Y v Chief Executive of the Ministry of Social Development [2012] NZHC 2774 (23 October 2012)

Last Updated: 21 November 2012

NOTE: PURSUANT TO S 437A OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT

1980. FOR FURTHER INFORMATION PLEASE SEE WWW.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-003162 [2012] NZHC 2774

IN THE MATTER OF an Appeal Pursuant to Section 341 of the Child, Young Persons and Their Families Act 1989

BETWEEN Y Appellant

AND CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

First Respondent

AND Y

Second Respondent

Hearing: 25 September 2012

Appearances: M Headifen for Appellant

T Hallett-Hook for First Respondent

No appearance by or for Second Respondent

C Wilson as Lawyer for Child

Judgment: 23 October 2012

_{RESERVED JUDGMENT OF FOGARTY J}

Introduction

[1] The appellant is the father of a six year old boy, Z, and had care of him. The

_{Family Court Judge (Judge J H Walker) has made the following orders:}

Y V CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT & Anor HC AK CIV-2012-404-

003162 [23 October 2012]

[167] An order is made that there is to be a declaration pursuant to s 14(1)(a) of the Children Young Persons and Their Families Act 1989.

[168] The existing s 78 order is discharged and there is to be a s 101 order giving the Ministry of Social Development interim custody of [Z].

[169] The father’s application for discharge of the s 78 order is dismissed. [170] Proceedings are adjourned for plan and report to be filed in the Court

and for the MSD to provide, if necessary, a brief for a s 178 report if that is

required. No doubt the outcomes of the specialist report may give some direction as to whether that is necessary.

[2] Section 14(1)(a) of CYPS provides:

14 Definition of child or young person in need of care or protection

(1) A child or young person is in need of care or protection within the meaning of this Part of this Act if—

(a) The child or young person is being, or is likely to be, harmed (whether physically or emotionally or sexually), ill-treated, abused, or seriously deprived; or

...

[3] A notice of appeal has been filed against the decision. It seeks: (i) That the order for declaration be discharged.

(ii) That the s 101 custody order be discharged.

(iii) That the child be placed back into the appellant’s care.

The three issues on appeal

[4] There are three issues on appeal:-

(i) Did the Family Court have the power to make the s 14(1)(a) “order”?

[5] This issue arises due to the fact that the record of the Family Group Conference (FGC) recorded that the matters of care or protection were considered by the conference under s 14(1)(b), (not s 14(1)(a)). The Judge was clearly applying s 14(1)(a) in [167], set out above. And he had rejected applying s 14(1)(b):

[166] Therefore, on the balance of probabilities I did not have sufficient information to find that [Z’s] development or emotional wellbeing has been, or is likely to be, impaired or neglected to the extent of being “serious and avoidable”.

[6] The question becomes whether the FGC requirement has been satisfied, in particular whether the requirements of s 72 of the Act have been met. Section 72(1) provides:

72 Court not to make declaration unless family group conference held

(1) Subject to subsection (2) of this section, the Court shall not make a declaration under section 67 of this Act that a child or young person is in need of care or protection unless a family group conference has been held under this Part of this Act (or, in the case of an application on the ground specified in section 14(1)(e) of this Act, under Part 4 of this Act) in relation to the matter that forms the ground of the application.

(2) Nothing in subsection (1) of this section applies in respect of any application to which section 70(2)(c) of this Act applies.

(3) Where an application is made to the Court for a declaration under section 67 of this Act, the Court may, at any stage of the hearing of that application, on the application of any party to the proceedings or of its own motion, direct a Care and Protection Co-ordinator to convene a family group conference in relation to the matter that forms the ground of the application.

(ii) Whether or not there is a right of appeal?

[7] This issue arises because although the Judge described it as an order in [167], above, it was a declaration, enabled by s 67 of the Act. The right of appeal is against decisions of the Family Court, which met the criteria in s 341.

