant wrongdoing is. Someone must decide if the programme’s remit should be set by what was illegal at the time of commission or whether to redress historically normal practices, such as corporal punishment. Should the programme focus on injurious acts that occurred when in care? Or should the scope include long-term damage that may (or may not) be linked to injurious care experiences? And who should deliver redress? Is it better to risk impartiality by using the well-resourced infrastructure of a permanent government ministry, or operate independently, at arm’s-length from the offending state? Should the programme be staffed by contract workers, by permanent civil servants, or by survivors themselves? Each of these questions, and others, is difficult to answer, and the decisions made will shape the participants’ redress experiences profoundly.
An Irish care advocate once related an anecdote to me underlining the magnitude of small details. Her story concerned the quality of refreshments provided at investigative hearings in Dublin. When a programme official offered her companion ‘a basic cup of tea that wasn’t decent’, she rejected the overture, insisting that she, and all other survivors, receive a ‘proper biscuit and proper tea’ (IR Interview 9). The anecdote points to the importance of subtle communicative cues: the offer of cheap biscuits implied that survivors did not warrant better refreshments – it was a slighting insult. Such subtleties can be important. The quality of a programme depends, at least in part, on the way it treats survivors and most of a survivor’s experience with a redress programme is made up of such mundane interactions.
To develop better redress programmes, it is important to study existing programmes in depth and critically. This is a difficult and contentious policy domain. While monetary redress provides significant benefits, it is not an all-things-considered good for many survivors. And not all programmes are equal. The aim of this book is to better understand monetary redress so as to help policymakers design better programmes.
1.2 Major Themes and Argument
As a field of public policy, monetary redress for survivors of abuse in care is relatively novel, prominent, and politically sensitive. This section describes two overarching tensions that reappear in different ways in all redress programmes, and what I see as the best strategic response available – the need for flexible, survivor-focussed programmes. These tensions and that strategic response shape the remainder of this book.
The first tension arises from an observation that constitutes my point of departure. I understand state redress programmes as a form of public policy. That perspective illuminates some key problems that these programmes confront. Monetary redress attempts to remedy intimate and grievous injustices, including childhood abuse and neglect, that affect who survivors are as persons. Yet redress policy works through impersonal bureaucracies. Filling out forms and getting redress in accord with regulations interpreted by public officials can be deeply unsatisfying. But the problem goes deeper, embracing the impersonal character of the responding state. In cases of non-recent injury, often the people who ran the institutions and committed the actual abuses are long past any accountability. They are either dead or so elderly and infirm that they cannot discharge their remedial obligations. The state’s vicarious responsibility is a distinctly inferior alternative. The state cannot experience guilt and remorse for past crimes; instead it is impersonated by non-offending officials. As an impersonal process, state redress struggles to satisfy survivors’ demands for accountability. The resulting tensions between the demands of very personal injuries and impersonal public policy are significant and incurable.
A second theme, overlapping at points with the first, concerns tensions between the public and private. The study focusses on state redress because, as public policy, these programmes answer to distinct political demands. However, care institutions operated in interstitial spaces between the public and private. When taking on responsibilities for care (often becoming the survivor’s legal parent), states adopted a role usually associated with the private sphere. Moreover, the state’s involvement in care frequently responded to private concerns of personal morality, such as family separation, alcoholism, and poverty. A comprehensive remedy requires that the survivor’s life history, including their injuries, becomes publicly knowable and subject to public criteria, creating an objective representation of private suffering. Moreover, public values constrain the state’s response to private suffering, yet the values of good public policy, such as efficiency and transparency, often conflict with private remedial demands. To make an obvious point, money spent on state redress programmes must be spent in a way that satisfies the legal requirements for public expenditures, and those public regulations can hamper efforts to meet the private needs and wants of survivors. Redress unfolds within the existing institutional forms of the state. These institutions make redress possible while constraining what it can be. The resulting tensions spill over into another. The survivors’ injuries often flow from invidious forms of collective politics and public policy, yet there is a persistent tendency for redress programmes to convert the collective politics of systemically injurious care into a series of individual private transactions (James Reference James2021: 376).
I argue that the best response to these challenges begins by recognising that trade-offs pervade every redress programme. The fact that redress always involves multiple trade-offs between important values means that the concept of a completely successful redress programme is analytically unhelpful. The non-ideal context of actual public policy involves institutional constraints and systemic wrongdoing, resource scarcities (examples include money and time), and the need to co-ordinate the uncertain judgements and reactions of other agents. These factors mean that every programme will fall short when measured against one or another reasonable value. I think that the best approach to the inevitability of trade-offs is to develop flexible redress programmes that respond to what survivors are able and want to do. Flexibility means different things for different parts of a programme. But, as a general rule, survivors should be able to select the path (or paths) through redress that work best for them. Being responsive to the needs and wants of different survivors is what survivor-focussed redress requires.
