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,

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

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.

***

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.

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.

***

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.

2.1 Introduction

Every care leaver has a unique history. Some were treated well, while others suffered dreadfully. Most experienced a mix of the good, hurtful, and indifferent that is humanity’s usual lot. However, amidst that variance was systemic abuse and neglect. The Australian Senate describes ‘wide scale unsafe, improper and unlawful care of children’ (Senate Community Affairs References Committee 2004: xvi). Ireland’s Ryan Report found that ‘violence and beatings were endemic within the system’ (Ryan Reference Ryan2009a: 20). Similarly, Canada’s Truth and Reconciliation Commission (TRC) found ‘institutionalized child neglect, excessive physical punishment, and physical, sexual, and emotional abuse’ (The Truth and Reconciliation Commission of Canada 2012: 25). Those descriptions are characteristic of every major report on care experiences in the last two decades.Footnote ¹ There are, of course, differences – absconding children froze to death in Canada, not Australia. Still, the overall similarities are strong. Around the world, underfunded and underregulated care systems injured young people thought inferior by virtue of their ethnicity, class, perceived morality, or receipt of charity (Ferguson Reference Ferguson2007).

Reflecting on evidence from Australia, Canada, Ireland, and New Zealand, this chapter outlines some of the injuries that survivors experience(d). Not all redress programmes respond to the same injuries; I will later argue that programmes should have pathways distinguished by the type of injuries they redress. To help set up that argument, this chapter introduces distinctions between injurious acts and their consequences; between interactional and structural injuries; and between individual and collective injuries.

2.2 Problems with History

Institutional out-of-home care was a nineteenth-century response to changes wrought by colonisation, urbanisation, industrialisation, and the expanding demands of capitalism. By the beginning of the twentieth century, the relevant states had assumed legal responsibility for all children in out-of-home care; however, they often delegated primary care responsibility to third parties. Although only public authorities could legally take a child into care, in practice, family, religious, and community figures put people into care without regard for the law. The survivor might, therefore, never be legally recognised as a ward of the state. And once placed in a care facility, residents were submerged in systems in which they had little voice and less agency.

Some young people resided in foster homes that mimicked a nuclear family. Other residences were associated with agricultural labour, often on private farms. Survivors might live in cottages or group homes in which one or more care staff supervised a small number of young people. Several cottages could constitute a larger complex. For example, in 1961 the Retta Dixon Home in Australia’s Northern Territory had eight six-bedroom cottages, accommodating a maximum of eighty residents (Royal Commission into Institutional Responses to Child Sexual Abuse 2015c: 15). Although group homes, farm stays, and foster care were usually preferred, considerations of cost and public convenience meant that many care leavers resided in large institutions. These included residential, industrial, therapeutic, and farm schools, along with orphanages, borstals, reformatories, and psychiatric hospitals. Those institutions could house hundreds of residents and were often operated by charitable societies or religious orders. Bigger institutions often get more public attention – four of the inquiry reports cited in this chapter attend only to large institutions (Forde Reference Forde1999; Quirke Reference Quirke2013; Ryan Reference Ryan2009a; The Truth and Reconciliation Commission of Canada 2015e).

Being in care meant occupying a marginal social and legal status, and the quality of the historical record reflects that low standing. Redress programmes need information about the survivors’ care experience. Every programme confronts major challenges arising from the poor quality of information now available about people when they were in care. There is an ever-growing wealth of care histories, the most notable include the reports published by large public inquiries (see Footnote footnote 1 in this chapter). These reports are authoritative sources of information, providing impetus for establishing redress programmes and evidence for their operations. However, all care history ultimately depends on two major information sources – historical records and present testimony. Both forms of evidence create such difficulties that even basic facts become contestable.

Written records are a major source of evidence in redress. But their poor quality, absence, and incompleteness serve as impediments (Fawcett Reference Fawcett2009). Privacy laws impede access, and relevant records are often dispersed across different institutions and organisations, both public and private. If they still exist, those institutions have often changed their names, constitutions, and locations. It is hard to find records; even their present holders may not know what records they have or what they contain. To illustrate the difficulties, Ireland’s Ryan Report states that 170,000 people were legally resident in the industrial schools and potentially eligible for redress from the Residential Institutions Redress Board (RIRB) (Ryan Reference Ryan2009b: 41). But the RIRB worked with a much lower figure: it counted 41,000 care leaver records (Private Communication from Theresa Fitzgibbon of the Residential Institutions Redress Unit, 31 August 2015). Later analysis would suggest that the real figure was lower still – around 37,000 (O’Sullivan Reference O’Sullivan and Meade2015: 203). In 2019, the Ryan Commission revised its estimate to ‘approximately 42,000 or somewhat higher’ (Ryan Reference Ryan2019).

The number of care leavers is a basic fact. Uncertainty regarding that fact makes it difficult for a redress programme to estimate the number of survivors it needs to work with. Further uncertainties compound the problem, as policymakers will not know the prevalence of differing injuries; the survivors’ post-care mortality rates; whether or not living survivors will learn of the redress programme; and, should the survivor be injured, alive, and know to apply, if they will actually lodge an application. The unsurprising result is that programmes often wildly misestimate expected application numbers.

For survivors, records access provides information about their early lives and family members. Records access is also necessary to identify and correct errors, and, for Indigenous peoples, control over their data is part of sovereignty (Golding et al. Reference Golding, Lewis, McKemmish, Rolan and Thorpe2021: 1637; Kukutai and Taylor Reference Kukutai, Taylor, Kukutai and Taylor2016). However, archival practices reflect what was thought useful at the time. That rarely included information about the survivors’ daily life in care. The lack of information reflects both the low value placed upon survivors and the semi-private nature of care. When the primary carer was a private individual, records are usually very different in quality and kind when compared to the more formal records of large institutions. Many records were (and are) private property and were destroyed when agencies culled their archives. Some records disappeared when institutions ceased to function. Destruction could also be accidental as flood, fire, and the accidents of time ravaged neglected archives. Canada’s TRC devotes two chapters to the inordinate number of fires in residential schools that often destroyed files held on site (The Truth and Reconciliation Commission of Canada 2015c: chapter 38; 2015d: chapter 18). What remains is often meagre, reflecting historical understandings of care as shameful and best concealed. The private lives of young people in care often went unrecorded – no one took photos of them or documented their experiences (Battley Reference Battley2019).

