Oranga Tamariki failed to do 'bare minimum' to help abused child before death

By Contributor

Malachi Subecz was taken to hospital in November last year with non-accidental injuries that would turn out to be fatal. The little boy's caregiver was later convicted of his murder. Photo / Supplied

By Natalie Akoorie, Open Justice multimedia journalist, Waikato

Oranga Tamariki failed to take the "bare minimum" action over safety concerns about Malachi Subecz who was later murdered by his carer.

That's the finding of the Chief Ombudsman's investigation into the death of the 5-year-old Tauranga boy last November following repeated abuse by his caregiver Michaela Barriball.

"Oranga Tamariki's own law and policy puts the wellbeing of a child at the centre of decision-making that affects that child," Peter Boshier said this morning in releasing his report.

"Malachi's wider whānau raised concerns about his welfare at the hands of his carer.

"I can only describe Oranga Tamariki's response as a litany of failures," Boshier said.

The little boy died in hospital of his injuries on November 12, 2021.

Minister for Children Kelvin Davis said he expected answers from Oranga Tamariki while Boshier also slammed the agency for poor cooperation during his investigation.

Davis said what happened to Malachi was "extremely sad", and he acknowledged the hurt his whānau will be feeling.

"The Ombudsman's investigation raises serious concerns," he said.

Davis wanted answers from an Oranga Tamariki practice review, currently underway.

"I expect it to provide a full picture of where mistakes were made and, crucially, how it can be prevented from happening again.

"Changing the system and preventing harm like this from happening to children is why I asked for the role of Minister for Children. I am absolutely determined to make that happen."

Malachi's cousin and uncle, who prompted the Chief Ombudsman's investigation with a complaint, said Boshier's opinion validated concerns they had about the way Oranga Tamariki mismanaged their complaints.

"It is bittersweet that the Ombudsman has found what we knew to be true," Malachi's cousin said.

The pair were firm in their view that "there is no doubt Malachi would still be alive if Oranga Tamariki had acted appropriately".

Five months before Malachi's death his mother, who was imprisoned, had placed her boy in the care of a friend, 27-year-old Barriball.

Barriball was convicted and jailed for a minimum 17 years in June this year for the murder and mistreatment of Malachi.

Malachi suffered repeated beatings at the hands of Barriball, including being held under bathwater, burnt in a shower and twice thrown against a wall by his hair.

"The circumstances surrounding Malachi's death are extremely distressing," Boshier said.

What the Chief Ombudsman's investigation discovered

"I launched an investigation after his cousin and uncle complained to me about the actions of Oranga Tamariki."

The cousin first made a report of concern about the boy's welfare to Oranga Tamariki in June 2021.

Issues were raised about actual and potential harm, including medical neglect and suspected physical abuse.

"A number of things are supposed to happen following a report of concern in cases where a child is at risk of harm or neglect and if it appears an investigation is necessary or desirable," Boshier said.

"If an investigation is begun, Oranga Tamariki is required to do an assessment followed by a safety and risk screen — the screen identifies whether immediate action is required to secure the safety of the child."

Boshier said these steps were not taken.

He said Malachi's cousin provided the agency with a photo of the Te Puna boy with a suspected bruised eye but Oranga Tamariki did not report it to police as required under the Child Protection Protocol [CPP].

"There is no record that Oranga Tamariki considered its obligations under the CPP at any stage, nor did it record any consideration of the suspected bruising."

Instead Oranga Tamariki spoke to Malachi's mother in prison, who had no concerns about his placement with Barriball and Oranga Tamariki decided to take no further action.

The Chief Ombudsman said this was the wrong decision.

"Malachi's welfare and interests were not prioritised; they were instead wrongly assumed to be addressed or overridden by his mother's endorsement of his carer, in spite of evidence that he may not be safe."

Malachi's cousin complained to Oranga Tamariki in July 2021 about its decision to take no further action. Boshier found its response to her complaint inadequate.

He said there was also no evidence Oranga Tamariki met with Malachi to find out what he felt about his living situation nor did it do a safety check on the carer's home.

"It is my view that Oranga Tamariki omitted to do all that was necessary and desirable, and it should have investigated the report of concern."

Accountability after Malachi died

When Malachi was admitted to hospital on November 1, his uncle called Oranga Tamariki to complain but was told at first that there was no complaints process. Malachi died shortly afterward.