1.3 The Scope of the Book
The diverse applications of monetary remedies for injury range across cultures and times, and from the constitutional demands of transitional justice to quotidian responses to everyday setbacks. This book addresses large and recent programmes of monetary payments made to discharge remedial obligations that states owe to individuals as a response to injuries that these individuals experienced while in care as young people. I will sketch the contours of the study by examining the component parts of that statement.
Redress means to repair, to rectify, or to correct. The term can be used quite generically – one might redress a fault in an engine or a problem with grammar. However, because they remedy injuries, the redress programmes that I consider engage moral demands. ‘Injury’ combines a sense of violation with that of a valid claim – to be injured is to be treated in a way otherwise than one has a right to expect.Footnote 6 Examples of injurious acts include sexual, physical, and emotional abuse. Injuring someone in any of these ways creates a (presumptive) redress claim. Injurious acts can lead to consequential harms. I use ‘harm’ to refer to damage resultant from an injury. Some harms, such as psychological disorders, can emerge long after the original injury. When the discussion demands reference to both injurious acts and harms, I use more capacious terms such as ‘injurious experience’. Chapter 2 further attends to these conceptual matters.
Redress aims to rectify an injurious experience by discharging all, or part, of a remedial obligation owed by an offender to the survivor. A remedial purpose distinguishes redress programme from other public policies that respond to need or interest. Since offenders can offer various types of potential remedies, ‘redress’ can refer to a range of remedial measures. Monetary payments are one element within a transnational rectificatory policy genre that includes public inquiries and criminal trials; political apologies and memorials; medical care and psychological counselling; and access to personal records and help with family reconnections. Monetary redress is part of a more complex policy realm. Later, I will argue that monetary redress programmes are best when part of a holistic suit of complementary initiatives. But the work of monetary redress is sufficient to occupy this study. While one cannot lose sight of the larger remedial picture, a narrower focus on monetary redress permits greater analytic depth.
Understanding state redress as a form of public policy highlights the distinct character of states as moral agents. States do things that individuals cannot, such as make laws. Equally, there are things that individuals do that states cannot – I previously mentioned the state’s lack of remorse. Moreover, a focus on redress as public policy directs attention to programmes implemented by the executive branch. Executive delivery is a distinguishing characteristic because these programmes displace the arm of government normally responsible for determining compensation – the judiciary. As Chapter 3 describes, monetary redress programmes develop out of the tort law’s failure to address non-recent abuse claims appropriately. That means redress programmes aim to satisfy legal demands through quasi-legal means.
Monetary redress programmes are a type of alternative dispute resolution (ADR). The ADR genus encompasses a variety of proceedings (for an overview see Macleod and Hodges Reference Macleod and Hodges2017). Redress programmes can be distinguished from their ADR counterparts because in a redress programme the state accepts the liability to pay certain types of claims prior to engaging with applicants. This is an important point. In most judicial and ADR proceedings, liability is the primary matter to be settled, by contrast, redress programmes ‘do not make findings of liability’ (Daly and Davis Reference Daly and Davis2021: 443). Instead, redress involves the state accepting liability for claims that meet a set of prescribed conditions and then inviting applicants to demonstrate that they meet those conditions. This structure, in which responsibility is accepted at the outset of the programme, differs in an obvious and salient manner from proceedings in which a defendant’s liability (if any) is an outcome of the process, not a precondition of it. The discharge of state liability also distinguishes redress programmes from victims-of-crime compensation programmes wherein the state provides a form of public insurance to alleviate injuries for which it does not accept responsibility. Moreover, a focus on state responsibility limits the ambit of the study by excluding wholly non-state programmes. However, the study includes programmes wherein states work with NGOs to deliver redress.
Because it is a study in public policy, the book focusses on large redress programmes, defined as having more than 500 applicants. While governments sometimes make ad hoc remedial payments to individuals, the complexities of administering a large (and often uncertain) number of claimants within a single process pose distinct design challenges. For example, large application numbers create the need to manage a large amount of personal information. Obtaining and managing that information involves substantial burdens for both states and survivors. Indeed, a programme’s informational demands are a significant factor in shaping the way it operates and how survivors experience it.