***

Testimony is the second major source of evidence for care histories. Testimony offers information about the direct experience of care and provides historical accounts with authenticity. Providing otherwise unavailable information, the use of testimony in official reports gives survivors voice in the telling of their own stories. Having their words in print enables survivors to see their accounts publicly acknowledged as true. It also provides otherwise bulky bureaucratic reports with human interest as private memories, long thought shameful, are now eagerly sought by inquiries that honour those who produce the most appalling accounts. But testimony also presents the historian with problems, including bias. Sweeping claims about the nature of care are often supported by quotations that might not reflect general experience. The survivors who choose to testify before commissions of inquiry are a self-selected minority, whose experiences may be unrepresentative. For example, a 2014 hearing in Perth for the McClellan Commission heard testimony from eleven survivors, of whom ten had received the maximum payment of AUD$45,000 from Redress WA.Footnote ² Yet Redress WA provided maximum payments to only 20 per cent of validated applications, and not all survivors got redress. The survivors who testified experienced the worst forms of abuse and had the resources needed to obtain commensurate settlements – a rare combination.

Public inquiries respond to that methodological problem by drawing on testimony provided by survivors in private sessions and submissions. However, again they confront bias. Chapter 10 addresses the accuracy of testimony; here I attend to the structuring role played by its collection. Most inquiries enable individual survivors to relate their experiences of care and its consequences to a commissioner in a private session. These private sessions are relatively short. Most last less than two hours and survivors rarely have more than one session. Not only do time limits impose hard restrictions on what can be said, inquiries cue survivors with template narratives (Niezen Reference Niezen2016: 928). Survivors are told to expect and produce graphic testimony about terrible abuse. For example, New Zealand’s Shaw Commission instructed survivors to

The support these inquiries provide – including facial tissues, emotional respite areas, and therapeutic workers – indicate that testimony will (and should) be traumatic. Those expectations shape testimony. Survivors who did not have a traumatic experience may choose not to speak. And when survivors speak, they may accentuate that which they think matches everyone’s expectations. My point is not to cast doubt upon their testimony; instead my point is that the collection method(s) affects the available information. The inquiries that inform public understandings of care histories are not exceptions to that broadly recognised rule. And further procedural considerations bear reflection. Commissions of inquiry are limited by available information, as well as their resources, remits, and research methodologies (Scraton Reference Scraton, Gilligan and Pratt2004). Their work is further shaped by the inquiry’s pragmatic needs for information, services, and funding; its need to encourage stakeholder participation, including those who might be comprised by the inquiry; and its need to do (and not do) what will encourage governments to act on its recommendations. All those considerations affect the evidence available to redress policymakers.

2.3 Survivors’ Injuries

Historical uncertainty shapes how redress programmes operate. Nevertheless, programmes need to decide what injuries will be eligible for redress and how to apportion monies to different types of injury. Most programmes distinguish between injurious acts and their post-care consequences. Injurious acts include abusive events, such as physical blows, sexual touching, or medical mistreatment, while consequential damage is harm that results from injuries suffered in care. The act/consequence distinction is commonplace, but a better understanding of redress requires two further distinctions: between the interactional and structural causes of injuries, and between individual and collective forms of injury. Those distinctions are analytic. Neither the act/consequence, the structural/interactional nor the individual/collective distinction sort all of the survivors’ complex injurious experiences into unique categories. Instead, these distinctions help reveal the complexity of those experiences and inform later analysis.

Catherine Lu distinguishes between interactional and structural injuries according to their causes (Lu Reference Lu2017: 33–34). Interactional injuries arise from wrongful interpersonal acts, while structural injuries derive from social practices and institutions. Often taking conventional forms, structural injuries are perpetrated as people implement processes, follow rules, and apply norms. To illustrate the interactional/structural distinction, a responsible adult who refuses to permit a child to get needed medical treatment commits an interactional injury. But that failing could have a structural aspect if it results from budget decisions that, when combined with social norms and staffing difficulties, create an environment where disease is rife and treatment difficult. Canada’s TRC argues that poor diet and sanitation, overcrowding, and the lack of appropriate isolation facilities aggravated the tuberculosis that killed thousands of Indigenous children (The Truth and Reconciliation Commission of Canada 2015b: 378f). Those are structurally caused injuries, experienced by individuals.

Many injuries have both structural and interactional aspects. Diane Chard describes a physical assault by two staff members in New South Wales as follows:

It is easy to read this assault as an interactional injury. But its structural aspects are equally important. Chard’s assailants were staff members operating within an institutional power dynamic. Structural power disparities often shape abuse. Not only were there distinctions between staff and residents, there were also informal hierarchies between residents. For example, Queensland’s Forde Inquiry was told that ‘most of the older boys in Westbrook [Training Centre] had a smaller boy who would act as their “girlfriend” and have to submit sexually’ (Forde Reference Forde1999: 132). Those informal structures could interact with formal aspects of the institution when institutional staff condoned bullying or used bullies to help keep order.

Wherein cause distinguishes interactional and structural injuries, the difference between individual and collective injuries concerns the nature of the injured party. Many survivors experienced their first care-related injury when they were wrongfully removed from their family. That injury has both individual and collective aspects. Not all removals are injurious. Young people entered care for a variety of reasons. Some were orphans. Others had parents who could not, or would not, care for them, and some parents surrendered their children voluntarily. But other children were wrongfully taken into care. Canadian and Australian reports document the genocidal removal of Indigenous children – a clear example of a collective injury (The Truth and Reconciliation Commission of Canada 2015e; Wilson and Dodson Reference Wilson and Dodson1997). But forced removals were not restricted to Indigenous populations; women housed in Ireland’s Magdalene asylums were prohibited from keeping children with them. Prejudice against the needy, the working classes, and minority religions and ethnicities underpinned systemic wrongdoing (Swain and Hillel Reference Swain and Hillel2017). If the person, or their family, was poor, disabled, itinerant, homeless, unmarried (either ‘fallen’ or widowed), Indigenous, unemployed, alcoholic, or criminal, that could justify taking a young person into care. Those removals injured individual young people. They also collectively injured their families, communities and, in the case of Indigenous survivors, their peoples.

