Two murdered children, two daycares who knew of abuse – but no law to report it

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Teachers and daycare staff have no legal obligation to report concerns of child abuse to either Oranga Tamariki or Police, a staggering gap in our child protection laws that has been highlighted in the wake of the murders of two children.

The abuse that eventually resulted in the deaths of both Malachi Subecz and Ferro-James Sio, both five-years-of age, was known about by a daycare and kohanga respectively.

Malachi was murdered by Michaela Barriball, the woman charged with his care, between November 1-12 last year.

According to court documents, a month before his death “the injuries (were) seen and photographed by daycare”.

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The family of murdered child Malachi Subecz have shared video of his funeral.

READ MORE:
* Man who beat his son to death told cops he was ‘not the parent of the year’
* Pics of abuse suffered by Malachi Subecz didn’t reach police until after his murder
* Children’s Minister Kelvin Davis wants answers from Oranga Tamariki over murdered 5-year-old
* Jail term for woman who ‘did nothing’ as partner murdered his son

The description of his injuries makes harrowing reading.

“The deceased had multiple blunt force trauma injuries to his head caused by the defendant Michaela Barriball, including a cluster of bruises under his chin, a scratch on his left mandible [lower jaw], a large swelling on his forehead (which his hair had been pulled over), and a progressively blackening left eye.”

The documents also noted Barriball “was spoken to by staff at the daycare and told them that the deceased had fallen off his bike and had also fallen in the weekend”.

Michaela Barriball has pleaded guilty to the murder of five-year-old Malachi Subecz and will be sentenced on May 27 at the High Court in Rotorua. Before the murder she texted her partner telling him “I think I kill him”.

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Michaela Barriball has pleaded guilty to the murder of five-year-old Malachi Subecz and will be sentenced on May 27 at the High Court in Rotorua. Before the murder she texted her partner telling him “I think I kill him”.

Speaking to the abuser was also the course of action taken by Ferro-James Sio’s Kohanga, before his eventual murder by his father William Sio in February 2020.

Court documents in that case revealed that at his Tauranga-based Kohanga Reo “he was observed to have bruising and pinch type marks to his ears”.

“He was also observed to have grab/pinch type marks on his arms, back and shoulders … A Kohanga teacher repeatedly raised concerns with the defendant Sio,” court documents said.

“After having raised the matter with Sio, the teacher would observe that the marks would disappear for a time, but after a period would reappear.”

Police told Stuff that they only discovered the Malachi abuse photographs after his death, and refused to comment on Ferro-James “while the matter remains before the Court and Coroner”.

The Coroners’ office said no decision on an inquest has been made.

An Official Information Act request with the Ministry of Education also revealed that with Ferro-James, “we were not made aware of any child abuse reports for this pupil”.

Oranga Tamariki declined to comment on whether they had the Malachi photos, citing an investigation into their handling of the case by the Chief Social Worker.

So do they have to report abuse?

The revelations that in both cases the abuse was known about prompted Stuff to approach a number of organisations with one simple question: Is it correct that daycare staff/teachers are not legally obliged to pass on abuse concerns to Oranga Tamariki or police?

It was a question that revealed the extent to which confusion exists around the issue.

The New Zealand Education Institute, the country’s largest education union, said they “can’t assist with this”.

The Law Society, The New Zealand Post Primary Teachers’ Association, Office of the Children’s Commissioner, Youth Law and police were all also either unwilling or unable to answer.

A promised response from National MP and Children/Oranga Tamariki spokesperson Harete Hipango​ also failed to materialise.

The New Zealand Principals’ Federation national president Cherie Taylor-Patel said she believed legal obligations did exist for reporting to police and Oranga Tamariki.

However, a Federation spokesperson did say “it would seem that the requirements are not crystal clear about when you do and when you don’t report child abuse”.

Staff at the Kohanga Reo William Sio’s son attended “repeatedly raised concerns” with him about abuse signs on the five-year-old. That failed to prevent him later beating his son to death. He was sentenced to life with a minimum period of 17 years back in July 2021.

Benn Bathgate/Stuff

Staff at the Kohanga Reo William Sio’s son attended “repeatedly raised concerns” with him about abuse signs on the five-year-old. That failed to prevent him later beating his son to death. He was sentenced to life with a minimum period of 17 years back in July 2021.

Getting a clear answer from both the Ministry of Education and Oranga Tamariki took almost a week of correspondence.

Initially Stuff was informed of Children’s Act 2014 requirements for daycares and schools to have a Child Protection Policy, which should contain “how we identify and report child abuse and neglect”.

The Ministry of Education also said Child Protection Policies should be available on request, though neither Malachi’s daycare nor Ferro-James’ Kohanga responded to Stuff requests to access these documents.