As a further restriction, the study primarily concerns responses to injurious institutional care. Both ‘care’ and ‘institution’ are contested terms. Many survivors object to describing their experiences as ‘care’, arguing that their systemically injurious experiences did not, and could not, constitute care. Nevertheless, the study focuses on responses to abuse within institutions charged with the care of young persons, even if they manifestly failed to meet that obligation. The term ‘institution’ also deserves brief elaboration. Some of the programmes redress injuries inflicted within ‘total’ residential institutions in which both staff and survivors slept, worked, studied, and recreated (Daly Reference Daly2014: 15–16). Total institutions enclose their residents’ entire life, who rarely experience unmediated contact with the outside world (Goffman Reference Goffman1961). When institutions govern whole lives, residents are made acutely vulnerable. However, while total institutions feature prominently in care leaver histories, redress programmes often encompass a broader range of more or less formal care placements.
Finally, I focus on redress payments for individual survivors. Other policy initiatives respond to large groups or peoples, but here I attend to programmes that address individual human beings. My remit is further limited to redress for individuals who were injured as children or young persons. The United Nations defines ‘children or young persons’ as people below the age of twenty-five (United Nations 2019). Most survivors were much younger when placed in care. Young people have distinct vulnerabilities (see, Johnson, Browne, and Hamilton-Giachritsis Reference Johnson, Browne and Hamilton-Giachritsis2006). As Chapter 2 discusses, injuries inflicted in childhood can have lifelong developmental effects, while their age and legal status at the time of the initial injury can affect the survivor’s present legal options.
In summary, the study addresses large programmes of monetary payments made by states to individual survivors to discharge remedial obligations owed because these survivors experienced one or more significant injuries while in care as a child or young person. That limited ambit enables robust comparisons: allowing ‘like with like’ juxtapositions of different programmes. However, this focus does not limit the study’s broad relevance. Anyone interested in the logistical, political, and ethical challenges of operating large compensation schemes is likely to learn from this book. Significant portions of the discussion are relevant to non-state programmes and the narrow focus on care leavers shapes, but does not eliminate, the discussion’s relevance to other fields. The problems inherent to monetary redress are not restricted to programmes within my scope, which means that the policy challenges I address are likely to arise elsewhere.
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My approach is informed by the historical institutionalist school of thought. It is, therefore, sensitive to the roles played by laws and regulations; norms and conventions; and the authoritative and accountability structures that comprise institutions. Most historical institutionalists engage in causal analysis, but it should be clear that is not my purpose. I explore the institutional forms that constitute redress programmes because they shape what participants do and experience. In short, this study addresses the effects of institutions on both individuals and organisations in the field of redress activity and offers policy recommendations. Informed by scholarship, stakeholder judgements, and my own analysis, the approach is first descriptive and qualitative, then prescriptive.
Institutional outcomes depend on empirical factors. Relevant considerations include the character of the authorising law and regulations; the capacities of participants; their interests, values, and beliefs; and the socio-economic context in which the institution operates (David Reference David2017: 155). To capture those features, the study describes ten exemplar redress programmes from Australia, Canada, Ireland, and Aotearoa New Zealand. Table 1.1 sets out the programmes and the dates during which they accepted applications from survivors.
Table 1.1. Exemplar programmes: information summary
| Country | Programme name1 | Dates applications accepted | |
|---|---|---|---|
| Australia | The Forde Foundation | 2000–[30 Dec 2018]* | |
| Queensland Redress | 1 Oct 2007–30 Sept 2008 | ||
| Redress WA (Western Australia) | 1 May 2008–30 April 2009 | ||
| Canada | Indian Residential Schools Settlement Agreement (IRSSA) | Common Experience Payment (CEP) | 19 Sept 07–9 Sept 11 |
| Personal Credits | 1 Jan 2014–31 Aug 2015 | ||
| Individual Assessment Programme (IAP) | 19 Sept 2007–19 Sep 2012 | ||
| Ireland | Industrial Schools (RIRB) | 1 Jan 2003–17 Sept 2011 | |
| Caranua | 6 Jan 2014–11 Dec 2020 | ||
| Magdalene Laundries | June 2013–[31 Dec 2018]* | ||
| New Zealand | Historic Claims Process (HCP) | 2006–[31 Dec 2018]* | |
* These programmes continue at the time of writing (early 2022). Dates enclosed in square brackets are rough end points for data collection.
1 These are abbreviated names. Chapters 4–7 give more information about each programme.
As Chapter 2 describes, the four countries of Australia, Canada, Ireland, and New Zealand have parallel social histories of abuse in care. These ten exemplar programmes were selected because they are both large and recent, which meant I could interview participants. The exemplar programmes are very different from one another. For example, payment values differ substantially, ranging from a few hundred dollars in Queensland’s Forde Foundation to hundreds of thousands in Canada’s IAP. Seven of the programmes made cash payments to survivors, the other three required survivors to apply for monies that were then paid to third parties. The programmes also vary in terms of the injuries eligible for redress, the number of institutions involved, the numbers of applicants, and the period during which the programme accepted applications. Across these points, and many others, diversity spurs critical reflection and offers learning opportunities.
The exemplars are not case studies in the traditional sense of providing data for testing hypotheses. Instead, information about their operation underpins the design-oriented analysis and recommendations I present in Part III. Knowing a bit about how policy works is an important precursor to advocacy (Mintrom Reference Mintrom2012: 210). Without that knowledge, one risks making recommendations that are infeasible or, indeed, create unforeseen costs. Analysis of contemporary practice can help identify challenges and opportunities that can inform strategic responses.
Further distinguishing my approach from that of the traditional case study, I do not limit my discussion to exemplar programmes only. The study periodically draws from other programmes in Australia and Canada, alongside Northern Irish, Scottish, and Swedish initiatives. Taking what has been called an ‘integrative’ approach (Whittemore and Knafl Reference Whittemore and Knafl2005), I use information from public hearings, reports, regulations, and statutes to provide raw data and operative descriptions. I also draw from survivor testimony and biographies, along with opinion pieces and newspaper articles in combination with an interdisciplinary body of academic literature.
I conducted 240 hours of semi-structured information interviews between November 2014 and July 2017 with stakeholders in the ten exemplar programmes. The sixty-three interviewees were all senior officials or practitioners with experience in redress policy design and/or delivery. With two exceptions, the interviews were audio-recorded and then transcribed. Participants were offered the chance to review and amend the transcripts. Because any informant’s knowledge and perspective is partial, interviews were conducted with experts from different types of organisations. Interviewees came from three general organisation types. Advocate interviewees were representatives of survivor advocacy groups. Service interviewees were drawn from community agencies providing services to survivors. State interviewees were public officials responsible for developing and implementing redress programmes. Some organisations combine functions. Redress programmes operate through networks of mutual reliance; therefore, guarantees of anonymity helped mitigate any concerns for the well-being, both personal and institutional, of interviewees. I cite interview transcripts by country and number, enabling readers to cross-reference more information in Appendix 2, which lists the time, date, and type of interview.
Invitations for interviews were sent to both individuals and organisations identified as potential key stakeholders. I sent organisational invitations to senior managers who might nominate a colleague or participate themselves. For public servants, I often sent invitations to a general contact address before being directed to an appropriate official. Two respondents declined to be interviewed because they did not have appropriate expertise. Logistical difficulties prevented interviews with three respondents. Another refused to participate.Footnote 7 That refusal was a marked exception. Most people and organisations were unstinting and I am very grateful for their generosity in sharing their experience and insights.
Most interviews were around ninety minutes. Many were considerably longer (the longest was nearly seven hours!). Interviews were semi-structured with questions tailored to the participant’s expertise. The interviews concerned the operations of redress programmes and related initiatives, and the effects of those on care leavers and organisations. For several interviewees, contact continued after the original meeting. I was also privileged to join several survivor-oriented events and to visit community centres and other organisations where I sat in on discussions concerning monetary redress. Others provided opportunities for impromptu conversations. These informal discussions are no less important for being unrecognised by citation.
The book has three parts. Part I includes this Introduction, the historical background of Chapter 2, and Chapter 3, which sets out criteria for evaluating redress programmes. Part II describes the ten exemplar programmes, helping ensure that subsequent analysis remains empirically informed. The book’s largest component is Part III. Chapters 8–13 address how programmes are administered; what injuries are eligible for redress; how survivors provide evidence; how evidence is assessed; what support survivors need; and how redress is paid. Each of these chapters concludes with a set of recommendations engaging with problems that emerged in the exemplars. The result is a wide-ranging assessment of monetary redress programmes that indicates where and why difficulties arise and what policymakers can do in response.
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Keith Wiffin continues to work towards a better redress programme for Aotearoa New Zealand. The difficulties involved in designing a better approach are part of the reason he has spent decades as an advocate. By recognising those difficulties and outlining some strategies for engaging with them, I hope this book can help policymakers like Wiffin. Better redress programmes enable survivors to resolve meritorious claims through processes that are impartial and fair, efficient and accessible, and protect their well-being while providing the support they need to participate. At the same time, redress programmes must offer states an effective and efficient means of discharging their remedial responsibilities. Those demands conflict. Not only do the interests of states and survivors clash, diversity among survivors means that they gain differing benefits from redress and confront different costs in its pursuit. Because the salience of the resulting trade-offs varies for different participants, I advocate flexibility. Flexibility is key to optimising in a policy domain marked by pervasive conflict. But before beginning that argument, I need to describe the injuries that redress programmes seek to remedy. That is the task of the next chapter.
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