Ombudsman finds 'litany of failures' in OT treatment of Malachi Subecz case

Wednesday, 5 October 2022

Malachi Subecz's family speaks after his killer's sentencing in June 30, 2022.

The Ombudsman has found a “litany of failures” in Oranga Tamariki’s (OT) handling of Malachi Subecz’s case in the months leading up to his murder and says the agency needs to apologise.

'Oranga Tamariki’s own law and policy puts the well-being of a child at the centre of decision-making that affects that child. 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,' Chief Ombudsman Peter Boshier said.

Boshier said OT failed to take the ‘‘bare minimum’’ action over safety concerns about then four-year-old Malachi raised by his family. A report of concern about suspected abuse, medical neglect, and potential harm was made in June 2021, but not acted upon.

* 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

Malachi Subecz, 5, died in Starship Hospital on November 12, 2021.

This included not reporting the abuse to police after the family provided OT with a photograph of a suspected bruised eye, as required under Child Protection Protocol (CPP.)

“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.

'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 says these steps were not taken.

OT instead spoke to Malachi’s mother in prison, who had no concerns about his placement with Michaela Barriball, and it decided to take no further action. Boshier says this decision was wrong. '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.'

‘Defensive and unforthcoming’

There was no evidence Oranga Tamariki met with Malachi to find out what he felt about his living situation nor did a safety check on Barriball’s home. In its rationale for not attending, staff wrote there was “nothing to say” Malachi was unsafe with Barriball.

Malachi was murdered by Michaela Barriball, and died in hospital on November 12, 2021. He had been living in a cabin at the back of a Te Puna property, where he was tortured for months before his death.

Barriball inflicted daily pain and humiliation on Malachi, including holding him up by his hair and slamming him into walls, starving him, holding his head underwater, locking him outside in his underwear, slapping him, burning him, and pretending to punch him when he walked past.

The Wellington-based family previously told Stuff they held grievous concerns for Malachi’s safety, and believed he was coming to into their care up until his mother was jailed and elected to place him with her friend Barriball. They were fighting for custody.

'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,' Boshier said.

The family later laid two complaints with Oranga Tamariki about their lack of action, once in July 2021 when Malachi was still alive and again while he was dying in hospital in November. When his uncle rang in November he was initially told there was no complaints process. Boshier said these responses were inadequate, and he was concerned with the lack of public information about how to complain.

OT had also tried to get the Ombudsman to delay his investigation until after its practice review, but Boshier refused. He said OT showed a disappointing lack of meaningful engagement in his investigation.

'I found their approach defensive and unforthcoming. I think this is regrettable as the family came to us looking for answers and I found it very difficult to get those answers from the agency.'

He told Stuff he “would not rest,” until he saw changes made at OT.

“The seriousness of this cannot be overstated. You can imagine how disempowered the whānau felt when the agency wasn’t interested, and I think they knew the child was being abused, and they were becoming more and more distressed. The agency charged with looking after this boy took no action.

“There are some sites in New Zealand where OT operates well, and what I lament is it’s a game of chance where the system operates well or not, and this is deplorable. It should not be a game of chance.

'Normally on a complaint of this nature I don’t go public, but I have in this one because the family wanted accountability, and they’re justified in wanting that because this boy was treated in the most ghastly fashion, and then he died.'

Politicians respond

Children's Minister Kelvin Davis said the findings raised 'serious concerns' and he expected the agency to make changes as a result.

'This is not good enough, and I expect better,' he said.

'It is my expectation Oranga Tamariki will do all they can to implement any changes necessary as a result of the reviews underway.'

Te Pāti Māori co-leader Debbie Ngarewa-Packer said Oranga Tamariki had been given 'more chances than any other agency' to reform, yet it continued to fail children in need of care. She said the Government's reforms had been 'patch work' with 'ply wood added on', and were not achieving 'structural change'.

ACT Party children's spokesperson Karen Chhour said the Ombudsman's report was just the latest of many reports to highlight 'tragic examples like this'.

'It is concerning that amongst all the reforms nothing seems to have been implemented to help the children who are slipping through the cracks,' she said.

National Party children spokesperson Harete Hipango said: “This is an awful, avoidable tragedy and my thoughts go out to Malachi’s whanau. Malachi was an innocent and vulnerable child who was failed by Oranga Tamariki.”

‘I will hold people to account’

Oranga Tamariki chief executive Chappie Te Kani said OT accepted all the Ombudsman’s recommendations.

“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.”

Michaela Barriball at the High Court in Rotorua where she was sentenced for the murder of Malachi Subecz, 5. Sentencing Judge Paul Davison said her treatment of Malachi was ‘nothing less than torture’.

Recommendations included apologising to the family in an agreed time and way and providing the Ombudsman a copy of the practice review and a report on how it would impact OT’s policy.

“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.

“Children need us to help keep them safe, and New Zealanders deserve more from their child protection agency. As the Chief Executive of Oranga Tamariki, failing to respond properly when people come to us is something that I cannot and will not tolerate.

“I will fix any system that is broken and hold people to account.”

Oranga Tamariki is conducting its own review into the circumstances that led up to Malachi’s murder, led by Chief Social Worker Peter Whitcombe and an independent reviewer.

An all-of-system review into Malachi’s death, which will look into how six Government departments who came into contact with Malachi might have prevented his death, is expected to report back in December.

The Review of Children’s Sector Response to Abuse is being led by Dame Karen Poutasi.

Boshier said he would make further recommendations following these reports.

Malachi Subecz was murdered by his caregiver last year.

Malachi’s Aunty Helen Menzies previously told Stuff family raised the alarm twice with Oranga Tamariki within a week of Malachi being placed in the care of his murderer, across two separate offices. They say this included providing Oranga Tamariki with photographs of Malachi’s bruises.

Menzies said they fought to get Oranga Tamariki, police and the Family Court to take their concerns for Malachi’s safety seriously.

Malachi had been placed into Barriball’s care at the request of his mother, who was jailed on June 22, 2011. Barriball was resisting applications from Malachi’s Wellington-based family for custody. She received a benefit for caring for Malachi.

The family say they begged the mother to let him come to them, but she said it was her decision. Menzies says the family called the court, and alerted OT to their concerns on June 23.

On Saturday, June 26, they say they asked Barriball to send them photographs of Malachi. She says those photographs revealed bruises on his face.

The family reported the suspected abuse and their ongoing concerns to Oranga Tamariki in Paraparaumu on Monday June 28, and were told it was transferred to Tauranga.

The daycare Malachi attended, Abbey’s Place Childcare Centre, was closed down by the Ministry of Education this week. That daycare saw and photographed extensive injuries yet failed to report them to any authorities.

Malachi’s cousin and uncle who laid the Ombudsman complaint said in a statement they felt validated by the Ombudsman’s review.

“There is no doubt Malachi would still be alive if Oranga Tamariki had acted appropriately.

“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 – only that which is independent such as Dame Karen Poutasi’s review,” his uncle said.

Malachi's uncle also welcomed the closure of the daycare that failed to report photographs of Malachi's abuse.

'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.'