***

Once in care, survivors could experience a range of differing injuries. Redress programmes often distinguish between physical, sexual, and psychological/emotional abuse. These injuries can have both individual and collective aspects, and interactional and structural causes. A single act can co-create different forms of abuse – to experience sexual or physical abuse usually entails an emotional assault. Despite the public attention paid to physical and sexual abuses, Joanna Penglase argues the worst abuse was psychological (Penglase Reference Penglase2007: 142–43). Lost Innocents echoes her judgement, quoting a Victorian survivor saying, ‘the main abuse was psychological’. Survivors were persistently told, ‘“You’re no good.” “You will never be any good.” “You will amount to nothing”, that sort of thing’ (Senate Community Affairs References Committee 2001: 83). Survivors were degraded by staff who told them that they were worthless and inferior or offered racist insults. From a structural perspective, frequent abuse contributed to psychologically injurious environments. Young people need environments of security, affection, and love. However, many care leavers were forced to live with their abusers in environments where violence and humiliation were normal.

Survivors were subject to systemic attacks on their personal and cultural identities. A basic depersonalisation technique was renaming. Many institutions assigned numbers to residents (religious institutions might use saints’ names) to sever survivors from their birth families and cultures. Survivors might be falsely told that their parents had died or that they had been abandoned. Siblings were split up and young people were assigned false birthdates and birth locations and given false information about their family (The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 30, 250). The ethnicity of many Indigenous children was hidden (The Truth and Reconciliation Commission of Canada 2015b: 143; Ministry of Social Development 2018c: 7). Indigenous residents were denied cultural knowledge and skills and those who attempted to speak Indigenous languages might be subject to punishment.

Carers would also hide efforts by birth families to contact care recipients. I met one New Zealander who spent her childhood believing that she had been abandoned, but learnt as an adult that social services had consistently blocked her birth mother’s efforts to contact her (England Reference England2014: 23). Family contact might depend upon good behaviour (Stanley Reference Stanley2016: 74). In other cases, parents and family were denied access (Senate Community Affairs References Committee 2004: 17–18; Ryan Reference Ryan2009a: Volume 1, p. 38). Many survivors were trafficked internationally (Child Migrants Trust 2018). Canada received the largest number of British migrant children, with approximately 100,000 arriving between 1869 and 1932 (Library and Archives Canada 2018). Others went to Australia, New Zealand, and elsewhere. Survivors often moved between different residences. In New Zealand, some experienced ‘as many as 40 or more’ placements (Henwood Reference Henwood2015: 13). Change might be sudden and disruptive. Residential instability was itself injurious as young survivors had existing relationships abruptly severed or were denied opportunities to form long-term caring relationships (Turner et al. Reference Turner, Beckwith and Duschinsky2019).

Disciplinary systems inflicted physical abuse. Physical abuse included slaps, punches and kicks, assaults with weapons, and forcing residents into painful positions, such as kneeling, for long periods. Disciplinary assaults could be inflicted by staff and peers.

Punishment-as-psychological abuse included long periods of isolation. ‘They used to lock us up in a little room like a cell and keep us on bread and water for a week if you played up too much’ (Wilson and Dodson Reference Wilson and Dodson1997: chapter 10). Every major report includes descriptions of extreme shame-based discipline techniques, including enforced public nudity. For example, a child who urinated in their bed might be beaten while nude, forced to wear nappies, or made to wear the soiled bedding (Senate Community Affairs References Committee 2001: 84). ‘With few exceptions, the arrangements for handling bed-wetting were described as inducing fear and terror on a constant basis’ (Ryan Reference Ryan2009c: 59).

Structural underfunding contributed to malnutrition, poor quality accommodation, and inappropriate clothing. In Ireland’s industrial schools, ‘malnourishment was a serious problem’ (Ryan Reference Ryan2009a: 23). In Australia, ‘[n]umerous accounts were given of children always feeling hungry’ (Senate Community Affairs References Committee 2001: 85). In some cases, the food was plain or unappetising. In others, hunger caused survivors to steal food or provide services to those who would feed them. Poor clothing and housing was normal. Survivors frequently describe having to wear ragged, ill-fitting clothing that stigmatised them (Senate Community Affairs References Committee 2004: 90). And ‘[t]he physical infrastructure of missions, government institutions and children’s homes was often very poor’ (Wilson and Dodson Reference Wilson and Dodson1997: chapter 10). Dormitories were cold, draughty, and unsanitary. ‘Many survivors recalled not having enough blankets at night’ (Royal Commission into Institutional Responses to Child Sexual Abuse 2017b: 65). In 1923, the Canadian Indian agent G. S. Pragnell noted:

Poor nutrition, bad clothing, and unhealthy accommodation contributed to high levels of illness and injury. Medical treatment could be rudimentary, with undiagnosed illness and injuries left to heal (Ryan Reference Ryan2009c: 98). Poor dental care led to persistent oral health problems (Senate Community Affairs References Committee 2004: 111). In some cases, residents were subject to medicalised assaults, with staff inflicting unnecessary genital inspections, electroshock therapy, and involuntary sedation (Royal Commission into Institutional Responses to Child Sexual Abuse 2017b: 73; The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2020b: 73). Some survivors were subject to medical experimentation, including vaccine and hormone trials.

Structural underfunding encouraged the use of residents for labour, either within the institution or by hiring them out. Contemporaries believed that labour enabled young people to learn usable skills, defray the costs of their upkeep, and contribute to the community. Labour was often disguised as practical education (The Truth and Reconciliation Commission of Canada 2015c: 132ff). Male residents would be taught construction, agriculture, and light industry by working as builders, farmers, and fabricators. Females would launder, tailor, do beadwork, or care for younger residents. Young labourers experienced high rates of work-related injuries (Senate Community Affairs References Committee 2001: 88). Many survivors describe their experiences as slavery. In the words of one Australian, ‘“Foster care” meant being “farmed” out as [a] temporary worker. I was sent to those who needed a slave & a slave I was’ (Senate Community Affairs References Committee 2004: 121).

