‘Victim of unspeakable cruelty and deliberate evil’: Coroner’s findings on Malachi Subecz death

Source: Radio New Zealand

A coroner has found everything possible went wrong for Malachi Subecz in the last six months of his life, when opportunites to identify the abuse and torture he suffered were not picked up.

Coroner Janet Anderson also warned that it was a national disgrace that in the five years since his death not enough had changed to prevent other children dying at the hands of those looking after them.

An inquest into the death of the five-year-old in 2021 was held last year, after his caregiver Michaela Barriball was convicted of his murder and sent to prison.

Malachi’s mother Jasmine Cotter had been sent to prison on drugs charges and he was placed in the care of her then friend Barriball, who subjected him to months of horrific abuse.

He died of a blunt force head injury at Starship Hospital in 2021, weighing just 16 kilograms because he had been starved.

Coroner Anderson released her findings on Wednesday.

“In the last six months of Malachi’s life, everything possible went wrong for him. Not only was the poor boy the victim of unspeakable cruelty and deliberate evil, potential opportunities to identify what was going on were not picked up by those who could have intervened,” she said.

“One reason for this is that Malachi’s interests were not given priority in important decisions that had a direct or indirect impact on his wellbeing.”

Anderson said the lack of focus on his safety and welfare effectively allowed the abuse to go unreported.

“This lack of focus on the primacy of his safety and welfare enabled the environment in which the tragic events of 1 November 2021 unfolded.”

She agreed with the Children’s Commissioner’s evidence that the violent abuse Malachi experienced, which caused his death, were grievous violations of his rights as a child under the United Nations Convention of the Rights of the Child.

In a statement, Jasmine Cotter urged the government and agencies to action the coroner’s recommendations.

“I would like to thank the Coroner for all her care and diligence during this process. I completely tautoko her findings and summary and beg the Government as a whole, and all of its separate Ministries and agencies to stop the compartmentalising,” Cotter said.

“Malachi and I were tragically failed by a system of silos – how many more whanau must die before these fragmented processes are corrected?

“As part of the work that has started, all agencies must urgently train and resource for child protection so that all staff understand the rights of every child to be protected. Please action this for Malachi – he is and will be forever loved.”

Malachi’s death sparked national outrage and a series of reviews into the child protection system – six government agencies completed reviews of their own processes, and chief executives also commissioned a system-wide review from the late Dame Karen Poutasi.

A 2024 review of the recommendations by the Poutasi Review found children were no safer than when Malachi had died and that the system change she had called for had not happened.

Coroner Anderson found change had been too slow.

“While a number of important changes have been made since Malachi was murdered, I do not consider that these are sufficient to reduce the likelihood of further deaths occurring in similar circumstances in the future.”

She made recommendations that aim to reduce the chance of further deaths occurring in similar circumstances in the future.

Anderson said these should be considered in conjunction with previous reports and recommendations made before and after Malachi’s death.

The inquest heard that in a 34-week timeframe between November 2021 and July 2022, doctors at Starship Hospital treated 16 children with serious abusive head trauma, almost one every two weeks.

Of those 16, six died including Malachi.

“Malachi is only one of many children who have lost their lives or suffered grievous injury due to the actions of a person who was meant to be caring for them,” she said.

“It is utterly heartbreaking to see similar themes and recommendations being made year after year, often with little evidence of substantive change taking place.”

Her recommendations include wide-ranging policy and practice changes and that the child protection system be properly resourced.

“Urgent action is needed to protect our tamariki and to address this national disgrace.”

During the inquest, the Children’s Commissioner Claire Achmad said it was devastating to her that Malachi’s life was cut short, and that he was prevented from flourishing and experiencing his potential.

“Malachi had the right to be growing up safe, loved, nurtured, and supported by his family, whānau, hapū, iwi and community to live a full life and to fulfil his full potential.”

The commissioner said the violent abuse experienced by Malachi and his death by homicide were grievous violations of his rights as a child under the UN convention.

Achmad later told RNZ she felt the government had taken positive steps since Malachi’s death, but those steps were too few.

“What’s clear to me is that the pace of change over the last few years since Malachi’s death … It hasn’t been urgent enough,” she said.

“That’s why I’m pleased that last year the government did accept the recommendations of the late Dr Dame Karen Poutasi, now it’s crucial that there is urgent and continued focus on making real those changes.