Malachi's cousin said she and Malachi's uncle were grateful to the Ombudsman's office for its mahi and manākitanga.

"Unlike our experience with Oranga Tamariki we have felt heard and respected," she said.

"OT continue to treat us with disdain as evidenced by their refusal to apologise to us until after, and only if, their internal practice review finds failings.

"It is for this reason we have no confidence in any internal review.

"This is certainly not the end for us seeking justice for Malachi, it is only the beginning.

"We are determined to hold OT to account for their culpability and inadequate service delivery."

Boshier also criticised Oranga Tamariki for being "slow, diffident and unforthcoming" during his investigation.

He told Open Justice he was disappointed with Oranga Tamariki over its lack of engagement, which he found "curious and very unacceptable".

"After all, I'm an officer of Parliament - the watchdog set up by Parliament to hold agencies to account.

"Oranga Tamariki has failed to give to me an open picture of what occurred here and why."

He said the lack of cooperation was so bad it hindered his job and he would keep a close eye on Oranga Tamariki's own review.

Further recommendations would be made when this investigation was completed, Boshier said.

He also slated Oranga Tamariki for their poor response to whānau when concerns were raised.

"Oranga Tamariki did not act on their expressions of concern. You would've thought they'd be owed an explanation by the agency, but that has not occurred."

Boshier said he was also concerned about the advice and information that was publicly available about Oranga Tamariki's feedback and complaints process.

"There isn't a dedicated complaints line nor is there information available on its website about how the complaints process works."

Overall, the Chief Ombudsman found Oranga Tamariki acted unreasonably and wrongly in the case of Malachi.

"Oranga Tamariki's response to Malachi's cousin's report of concern does not appear to have fulfilled the bare minimum of the process required to ensure Malachi's safety.

"It also acted unreasonably in providing incorrect information to Malachi's uncle."

Boshier wanted Oranga Tamariki to apologise at a time and in a way that was right for the whānau.

"The apologies should recognise the impact of Oranga Tamariki's actions."

Oranga Tamariki accepts Chief Ombudsman's recommendations

Oranga Tamariki chief executive Chappie Te Kani said the death of Malachi was deeply distressing and he acknowledged the continuing grief of his whānau and all who loved him.

"Earlier this year I made a commitment to do anything possible to find out if and how the system failed Malachi, and to own it. I stand by my word," Te Kani said.

"I want to confirm that I, on behalf of Oranga Tamariki, accept all of the Ombudsman's recommendations."

Te Kani said Oranga Tamariki should have done everything within its power to mitigate harm when evidence was presented to it and did not.

"The impact of the decision not to investigate will be felt by Malachi's whānau forever.

"Our priority now is to work with the whānau to offer apologies in a way that suits them.

"I appreciate that this will not fill the hole in the hearts of those who loved Malachi."

Oranga Tamariki was now finalising a review into its handling of Malachi's case, Te Kani said.

"This review is a broad look at what we did, where we made mistakes, and how we prevent this from happening to other children."

A third review was also under way and due to be finished later this year. It is a system-wide review led by Dame Karen Poutasi, commissioned by chief executives of the six children's sector agencies to look at improving how they identify and respond to child abuse.

The agencies are Oranga Tamariki, NZ Police, the Department of Corrections, and the ministries of Social Development, Health and Education.

The Ombudsman's report comes one day after the Ministry of Education revoked the licence of the Tauranga daycare attended by Malachi.

Abbey's Place Childcare Centre staff noticed Malachi's injuries in the months leading up to his death and photographed the bruises and black eye, but never alerted authorities.

Malachi's uncle said this was welcome news.

"It is simply another step in the long journey of holding people and agencies to account for their role in the preventable death of Malachi.

"Child protection should be paramount, and people must learn from this. Malachi's death cannot be in vain."

Victim Advocate Ruth Money said it was astounding to learn Oranga Tamariki did not appear to consider its obligations under the Child Protection Protocol.

"Malachi's cousin reported photographic evidence of non-accidental bruising, which by law required a referral to police as a CPP case and yet they failed to do this.

"Child abuse is an epidemic in New Zealand and if we cannot rely on OT to act within the CPP framework who can we turn to?"

- Additional reporting Ethan Griffiths