HC v PS CA115/06 [2006] NZCA 465 (18 October 2006)

Last Updated: 3 February 2014

NOTE: ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA115/06

BETWEEN HC Appellant

AND PS Respondent

Hearing: 18 September 2006

Court: William Young P, Robertson and Arnold JJ Counsel: A M Courtney for Appellant

A J Davies and F C Murray for Respondent

Judgment: 18 October 2006 at 2.30 pm

_{JUDGMENT OF THE COURT}

_{The application for leave to appeal is dismissed.}

REASONS OF THE COURT

_{(Given by William Young P)}

HC V PS CA CA115/06 18 October 2006

[1] Section 6 of the Care of Children Act 2004 requires a Court hearing proceedings involving a child both to provide the child with reasonable opportunities to express views and, as well, to take such views into account. In a judgment delivered on 12 May 2006, Randerson J held that this section applied in the case of a child who was a little over four years old at the time of the hearing in the Family Court and the Family Court had been wrong not to seek the views of that child and take them into account. Randerson J nonetheless dismissed the appeal from the Family Court judgment on the basis that:

The failure to provide a reasonable opportunity for the child to express her views was not material since there is no reasonable prospect that any views obtained could have affected the outcome of the case.

[2] The present application for leave to appeal against that decision was presented on the basis that:

To find that a child is able to express views, but for all that they need not be obtained on the basis they will not affect the outcome was contrary to the clear wording of s 6(2) of the Care of Children Act 2004.

[3] This proposition was developed in written submissions in this way:

The Court [ie this Court] is asked to rule that it is wrong in law that a child’s views ought not be ascertained if the outcome is found to be a foregone conclusion.

[4] Those contentions miss the point. Randerson J held that there had been a requirement to ascertain the views of the child and he plainly did not hold that those views “need not be obtained” or “ought not be ascertained”. Rather, he was looking at the situation after the event, where a decision had been made and s 6 had not been complied with. What he had to decide was whether there should be a rehearing.

[5] In the course of argument, Ms Courtney for the appellant accepted that her argument came down to the contention that once Randerson J found that s 6(2) of the Act had not been complied with, he was required to allow the appeal. Some support (albeit faint) for this argument is to be found in the judgment of Priestley J in Brown v Argyll AK HC CIV 2005-463-000018 9 May 2006 at [45] where he indicated that any judgment in a case in which s 6(2) had not been complied with

would be “jurisdictionally suspect”. As well, the judgment of Randerson J has been criticised by Professor Mark Henaghan on the basis that the reason for obtaining a child’s view is “not to determine the outcome of the case” but rather “to listen to the child, to show respect to the person who the decision is about,” see [2006] NZ Family Law Journal 54.

[6] We do not accept that the failure to comply with s 6 of the Act meant that judgment of the Family Court was void or ultra vires; cf AJ Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1. A rehearing in this case would not have been a cost-free option. Leaving aside the financial costs, such a rehearing would have caused more upset and trouble for the appellant and respondent and this would be likely to have had associated adverse consequences for the child. Once Randerson J was satisfied that the breach had no material impact on the outcome of the proceedings, the ordinary rules of appellate practice mean that there was no requirement to direct a rehearing in the Family Court. Addressing the point made by Professor Henaghan, we are inclined to think that the direction to take the views of the child into account suggests the purpose of the exercise is associated with outcomes and not just process. But in any event, directing a rehearing is not necessarily the most sensible way of redressing a breach of a child’s rights under s 6. It would obviously not be a sensible remedy if such a rehearing would be inconsistent with the best interests of the child (as may have been the case here). It follows that once Randerson J concluded that there was a breach of s 6, there was still a decision to make as to the consequences of that breach. So the argument that the Judge did not have a discretion has no prospect of success

[7] In the circumstances we see no legitimate basis upon which leave to appeal ought to be granted. The application is dismissed accordingly.

[8] We note in passing that we were told from the bar that the views of the child have subsequently been obtained and, on the basis of what we were told, they would not have materially assisted the cause of the appellant.

[9] We also note that there was some discussion in the course of argument as to whether s 6 applied to the hearing before us. The proposed appeal in this case was based on a legal argument which we have held is unsustainable. Despite the generality of the language of s 6, it must be applied in a sensible way. There is not much point in requiring a Court to ascertain the views of a child who is not capable of having or forming a view which is material. As to this, we see some flexibility in the expression “reasonable opportunities”. We accept, as Randerson J did, that even a child as young as four could have and express views which might be material to her care arrangements and which therefore ought to be taken into account when decisions are being made about those arrangements. But a child of five (which is how old she now is) could hardly be expected to have and express views which would be material to the issue on which we have decided this leave application – the legal consequences of a failure to comply with s 6. In those circumstances we concluded that it was not necessary for us to seek the views of the child in relation to the current application.

Solicitors:

A M Courtney, Wellington for Appellant

Willis Toomey Robinson, Napier for Respondent