67 Grounds for declaration that child or young person is in need of care or protection

A Court may, on application, where it is satisfied on any of the grounds specified in section 14(1) of this Act that a child or young person is in need of care or protection, make a declaration that the child or young person is in need of care or protection.

[8] The right of appeal is provided by s 341:

341 Rights of appeal against decisions of Family Courts

(1) This subsection applies to a decision of a Family Court, in proceedings under this Act, to—

(a) make or refuse to make an order (other than an interlocutory or interim order); or

(b) dismiss the proceedings; or

(c) otherwise finally determine the proceedings.

(2) A party to proceedings in which there is made a decision to which subsection (1) applies, a child or young person to whom the proceedings relate, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.

(3) A party to proceedings under this Act in a Family Court in which an interlocutory or interim order is made, a child or young person to whom the proceedings relate, or any other person prejudicially affected by the order, may, with the leave of the Family Court, appeal to the High Court against the order.

(4) An appeal under this section may be from the whole or part of the decision or order concerned.

[9] The argument is that none of the criteria in subs (1) apply to an appeal against a declaration made under s 67.

[10] The Court of Appeal in RL And Anor v The Chief Executive of the Ministry of Social Development And Ors[1] identified the issue but did not have to resolve it. The Court said:

[20] We now explain why we have rejected two possible arguments against allowing this challenge to proceed. First, it is often said judicial review should not be permitted in circumstances where a party could have appealed but chose not to. We heard no argument on whether a parent can appeal a declaration made under s 67. Section 341 confers rights of appeal, sometimes only with leave, from the making or refusal of orders, including interlocutory or interim orders, the dismissal of proceedings, or other final determination of proceedings. Is the making of a declaration the making of an order? We are not sure. Section 204, which permits applications for

rehearings, appears to draw a distinction between “declarations” and “orders”, which may mean that declarations can be tested only by rehearing, not by appeal. On the other hand, we note that appeals against s 67 declarations have been considered in RJF v Ministry of Social Development HC WN CIV-2009-485-1414 2 October 2009 and H v Chief Executive Officer of the Department of Child, Youth and Family Services [2007] NZFLR 802 (HC), although in neither case was there discussion about whether the High Court had jurisdiction to hear such an appeal. Jurisdiction was simply assumed. If it is the case that the making of a s 67 declaration is not appealable, then, of course, this potential objection to judicial review disappears.

[21] What if s 67 declarations are appealable, as we are inclined to think?

...

[23] In the end, we have decided it would be wrong to prevent the judicial review challenge going forward on this basis for the following reasons, taken together:

(a) whether they had a right of appeal is in doubt;

...

(iii) The merit of the decision of the Family Court.

[11] If the first two issues are resolved in favour of a right of appeal, then this

Court has to rehear the case on the record.

Background

[12] I take the background from the judgment under appeal, there being no challenge to the narrative.

[5] [Z’s] parents met in the Philippines, where they married. [Z] was born in the Philippines and they moved as a family back to New Zealand, where Mr Y had lived previously.

[6] Mr and Mrs Y separated in about 2007. Mr Y obtained a parenting order in respect to the day-to-day care of [Z].

[7] It is Mr [Y’s] evidence that following the separation the mother did not see [Z] very often, but subsequently had him in her care over weekends while Mr [Y] remained the full-time caregiver.

[8] The Departmental file indicates that a number of notifications were made in respect to [Z], the first being on 24 February 2008, when Mr [Y] had phoned the police distressed and suicidal in respect to his separation from his wife.

[9] There were a number of further notifications. Two of those notifications, on 28 July 2008 and 19 November 2009, involved situations where it was stated that Mr [Y] had physically assaulted [Z]. There were criminal charges laid. Mr [Y] pleaded guilty and was convicted and sentenced to a year of intensive supervision in respect to two charges of assault on [Z].