The failure of care systems to identify and investigate injurious practices was an underlying structural injury. To prevent exposure, carers might control residents’ contact with outsiders. External inspections might be ‘carefully stage-managed’ (Senate Community Affairs References Committee 2004: 178) with institutions notified in advance so that they could manage the intrusion (Ryan Reference Ryan2009a). External visits might occasion better food and clothing, accompanied by warnings against ‘informing’. When social workers visited the Parramatta Training School for Girls in New South Wales, the ‘superintendent told girls to keep their mouths shut and say that everything was fine’ or risk the consequences (Royal Commission into Institutional Responses to Child Sexual Abuse 2014b: 5). Institutions developed customs and habits that normalised abuse (Parkinson and Cashmore Reference Parkinson and Cashmore2017: 89). While each jurisdiction received numerous reports describing the abuse and neglect of survivors, these rarely resulted in effective responses. For example, a 1956 investigation into charges of sexual abuse against the principal of Saskatchewan’s Gordon’s School was neither independent nor impartial; it was carried out by a subordinate teacher, who exonerated his superior (The Truth and Reconciliation Commission of Canada 2015a: 104). Medical staff might be similarly inclined. In Ireland, ‘[t]he area of neglect in healthcare most frequently reported by witnesses was the absence of investigation into the cause of non-accidental injury’ (Ryan Reference Ryan2009c: 98). A lack of effective systems for identifying and investigating abusive behaviour permitted abusers to operate with impunity (Ministry of Social Development 2018c: 7).

***

The consequences of care are as variable as the individuals who experienced it. Many care leavers live full and successful lives. For others, damage resulting from their care experiences includes illness and unemployment along with broken family and community relationships (Golding and Rupan Reference Golding and Rupan2011: 8–9, 25). Not only does consequential damage offer potential grounds for a redress claim, it affects how survivors interact with redress programmes and, as a result, how those programmes operate (Lundy and Mahoney Reference Lundy and Mahoney2018: 273). This final section surveys some of the more common injurious consequences experienced by care leavers as both individuals and groups.

Difficulties with personal relationships are among the most widespread injurious consequences of abuse in care. Denied secure loving relationships as children, many care leavers did not develop the ability to build mature relationships as adults (Cloitre, Cohen, and Koenen Reference Cloitre, Cohen and Koenen2006: 6–8; Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 1–2; Stanley Reference Stanley2016: 155). A recent study found that up to 90 per cent of maltreated children have ‘insecure attachment patterns’ (Van der Kolk Reference Van der Kolk2017: 376). Problems with anger management, mistrust, and social skills hamper relationships with spouses and children. Many survivors are socially isolated, which can be psychologically injurious and a risk factor for other negative outcomes. Survivors who were depersonalised or trafficked lost contact with some or all members of their family. Some survivors became abusers, including abusers of other survivors, meaning that redress programmes cannot sharply distinguish survivors from offenders (The Truth and Reconciliation Commission of Canada 2015c: 414). Abuse can have criminogenic consequences. Criminal employment does not depend upon educational qualifications and strong prosocial skills, which is one reason gang membership is an attractive survival option for survivors who were ill-prepared for life after care (Henwood Reference Henwood2015: 25). Both within institutional care and then once released, criminal gangs provided survivors with identities and social groups (Stanley Reference Stanley2016: 140–43; The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2020b: 92). For many, lifetimes of alienation and rejection contribute to feelings of distrust towards any authority.

The injurious consequences of miseducation include high rates of illiteracy and innumeracy that operate alongside psychological difficulties to impair the survivors’ remunerative prospects (Fernandez Reference Fernandez2016: 232). As the Australian survivor Roger Matthew (a pseudonym) relates,

Many survivors experience difficulties in holding down jobs or maintaining long-term employment. A survey of Queensland survivors found that 18 per cent ‘regarded themselves as poor or very poor’, which was six times the rate for other Queenslanders (Watson Reference Watson2011: 3). Another 46 per cent said they were ‘just getting along’, the comparative number in the general population was 26 per cent.

Compounding social and economic marginalisation, abusive care experiences are associated with collectively higher morbidity (Anda et al. Reference Anda, Felitti and Bremner2006; Brennan Reference Brennan2008; Chartier, Walker, and Naimark Reference Chartier, Walker and Naimark2010; Evaluation, Performance Measurement, and Review Branch: Audit and Evaluation Sector 2009; Felitti Reference Felitti2002; Ferguson Reference Ferguson2007; Fuller-Thomson and Brennenstuhl Reference Fuller-Thomson and Brennenstuhl2009; Higgins Reference Higgins2010; Llewellyn Reference Llewellyn2002; McEwen and Gregerson Reference McEwen and Gregerson2019). Poor medical and dental care can cause or aggravate physical health problems later in life. Survivors are more likely to have long-term difficulties with addiction and substance abuse and more likely, than non-care leavers, to attempt suicide (The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2020b: 24). More generally, the socio-economic disadvantages experienced by many survivors contribute to mental and physical illness while simultaneously inhibiting effective treatment.

From a structural perspective, survivors’ experiences of harmful consequences intersect with existing social injustices. For example, a lack of mental health services combines with discriminatory social norms regarding mental illness to compound the difficulties survivors have with psychological disorders. And care leavers often experience clusters of disadvantages, as health and personal issues combine with educational deficiencies and poverty to reinforce marginalisation (Watson Reference Watson2011). Damage can be intergenerational if survivors did not learn how to be good parents. Often the children of survivors follow similar paths and families can comprise three or four generations of survivors (Evaluation, Performance Measurement, and Review Branch: Audit and Evaluation Sector, 2009: 45; Ministry of Social Development 2018c: 8). Some studies suggest that high stress experiences in systemically injurious care environments can alter the expression of genes that govern hormonal stress responses in ways that affect parenting behaviour (Van Wert et al. Reference Van Wert, Anreiter, Fallon and Sokolowski2019). The research on epigenetics is contested (Carey Reference Carey2018), but it is clear that the negative effects of care ‘can be lifelong and profound’ (Independent Inquiry into Child Sexual Abuse 2018: 73). Survivors experience pervasively injurious effects that provide grounds for compensation, while at the same time making it hard for many to engage with redress programmes.