“Collectively we need to remember that every child death that occurs by abuse is 100 percent preventable, and put simply we can’t rest until all children in New Zealand are safe from this kind of harm.”

The Children’s Commissioner advocates for tamariki in the system while the Independent Children’s Monitor shares information about how well the system is performing.

The monitor is due to release a second review of the Poutasi Review’s recommendations next week.

Last October, the government accepted all the review’s recommendations and tasked child and youth ministers to oversee the government’s response to ensure children’s safety.

The monitor’s chief executive, Arran Jones, said this was heartening.

“Accepting the recommendations and putting a work programme in place is a start and part of our role from here will be to see how well those changes are implemented and are they making a difference.”

Jones said it was important to first ensure those that worked with children, including teachers and heatlh professionals, were trained to spot signs of risk and then know what do to.

“It’s incredibly sad, what happended to Malachi and the opportunities that were missed to keep him safe,” he said.

“What’s being raised here through his case [is] the opportunity to do better and the question is how quickly are we moving to do the things that are needed to be done, to keep children safe.”

Chief Ombudsman John Allen said Coroner Anderson’s recommendations underlined the need for improvement across the child protection sector.

“As the coroner has observed, repeated calls for change has been made over the years. There needs to be a sustained improvement in the way agencies in health, education, welfare, and justice connect with each other when it comes to identifying and reporting suspected child abuse,” Allen said.

The coroner said it was important Malachi’s death not frame how he was remembered.

“Malachi was a loving and cheerful child who was robbed of his future,” Anderson said.

“His story is an important one to tell, but the tragedy that befell him should not overshadow his memory or define the life that he lived. He was a treasured and cherished young boy who should be acknowledged and remembered in his own right, and not just as the victim of a barbaric and senseless crime.”

Mandatory reporting

During the inquest, the coroner considered whether there was any evidence that mandatory reporting of suspected child abuse to Oranga Tamariki by early childhood centres and schools might help reduce the chance of further deaths.

Many of the expert witnesses called for comprehensive training and education for those working with children to identify the signs of potential abuse.

The coroner noted that since then, the government had announced that mandatory reporting would be introduced, and Child Poverty Reduction Minister Louise Upston had recognised the importance of associated education and training.

Last October, Upston said work would start on designing a mandatory reporting regime, with a staged approach to maximise child safety while mitigating risk.

“This will begin with mandatory training for designated workforces to ensure people working in the system clearly know how to identify and report child abuse while also sequencing further action to build system capacity.”

Anderson recommended the Ministry of Education introduce mandatory standardised policies and training for early childhood education centres.

She also recommended the New Zealand College of General Practitioners consider whether there should be regular mandatory child protection education for GPs.

Oranga Tamariki

The coroner said changes within Oranga Tamariki, recommended in previous reports, were taking too long.

“The changes that must take place within Oranga Tamariki and other government agencies to make children safer have already been identified. They are just not happening fast enough.”

The Poutasi Review recommended the agency run a public awareness campaign to help anyone identify possible signs of abuse and how to take action – but that had still not happened.

Coroner Anderson said there were people who had contact with Malachi and his caregiver before his death who might have been in a position to intervene.

“It appears that they did not realise he was injured and/or they accepted Michaela’s false claims that the injuries were accidental, and that medical treatment had been sought. This demonstrates how important it is for the community to be equipped to identify possible signs of abuse and to take action.”

Anderson said a public awareness campaign about the red flags to look out for was a tangible action that could help prevent further deaths.

“It is hard to understand why this has not yet happened given the Oranga Tamariki Chief Executive’s statutory duties, and the previous recommendations that have been made about this matter, including by Dame Poutasi over three years ago.”

She recommended Oranga Tamariki prioritise and roll out an awareness campaign, and that “it must no longer be delayed”.

At the end of last year, the Children’s Commissioner launched an urgent nationwide campaign against child abuse, calling on every adult to front up to the problem.

Oranga Tamariki acting deputy chief executive for system leadership, Nicolette Dickson, said it was working alongside other agencies in the children’s system to consider the best approach to raising public awareness about how to recognise and respond to child abuse. 

She said the agency accepted the coroner’s findings and recommendations and had started work on the Poutasi Review recommendations.

“I can confirm Oranga Tamariki, as part of the wider children’s system, is working at pace to progress the recommendations, this builds on considerable changes Oranga Tamariki had already made to its own practices in relation to review findings.”

Dickson said a multi-agency hub opened earlier this month in Auckland, bringing together staff from six key children’s agencies.