[10] There were a number of further notifications. On 13 November

2010, Mr [Y] was arrested while [Z] was in his care about midnight in Karangahape Road. Mr [Y] was charged with a number of offences, including assaulting a police officer and disorderly behaviour. He was convicted in respect to assaulting a police officer.

[11] The application made by CYF to the Court for a declaration and s 78 order arose from a notification made on 26 November 2010. This was a notification received by the police concerning Mr [Y], who had attempted to commit suicide by setting fire to himself in the car with two LPG bottles. The explosion blew Mr [Y] out of the car and was witnessed by a number of bystanders, and he was transferred to Middlemore Hospital with 13% burns.

[12] All this time Mr [Y] had been the main caregiver of [Z]. On the day he attempted suicide he had dropped [Z] off at school and asked Mrs [Y] to pick him up from school, which she did.

[13] The social workers subsequently met with the mother and it was agreed that [Z] remain in her care. Subsequently, however, it was found that Mrs [Y] had handed [Z] back to Mr [Y].

[14] The Ministry had had a phone call from St Luke’s Mental Health Services stating it was their view it was not appropriate that Mr [Y] had [Z] in his care, and advising that they were discharging Mr [Y] because he was non-compliant with attendance at that clinic and with medical advice.

[15] There were a number of meetings; the first on 22 December 2010 to discuss MSD’s concern and the breach of Mrs [Y’s] agreement of having placed [Z] back in the care of Mr [Y].

[16] At a meeting on that day a family whanau agreement was formulated on the basis of [Z] remaining in his father’s care and living at the home of Mr [A] with him. It was stated that this was also on the basis of Mr [Y] accessing Community Support Services to meet his needs and mental health issues.

[17] On 12 January 2011 it would appear that the police informed the Ministry of a threatened second suicide attempt. The evidence indicates that this, in fact, was a repeat of the earlier incident and there is no evidence to substantiate it occurred.

[18] On 14 January 2011 a safety plan for [Z] was formularised which ensured that Mr [Y] had a support person with both himself and [Z]. He nominated Mr [A] for this role.

[19] On 17 January 2011 there was a review meeting involving the mother, the father, family members, Mr [A], and a co-ordinator from SHINE, which indicated there had been an altercation between Mr [A] and Mr [Y]

and he was no longer prepared to be a support person. There was no other person available to undertake this role. Consequently the mother signed a temporary care agreement which was to expire on 16 February 2011.

[20] Subsequently an application was made by the MSD to the Family

Court for a s 78 custody order and a declaration. An order was made on

11 February 2011 for a s 78 interim custody order in favour of the MSD.

Issue One – Did the Family Court have the power to make the order?

[13] The application made by the Ministry of Social Development (MSD)sought a declaration to be made on the grounds set out in ss 14(1)(a) and (b) of the Act. Section 70(1) of the Act provides:

70. No application to be made unless family group conference has been held
    

(1) Subject to subsection (2) of this section, no application for a declaration that a child or young person is in need of care or protection may be made unless a family group conference has been held under this Part of this Act (or, in the case of an application on the ground specified in section 14(1)(e) of this Act, under Part 4 of this Act) in relation to the matter that forms the ground on which the application is made.

[14] See also s 72(1) set out above at [6].

[15] An FGC was, in fact, held on 31 May 2011. No issue was taken by counsel to the fact that it took place after the application for an order was made. It was certainly before the application was heard by the Court. Sections 28 and 29 of the Act provide:

28 Functions of family group conference

The functions of a family group conference convened under this Part of this

Act are as follows:

(a) To consider, in relation to the child or young person in respect of whom the conference was convened, such matters relating to the care or protection of that child or young person as the conference thinks fit:

(b) Where the conference considers that the child or young person in respect of whom it was convened is in need of care or protection, to make such decisions or recommendations, and to formulate such plans, in relation to that child or young person as the conference

considers necessary or desirable, having regard to the principles set out in sections 5, 6, and 13 of this Act:

(c) To review from time to time—

(i) The decisions and recommendations made, and the plans formulated, by that conference:

(ii) The implementation of any such decisions, recommendations, and plans.