***

The major inquiry reports in the exemplar jurisdictions all tell remarkably similar care histories. Despite chronic historical uncertainty, they underline general patterns of structurally injurious care practices. These practices were a consequence of poor regulation and underfunding which, in turn, meant that survivors experience(d) systemic injurious acts and consequences with interactional and structural causes, and individual and collective effects. Although survivors are individually diverse, as populations they are severely marginalised. These disadvantages, as later chapters emphasise, shape how monetary redress programmes operate. They also provide a foundation for a common set of normative standards applicable to any redress programme. Those standards are the next chapter’s subject.

3.1 Introduction

Redress programmes exist because courts are inhospitable to survivors’ non-recent claims. But if redress is to be better than litigation, it must be made so. Judging what makes better redress programmes requires evaluative criteria. The basic structure of redress involves, at minimum, four components: two agents (an offender and a survivor), and two forms of justice (substantive and procedural). Practically relevant evaluative criteria must engage all four. These criteria must reflect participants’ interests and values, be realistic about their capabilities, and sensitive to the constraints they face.

It is easy to find works on what survivors want or need from redress (e.g. Lundy Reference Lundy2016; National Centre for Truth and Reconciliation 2020). As Chapter 2 describes, survivor populations are diverse, yet characterised by lower-than-average numeracy and literacy rates; high rates of morbidity and disability, including mental health; and high rates of poverty and homelessness. These disadvantages work together to impede access to both litigation and redress programmes. To help policymakers create accessible programmes, this chapter engages with the United Nations’ survivor-focussed Van Boven/Bassiouni Basic Principles (the VBB Principles) to outline what a fair, impartial, and effective redress programme entails (General Assembly of the United Nations 2006).

Although essential, a survivor-focussed approach is not enough. The interests of all participants are relevant. Few works on redress attend to the offending states’ distinctive interests or the constraints they confront. Unlike survivors, states are neither individuals nor groups: they are not even human. States are pluralistic institutional agents whose actions are carried out by officials. The state’s distinctive nature affects applicable evaluative criteria. For example, redress programmes position the state as both offender and sovereign; discharging remedial obligations while, at the same time, exercising the state’s ultimate responsibility for deciding what justice will be done – this is one way the agents who transact redress are not equals. More prosaically, unlike human offenders, redress programmes manage hundreds, if not thousands, of claims. Feasible criteria need to recognise that, for states, delivering redress is part of business as usual.

Conflicting interests further complicate the process of identifying acceptable evaluative criteria. For example, the survivors’ interest in getting redress quickly confronts the state’s need to take time to assess their claim. Participants’ interests can also conflict with third parties – such as the natural justice claims of alleged perpetrators. Moreover, participants can confront internal conflicts – some procedures, such as evidentiary interviews, can be good for survivors in some ways and bad for them in others. The resulting problems are deep-seated. Good criteria can be endorsed by all stakeholders, they must be reciprocally justifiable. But human diversity means that people have different interests in how redress will operate. That deep-seated potential for disagreement provides a cornerstone for the argument that better programmes enable survivors to choose how they will pursue redress.

3.2 Survivors’ Interests

Litigation is the default option for most survivors seeking justice, but the challenges it poses are so unpleasant that most survivors never file in court. A detailed discussion is not necessary for my purposes, a nine point outline will suffice.Footnote ¹ First, protracted litigation for non-recent cases can take many years. Second, the costs of legal and other professionals make litigation too expensive for most survivors. Third, litigation risks harming survivors, both psychologically and with respect to their privacy, without supporting them to cope with either harm. Fourth, many survivors have claims for wrongdoings that were not tortious when they were performed, which no court can remedy. Fifth, litigation requires the plaintiff to demonstrate that the offender’s wrongful acts are the proximate cause of their injuries, yet survivors suffer structural injuries and consequential damages with diffuse causal origins. Sixth, the evidence for non-recent injuries is often weak, with few documents and witnesses. Seventh, survivors seeking evidence held by states or third parties are hindered by the adversarial process of litigation. Eighth, limitation defences in statute, common law, and equity bar most non-recent claims. Ninth and last, offending institutions may no longer exist or are structured in ways that hide assets and evade liability.

These hurdles represent significant barriers for all but the most exceptional survivors. And the few survivors who succeed at litigation are not clear exemplars to follow. For example, Bruce Trevorrow was wrongfully taken into care by South Australia in 1957. In 2007, Trevorrow won the first case for wrongful removal (and sundry other claims) by a member of the Stolen Generations (Trevorrow v. South Australia 2007). Trevorrow’s case was exceptionally strong, including documentary evidence that he was taken into care unlawfully. Most survivors will not have such evidence. Moreover, the litigation process inflicted ‘enormous psychological and emotional trauma’ on Trevorrow (‘Official Committee Hansard’ 2008: L&CA 16). Trevorrow died in 2008, two years before the Supreme Court of South Australia dismissed the state’s final appeal.

***

The VBB Principles respond to these difficulties by setting out the survivors’ high priority justice interests and recommending how states should act to avoid or mitigate common problems. The VBB Principles derive from a decades-long global consultation process, are endorsed by the UN General Assembly, and are used by courts and advocates (Akashah and Marks Reference Akashah and Marks2006). In short, the VBB Principles are the best and most authoritative guide available. However, the Principles were not written for survivors of injurious care: spurred by the development of transitional justice, they address ‘gross violations of international human rights law and serious violations of international humanitarian law’ (General Assembly of the United Nations 2006: Section 3 (III)).Footnote ² No redress programme for survivors of injurious care is confined to gross violations of human rights law. Moreover, the Principles are a somewhat disorganised collection of injunctions, guidelines, principles, definitions, and considerations: they require some interpretation. I divide the VBB Principles into procedural and substantive considerations. With regard to procedure, the Principles require ‘fair and impartial access’ to justice, while their substantive remedies include ‘full compensation’. The remainder of this section develops these criteria.

I address impartiality first. Impartiality requires insulating redress procedures from arbitrary considerations. Whereas courts institutionalise their independence from other organs of government, state-run redress programmes are always at risk of being partial when the offending state acts as an investigator, adjudicator, and defendant. Independence is key to securing impartiality and encouraging survivors to participate (Stanley Reference Stanley2015: 1155). Illustrating best practice, Ireland’s RIRB lodged responsibility for the redress programme with an independent tribunal that was led by adjudicators with secure appointments and budgets. Moreover, it adjudicated claims using publicly available regulations and produced written judgements that were subject to review. It was, in effect, an independent quasi-judicial body.