“The role of the hub is to identify and address risks and make decisions about the safety and wellbeing for around 2000 children whose sole parent (or sole carer) is remanded in custody or sentenced to a term of imprisonment each year.”

She said the hub would aim to ensure information was shared safely and appropriately between key agencies to start an initial assessment within 48 hours.

“I acknowledge Oranga Tamariki has an important role in ensuring our communities can recognise possible signs of child abuse and know what action to take if they have concerns about a child’s safety and wellbeing.” 

Protecting children whose sole caregivers are in jail

Chief among the recommendations was that children of sole caregivers who were imprisoned should be identified and safeguards put in place to ensure their safety.

“I have formed the view that the arrangements made to ensure Malachi’s safety when [his mother] went to prison were grossly inadequate. This was not the fault of any single individual or agency,” Coroner Anderson said.

“It resulted from the absence of a clear, child-centred framework that could identify and respond to the particular risks that he was facing when his mother was incarcerated,” she said.

“There were no independent safeguards in place to ensure that Malachi’s safety and wellbeing were prioritised when initial decisions about his care were made.”

The coroner said it was “alarming” that Malachi was placed in the care of a third party with no requirement for oversight, vetting or prior checks.

His placement with Barriball became the subject of Family Court proceedings, when his mother Jasmine Cotter sought to formalise the agreement.

Anderson noted Cotter had been “completely deceived” by Barriball and was not in a suitable emotional or mental state to make a good decision about her son’s care.

“Given the inherent vulnerability of this cohort of children, this state of affairs is alarming. A heightened degree of scrutiny and oversight of their care arrangements is not merely warranted, but in my view is an absolute necessity,” she said.

“We cannot rely on parents to make the best decisions for their children in these circumstances.”

Anderson said there were too many complex factors at play and too much risk that may not be identified by parents in that situation.

She said Malachi would likely have benefited from a Gateway Assessment by Oranga Tamariki, a comprehensive assessment of his health, education and wellbeing, but this did not occur.

“Depending on the timing, such a process would also likely have picked up physical or other indicators that he was being abused. A comprehensive child focussed assessment when he left the care of his mother would have had few downsides, and many potential benefits.”

Anderson said that was a call to action.

“Take urgent action to identify dependent children when sole caregivers are incarcerated, and to ensure that there are independent safeguards to confirm that any care arrangements in place are safe and appropriate,” she said.

“More could, and should, be done to protect the rights of innocent children whose parents are imprisoned by the State.”

The coroner noted that the government had commited to enhancing the existing process, called Report of Concern, to ensure that children whose sole parent was arrested and/or taken into custody were identified and their needs were met.

A Cabinet briefing paper estimated that between 1280 to 1430 sole caregivers were sent to prison each year and this was estimated to affect about 2300 children.

“The paper records that modelling indicates that children whose parents are incarcerated have significantly worse outcomes than other children, and that there are further risks where the incarcerated parent is a sole caregiver and is therefore unable to monitor and ensure a child’s safety,” Anderson said.

Family Court

The coroner called for the Family Court to be adequately resourced and for lawyers acting for children to be trained to identify potential abuse.

Anderson looked at whether there were any matters arising from the Family Court proceedings, in progress at the time Malachi died, that could assist in preventing future deaths.

“The proceedings relating to Malachi’s care were given priority by the Family Court and a hearing was allocated on an urgent basis. While waiting for the hearing date, Malachi remained in the care of the woman who later murdered him. During this intervening period, he was abused and tortured.”

Important information about Malachi’s safety was not available to the court or to the lawyer who was appointed to represent Malachi.

“While I intend no criticism of the court in this case, the tragic circumstances demonstrate how crucial it is for the Family Court to be adequately resourced so that the court, and court participants, have the resources they need when dealing with matters that involve potential risk to children.”

She recommended the New Zealand Law Society engage with stakeholders including the Family Court to review the education and training requirements for lawyer for the child in order to strengthen the child protection components of the current framework.

“I acknowledge that practitioners who act as lawyer for the child are not specialist child abuse investigators, and their role is to make submissions to the court, not to give evidence. However, it is important for these practitioners to be equipped with up-to-date knowledge and skills that will assist them to obtain information relevant to the safety of the children they represent, and to identify possible risks.”

Training could include possible indicators of child abuse, factors that might place a child at increased risk (such as incarceration of a parent), and useful collateral sources of information (such as daycare centres).

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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand