Anthony Grant
In A B&C v D&E [2024] NZHC 161 (the ‘Alphabet’ case) the Supreme Court held it was “not possible to overstate the adverse impact” that a father’s “abuse has had on [his children] both during their childhood and as adults”.
The Supreme Court’s response to this conduct was to say that the children had no rights of redress as the law of fiduciary obligations was not able to provide a remedy. The judges said any changes that might be made to the law of fiduciary obligations to assist the children would lead to so much uncertainty that it is not practical to change the law.
This finding can be contrasted with the government’s response to the recommendations of the Royal Commission of Inquiry into Abuse in State Care. The government announced a few days ago that it will budget $774 million in this year’s Budget to provide redress to the huge number of people who were abused while in State care between 1950 and 1999.
The commission estimated that during that time, 200,000 people were abused. In many cases, the abuse was horrific, including the use of rape as a form of punishment.
The harm was not confined to what happened during their incarceration but often extended into their adulthood. The commission reported that a high proportion of the children who had been in state residential care went on to serve a criminal custodial sentence later in life.
The commission says in one of its reports that the people who suffered in this way “were abandoned … by the laws … that were meant to protect and care for them”.
These obviously include the laws concerning fiduciary obligations.
The government’s reaction to the commission’s finding is not to follow the Supreme Court’s decision and say 200,000 people have no right of redress. At this stage, only those who suffered the “most egregious” abuse will receive monetary payments and the average redress payment for new claims is being increased to $30,000.
Why is the government paying $774m to people who, in accordance with the Supreme Court’s decision, have no right of redress for the terrible wrongs they have suffered?
I suspect that all MPs who vote in favour of the redress regime know it is morally right that people who have been cruelly harmed by the state should be compensated by the state for the harm it has caused them, no matter how deficient the state’s laws of fiduciary obligations may be.
Anthony Grant is an Auckland barrister and trustee specialising in trusts and estates. He is a member of The Law Association’s Trust Law Committee
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