Because fairness entails the like treatment of like claims, the VBB Principles prohibit ‘discrimination of any kind or on any ground, without exception’. Non-discrimination bars arbitrary distinctions between eligible and ineligible claims. Similarly, non-discrimination favours procedural consistency: other things being equal, similar claims and claimants should not be treated differently. Redress programmes may prove less discriminatory than litigation, the outcomes of which depend upon luck in evidentiary quality and the claimant’s resources. Moreover, transparent operations are needed for redress programmes to be seen as non-discriminatory.

Fairness includes the survivors’ interest in having ‘relevant information concerning violations and reparation mechanisms.’ A fair measure of transparency requires survivors to know how to obtain redress, including how programmes will assess claims. That transparency enables survivors to know if a programme makes an error and seek a remedy through a review procedure. Moreover, fairness may require redress programmes to use more relaxed evidentiary standards and non-justiciable forms of evidence, such as hearsay and ‘similar fact’ evidence.Footnote ³ Fairness also requires redress procedures that are not biased on gender, cultural, or other grounds. The demands of fairness are comprehensive, including how programmes are staffed and advertised, how evidence is collected and assessed, and how payments are made.

Fairness considerations also include how survivors are supported. A proceeding against the state places survivors in a profoundly unequal contest. The temporal, financial, and human resources of the immortal state are nearly unlimited. States use these advantages to exhaust survivors through protracted litigation – recall that his ten-year-long case had not finished before Bruce Trevorrow died. The VBB Principles stipulate that redress should be ‘prompt’ and unimpeded by unnecessary delays. Expertise and knowledge are other inequitably (unfairly) distributed resources. States have legal, archival, and other professional staff who enjoy the subtle advantages of repeat players (Reuben Reference Reuben1999: 1065). Whereas survivors usually participate in only one case (their own), the state employs experts who conduct hundreds of cases, enabling its officials to develop personal relationships, cultivate reputations for credibility, and learn from experience. The state’s further advantages include control over, and access to, archived evidence. In response, the VBB Principles require ‘proper assistance’ for survivors, including expert archival, medical, and legal support. Access to counsel is particularly important in redress programmes that require survivors to present complex evidence or make important decisions quickly. The VBB Principles’ demand for ‘effective access’ to justice vindicates simple low-cost programmes that require all stakeholders to volunteer pertinent information, such as relevant documents, records, or prior findings of criminal activity.

A fair proceeding protects the well-being of survivors. The VBB Principles stipulate that ‘appropriate measures should be taken to ensure [the survivors’] safety, physical and psychological well-being and privacy…’. Under cross-examination, survivors risk serious psychological damage, including retraumatisation. Redress programmes must minimise these risks and support survivors who are harmed in the process; the Principles suggest that survivors should not bear the costs of the support they need. Turning to privacy, specific forms of abuse may be humiliating and many survivors understand their experience of out-of-home-care as shameful (Emond Reference Emond2014; Sheedy Reference Sheedy2005). Survivors should be treated with sympathy and respect throughout the process and their private data protected.

My survey of the survivors’ interests in procedural criteria concludes with a value that the VBB Principles do not explicitly address: the survivors’ interest in participation. Litigation disempowers survivors, who have little control over, or involvement in, much of the judicial process. By contrast, redress programmes respect survivors as agents when they create opportunities for survivors to participate (Waterhouse Reference Waterhouse2009: 270; Lundy Reference Lundy2016: 31; Murray Reference Murray2015: 178–79). Survivors should participate in several domains. In the first instance, survivors can co-design redress programmes, thus shaping policy at the formative stage. Second, they can be involved in delivering redress, as providers, consultants, in support services, and in the process of pursuing their own claims. Finally, survivors can be involved in redress outcomes, including their own payment negotiations or in helping others post-settlement. A flexible redress programme enables survivors to choose how they participate in redress. Because participation is not cost-free, effective survivor participation requires support. On this point, the VBB Principles suggest that redress programmes could engage with both individuals and collectives, allowing groups to present claims and receive redress.

***

Turning from procedure to substance, Chapter 1 emphasises how offending states are using an array of remedial measures. The VBB Principles include a holistic range of measures for rehabilitation, restitution, satisfaction, and compensation.Footnote ⁴ To expand, the VBB Principles suggest that reparation can include rehabilitative claims for the treatment of medical or psychological damage incurred as a result of injury. In international law, restitution usually concerns restoring properties and liberties wrongfully taken or denied. However, the VBB Principles specify that restitution also includes the recovery of personal identity, family life, and, I would add, culture. As the previous chapter indicates, it was common for individuals in care to be assigned new identities and denied contact with, or information about, their birth families. In the most egregious cases, care systems perpetrated cultural genocide against Indigenous peoples. Therefore, better redress programmes will facilitate measures of identity recovery along with family and cultural reconnection. Satisfaction measures include researching and publishing accurate accounts of the injury, punishing offenders, and getting apologies. Survivors accord significant value to the acknowledgement that occurs when states take responsibility for offending (Lundy and Mahoney Reference Lundy and Mahoney2018: 271; Claes and Clifton Reference Claes and Clifton1998: 66,74). Although punishment is peripheral to the operation of monetary redress, the acknowledgement gained through report-writing, truth-telling, and apology is clearly salient.

The Principles’ holistic approach positions monetary payments within a broader range of potential redress forms. That holism is important and I strongly endorse it. But its study could not be contained within this volume. My narrower focus reflects monetary redress’s distinct values. The VBB Principles define compensation as a response to any ‘economically assessable damage, as appropriate and proportional to the gravity of the violation’. That phrasing reflects the survivors’ claim to financial compensation wherever possible and for the fullest possible extent – a criterial interest in full compensation. As the leading international judgment holds,

That counterfactual demand is easy to articulate, but hard to satisfy. There may be no way to recover lost childhoods or repair psychological and social damage. Nevertheless, Chapter 13 explores how full compensation offers a regulative idealFootnote ⁵ governing the quantity of compensation.