Asked whether Child Protection Policies included a legal requirement for reporting specifically to police or Oranga Tamariki, and after requests for a clear answer to the question, both finally responded.

“There is no general legal obligation on daycare staff and teachers to report abuse concerns to Oranga Tamariki or police,” said Oranga Tamariki.

Sean Teddy, Hautū (Leader) operations and integration/Te Pae Aronui at the Ministry of Education told Stuff: “There is no general law in New Zealand that makes reporting of suspected abuse or neglect of children mandatory”.

The Ministry of Education also later confirmed this.

“While there may be no legal obligation, the Oranga Tamariki Act allows anyone to report suspected child abuse without fear of negative consequences for doing so.”

The lack of any formal legal requirements was also confirmed by the Kōhanga Reo National Trust spokesperson Tahuri Tumoana​, citing the Children’s and Young Person’s Well-Being Act 1989.

That states: “Any person who believes that any child or young person has been, or is likely to be, harmed (whether physically, emotionally, or sexually), ill-treated, abused, neglected, or deprived may report the matter to the chief executive or a constable.”

“As we follow the letter of the law, it states ‘may’ report the matter, therefore from a strictly legal sense, Kōhanga Reo Kaimahi are not required to report ill-treated, abused, neglected or deprived treatment of a child or young person,” Tumoana said.

Adding, however, that ”the Kōhanga Reo National Trust encourage and support Kōhanga Kaimahi to report serious abuse concerns to police without hesitation”.

Jane Searle, Child Matters chief executive, said New Zealand lagged behind many other countries when it came to laws aimed at protecting children from abuse, and that the introduction of child protection training for teachers would be a good first step.

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Jane Searle, Child Matters chief executive, said New Zealand lagged behind many other countries when it came to laws aimed at protecting children from abuse, and that the introduction of child protection training for teachers would be a good first step.

‘New Zealand lags behind’ other countries

One person aware of this glaring gap in child protection laws is Jane Searle​, former solicitor, police detective and now chief executive of the advocacy group Child Matters.

She said that unlike many other countries, New Zealand has “no mandatory requirements for teachers or early childhood educators when it comes to abuse or neglect”.

Her view was backed by Shine Lawyers managing director Angela Parlane​.

“There is no law in New Zealand that makes mandatory reporting of abuse of children, adults or the elderly mandatory.”

“Sadly, when it comes to protective measures for tamariki, New Zealand lags behind,” Searle said.

She said that while there are some circumstances where an individual could have a legal obligation to report abuse concerns under the Crimes Act, the threshold for a prosecution is high, and “the criteria does not include the likes of a teacher”.

Children’s Minister Kelvin Davis declined to answer specific questions, citing an ongoing investigation into Malachi Subecz’s murder, but did tell Stuff ‘if the response made at the time was not good enough, regardless of which agency, that changes will be made’.

ROBERT KITCHIN/Stuff

Children’s Minister Kelvin Davis declined to answer specific questions, citing an ongoing investigation into Malachi Subecz’s murder, but did tell Stuff ‘if the response made at the time was not good enough, regardless of which agency, that changes will be made’.

Searle also said New Zealand lacks any requirement for child protection training for teachers, something she said could give them the knowledge to be able to accurately identify signs of abuse.

She said in many parts of the world such training is a mandatory requirement, and she believes it should be in New Zealand too.

“At the very least we believe that child protection training should form a part of the registration process for teachers,” she said.

“This would be a practicable and non-onerous step in helping to protect our most vulnerable. Without this training, many of those working directly with children currently in Aotearoa are ill-equipped to identify and respond appropriately.”

She also said that for many children, their school or daycare facility could be the only organisation outside their home to have significant contact with them.

If they were trained correctly, they could be in a position to spot and act on abuse to help the child and family.

Oranga Tamariki chief Chappie Te Kani told Stuff that “if” they had failed Malachi Subecz, ‘I will own it and we will change’.

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Oranga Tamariki chief Chappie Te Kani told Stuff that “if” they had failed Malachi Subecz, ‘I will own it and we will change’.

Taylor-Patel said reporting carried consequences like intensive scrutiny on a family, and damage to relations between the family and school, or daycare.

But ultimately, she said most teachers would be guided by one question.

“Can I sleep at night knowing that child is going home to that situation?”

Children’s Minister Kelvin Davis declined to answer specific questions, citing an “investigation that will look at cross-agency involvement on this case [Malachi Subecz]”.

However, he did say he had “made it clear that if the response made at the time was not good enough, regardless of which agency, that changes will be made”.

Chappie Te Kani, the Oranga Tamariki chief executive, also signalled changes may be coming.

“If Oranga Tamariki failed Malachi, or if we have fallen short to provide him care and protection, I will own it and we will change.”

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