The substantive content of the survivor’s monetary claim depends on the nature of original wrongdoing and the harmful effects of that wrongdoing (consequential damage). The Principles embrace structural and interactional, and individual and collective, injuries. The ambit of compensable damage includes physical and mental harms, including the loss of opportunities, unemployment, and miseducation; loss of earnings and earning potential; and moral damage, which may include damage to family and cultural relationships and to the survivor’s reputation or character. To that end, monetary redress can include the costs of other remedies, such as treatment for rehabilitation and restitution of family connections. Moreover, considered from a holistic perspective, monetary redress is a means of satisfaction because payment acknowledges the survivor’s experience and validates the truth of their evidence.

To conclude this section, the VBB Principles articulate survivor-respecting programme criteria. Redress programmes should provide fair and impartial access to justice through non-arbitrary and non-discriminatory programmes delivered by an independent body. Fairness requires procedural rules that are public, prospective, and stable. Moreover, survivors need adequate assistance both to mitigate the disadvantages they face in making redress claims and support their well-being. Relevant well-being considerations include physical, psychological, and cultural aspects alongside privacy concerns. Survivors must have opportunities to participate in the development, delivery, and outcomes of redress. Regarding substance, survivors can have rehabilitative claims to remedy physical and psychological damage; restitutive claims for properties and liberties they have been denied, including information about family members; satisfaction claims for apologies and other forms of acknowledgement; and, finally and most centrally, compensation claims. The substance of compensation includes the interactional, individual, collective, and structural injuries discussed in the previous chapter, embracing any injurious acts and consequences that can be financially valued.

3.3 State Interests

The VBB Principles adopt ‘a victim [survivor]-oriented perspective’ (Zwanenburg Reference Zwanenburg2007). Attending to survivor populations’ distinctive characteristics is essential to developing and delivering accessible programmes. However, their survivor-orientation means that the Principles do not address the interests and capabilities of states. That is a manifest shortcoming. Evaluative criteria must address considerations relevant to both parties if they are not to engender unjust and unrealistic expectations.

Chapter 1 notes that, unlike survivors, states are not human. There, I observe that states do not feel remorse or guilt like people do. It is also true that the state’s redress obligations impinge upon third parties in distinctive ways. Whereas wrongdoing can create stringent remedial obligations among individuals – obligations that take priority over most other demands – things are otherwise for states. States use taxation to raise most of their revenue, meaning that the citizenry pays for the state’s offences. And the citizenry’s remedial obligation is not the same as the state’s (Pasternak Reference Pasternak2021). Citizens have a responsibility to contribute to developing and maintaining just institutions (Rawls Reference Rawls1999: 242ff). Because the remedial obligations the state has towards injured care leavers are part of that responsibility, the citizenry has reason to contribute resources towards redress. But that reason is quite different from those that govern interpersonal remedial frameworks. The citizens who provide the resources for redress are not usually guilty of any wrongdoing and, moreover, have countervailing claims upon the public revenue.

The basic policy goal of redress is to resolve the survivors’ meritorious claims – success in that task defines an effective programme. Every state is marked by significant and persistent deficiencies of justice, which means that remedial obligations towards care leavers compete with other compelling policy demands. States must also provide a range of public goods, including transport, medical care, education, and defence. The observation that redress competes with other demands on the public purse means that survivors cannot reasonably ask that their claims receive absolute priority: fiat iustitia, et pereat mundusFootnote ⁶ is not a principle for good policymaking. But, obviously, survivors’ claims are not without weight.

Because redress is a form of public policy, the basic tools of public policy analysis provide some criterial guidance. A foundational axiom of public policy analysis is that the optimal relation between a policy goal and policy tool is one-to-one (Knudson Reference Knudson2009: 308).Footnote ⁷ To have more than one policy tool for a policy goal invites inefficiency – efficiency is a key procedural interest of states. States maintain the ordinary courts as the primary policy tool for resolving remedial obligations. Therefore, one way to satisfy their criterial interests is to ensure that redress programmes are comparatively better than litigation would be. That means redress should not be worse than litigation with regard to the state’s procedural values. Programmes need to respect rights, follow the law, nurture public support, and the benefits to the citizenry should outweigh the costs. Substantively, redress should be more effective in resolving the survivors’ meritorious claims.

To expand, effective redress policy should cohere with the state’s other goals and practices. Redress programmes need to, for example, meet the demands of lawfulness, because an unlawful programme would risk survivors reverting to litigation. Litigation assures legality – claims are resolved in conformity with the law. But lawfulness has further procedural implications for third parties. Employment law offers an illustrative challenge. Redress programme staff are not (usually) offenders – they are third parties. They must be treated appropriately with respect to their legal entitlements and with regard to their physical and psychological well-being, including mitigating the risks of vicarious harm (discussed in Chapter 10) that arise when working with survivors’ claims.

States have an interest in efficiency, meaning that redress programmes need the capacity to process claims economically. That entails an operative framework that is adequately resourced and rationally organised with well-run technical infrastructures. Since the procedural costs of claims tend to increase along with the time that officials devote to them, redress should be no slower than litigation and preferably much faster. Because increasing information quantity correlates with decreasing adjudication speed (and higher procedural costs), states have an interest in ensuring that a programme can access useable data efficiently. The need for efficiency underpins states’ interest in the form and character of redress processes, including supporting applicants to provide information in easily managed forms. As Part II will demonstrate, redress programmes regularly confront difficulties with staffing, information, and regulation. Good programme design will not only minimise impediments, but will build in reflexive capacities to help identify and mitigate problems as they arise. Programmes need to be able to develop their capabilities as they mature.

Redress programmes should aim for internal consistency, but the interests of survivors, states, and other stakeholders are in perpetual tension. For example, no programme can deliver full compensation at a low cost without encouraging (inefficient) fraud. But there are measures programmes can take to promote consistency. I previously noted the survivor’s interest in procedural transparency. States have an analogous interest in publicity. Because they are accountable for their expenditures – legally to their auditors and politically to their citizenry – states have an interest in being protected against fraudulent claims (Bay Reference Bay2013: 2). Moreover, citizens should be confident that survivors are not abusing an opaque process, otherwise, ‘if [citizens] don’t understand the dynamics of it, it just looks like people are making up stories and they want money and it is going to cost the taxpayer a fortune’ (AU Interview 6). Publicity enables everyone to know what rules apply and whether participants are conforming to those rules. Litigation satisfies that demand with open courts that operate according to known rules and procedures using evidence available to, and contestable by, all parties. By testing claims to exclude non-meritorious applications, redress programmes can provide comparable forms of publicity. To do this, a redress programme needs to obtain relevant and reliable information, including potentially adverse evidence from offender-participants. It also needs to publish informative reports and statistical data.

Finally, a programme’s goals and components should work together efficiently. This internal efficiency is a form of what policy scholars call congruence. Given that states have a policy tool for managing the claims of care leavers, redress will need to cost less than litigation. Litigation is a notoriously inefficient consumer of money and human capital that states might put to more productive uses. Redress programmes can be much cheaper to administer on a per capita basis. To illustrate, per capita administration costs for redress programmes in Queensland, Tasmania, and Redress WA ranged between AUD$1200 and AUD$3000 (Pearson and Portelli Reference Pearson and Portelli2015: 55). These sums would not suffice to pay even one lawyer to attend a single day in court.Footnote ⁸ The potential procedural savings are significant. However, there are difficulties in ascertaining the right comparative baseline. Should it be what a state would spend on litigation in the absence of a redress programme? Or should it be what the state would spend if every redress applicant chose to litigate? The latter scenario would likely involve many more cases than would otherwise appear, as the abovementioned problems with litigation deter most survivors. And the cost of litigation depends in part on the state’s litigation strategy. A state that adopts an aggressive approach that prolongs litigation will increase the associated procedural cost for a few cases, but may thereby deter others. By contrast, some states adopt model litigant strategies that eschew indecorous pettifogging but risk encouraging more claims.

Such contingencies make the answer to the question ‘What would it cost to litigate?’ indeterminate. But that does not make the counterfactual useless. Recall the fundamental assumption of reciprocity: good criteria are justifiable to all stakeholders. If being a model litigant is a common law obligation for states (Chami Reference Chami2010), states should not be able to rely on their failing to meet that obligation when setting redress budgets. Survivors could reasonably reject a parameter derived from hostile and unlawful procedures. Therefore, the expected cost of litigation to a state acting as a model litigant is a fairer parameter for an overall budget.

Returning to the policy goal, states aim to provide a procedure for resolving the survivors’ meritorious claims. A claim is resolved when it no longer presents the state with a remedial reason to act. Therefore, the adjudication of redress should normally be final and not regularly displaced, or succeeded, by another process. Litigation serves this value by being a closed system, in which claims are adjudicated according to legal rules and issued by legal authorities. There is no appeal on points of law beyond the legal system.Footnote ⁹ However, most survivors never file claims, making litigation ineffective. To be effective, redress programmes need to attract (more) survivor-applicants and resolve their claims. A criterion then, for states, is that redress should attract and resolve more claims than litigation.

A further source of comparative effectiveness is the potential for redress programmes to address meritorious claims that litigation is incapable of resolving. An old legal saw holds that the state never loses in court. The truth of that nostrum approaches inevitability in the realm of non-recent claims. As one official said to me, the problem with litigating these claims is not that the state might lose, the problem was ‘quite the reverse’ – the state was nearly guaranteed to win (AU Interview 3). Moreover, some meritorious claims fall beyond the ambit of tort law, such as when injurious acts were legal at the time of commission. Afforded greater flexibility, redress programmes can target salient claims (and claimants) more effectively.

Previously, I discussed how states should expect redress to be more procedurally efficient than litigation. A similar point applies to the total cost of redress payments: states have an interest in resolving claims cost-effectively. In terms of monetary costs, litigation can be very expensive. To illustrate, the above-mentioned landmark non-recent abuse case, Trevorrow, resulted in a total award for the plaintiff of AUD$525,000. By comparison, the maximum payment available in Australia’s NRS is AUD$150,000. Anticipating tens of thousands of deserving claimants in Australia, the McClellan Commission states that ‘calculating monetary payments in the same way as common law damages would be … unaffordable’ (Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 248).Footnote ¹⁰ South Australia’s Trevorrow court rightly ignored the opportunity costs its award imposed upon the public purse, but no responsible policymaker could design a redress programme without addressing that point. The business case policymakers develop must include budget projections. Because money consumed by redress is not available for other public purposes, it is reasonable for states to require some budgetary certainty. That assurance might emerge using different techniques, as later chapters explain.

To summarise, a good redress programme should resolve more meritorious claims than litigation. To take a further step, redress programmes are better when they resolve more deserving claims. But that interest in resolution is balanced by a concern with costs: states have an interest in expending no more (ideally less) on redress (per claim) than they would on litigation, while good redress programmes resolve no fewer (ideally many more) meritorious claims than litigation. An effective redress programme might optimise those two criteria; if payment values decrease as the number of (expected) resolved claims increases, programmes become more cost-effective, increasing the ratio of the achieved policy target as compared to input costs.

To conclude this section, the criteria for evaluating a redress programme must recognise the distinctive character of state agency. States bear remedial obligations; however, these obligations are ‘on all fours’ with other policy goals – redress is a form of public policy. States have an interest in policy tools that are effective and efficient. Redress programmes should be superior to litigation. Programmes should operate lawfully; moreover, as states are accountable, both legally and politically, they have an interest in excluding ineligible claims. Substantively, redress should be cost-effective and offer a measure of budgetary certainty.

***

In general, both states and survivors can expect a redress programme to improve on the prospect of litigation. To review some key procedural points relevant for survivors, the process must be impartial and fair. Impartiality requires redress delivered by an independent body using non-discriminatory procedures. Fairness requires stable rules and processes. Transparency enables survivors to find out when errors occur. Moreover, survivors may need support to mitigate the disadvantages they experience pursuing their claims. Relevant well-being concerns include privacy matters, alongside physical, psychological, and cultural considerations. Finally, survivors need robust opportunities to participate in programme development, delivery, and outcomes. Like survivors, states can expect the programme to verify claims lawfully and efficiently. Moreover, turning to substance, survivors have a right to full compensation while a state can expect a redress programme to be effective, optimising the number of meritorious claims resolved and the costs associated with those settlements. Later chapters develop these criteria using information about existing programmes, before coming to the recommendations of Part III. But a note of caution. As previously noted, the criteria are riven with internal tensions. Later discussions will expose and develop some of these conflicts. The resulting need for trade-offs underscores the benefits of flexible programme design, a flexibility that enables survivors to choose how they pursue redress.