29 Family group conference may make decisions and recommendations and formulate plans

(1) A family group conference convened under this Part of this Act may make such decisions and recommendations and formulate such plans as it considers necessary or desirable in relation to the care or protection of the child or young person in respect of whom the conference was convened.

(2) In making such decisions and recommendations and formulating such plans, the conference shall have regard to the principles set out in sections 5, 6, and 13 of this Act.

(3) Every Care and Protection Co-ordinator who convenes a family group conference shall cause to be made a written record of the details of the decisions and recommendations made, and the plans formulated, by that conference pursuant to this section.

[16] The written record, completed to comply with s 29(3), relevantly says:

Matter(s) of care or protection considered by conference:

Section 14(1)(b)

(1) A child or young person is in need of care or protection within the meaning of this Part of this Act if-

(b) The child’s or young person’s development or physical; or mental or emotional wellbeing is being, or is likely to be impaired or neglected, and that impairment or neglect is, or is likely to be, serious and avoidable or

Jurisdiction for the conference: Section 18

“No agreement was reached as to Care and Protection pursuant to

Section 14(1)(b) of the Child Young Persons & Their Families Act 1989.

The matter has therefore been returned to the social worker as per the requirement of Section 31 Child Young Persons & Their Families Act 1989

[17] Section 31(1)(d) relevantly provides:

31 Procedure where no agreement possible

(1) Where –

...

the Care and Protection Co-ordinator who convened the conference –

...

(d) Shall, where proceedings have been commenced under this Act in any Court in relation to the child or young person in respect of whom the

conference was convened, report the matter to that Court:

...

[18] Two of the three counsel before the High Court were present at this FGC, Mr Headifen and Ms Wilson. Neither counsel were able to inform the Court from the bar whether s 14(1)(a) matters were discussed. This is because of the terms of s 37 which provide:

37 Proceedings of family group conference privileged

(1) No evidence shall be admissible in any Court, or before any person acting judicially, of any information, statement, or admission disclosed or made in the course of a family group conference.

(2) Nothing in subsection (1) of this section applies to a record made by a Care and Protection Co-ordinator under section 29(3) of this Act.

[19] Mr Hallett-Hook for MSD invited me to infer that s 14(1)(a) would in fact have been considered. For a significant part of the history leading up to this conference involved public complaints that Z had been ill-treated by his father. Mr Gumbeze, a social worker appointed by MSD and assigned to the case of Z, swore an affidavit in the Family Court proceedings. In the history, he recorded notifications to MSD which I summarise as follows:

(i) On 2 April 2008, the appellant was living in a boat with a two year old child.

(ii) On 28 July 2008, the appellant was sighted hitting a child’s head with a closed fist at Grey Lynn Foodtown car park and thereafter left the child alone in the car for approximately 20 minutes.

(iii) On 19 November 2009, the appellant was sighted assaulting a child.

The notifier was concerned about the child’s wellbeing because the

child was hit on his head and forcibly thrown into a car. After enquiry, the appellant admitted the incident, stating that the incident was a result of Z trying to run into the road.

(iv) On 2 August 2010, the appellant was observed verbally and physically abusing Z at Westmere Kindergarten.

(v) On 17 September 2010, Z was left alone without adult supervision at Cox’s Bay Park from 4.00 pm to 5.45 pm. Z was known to the notifier and he informed the notifier that his father had gone to play tennis.

(vi) On 13 November 2010, the appellant was arrested shortly before midnight along Karangahape Road for disorderly behaviour. The arrest took place after the police were tipped by the public due to the level of the appellant’s intoxication and his several attempts to get into different bars with Z.

[20] I am satisfied on the balance of probabilities that consideration of whether or not Z needed protection from his father by reason of being harmed physically and emotionally and ill-treated and abused would have been discussed in the FGC. An application had already been filed in the Family Court making that allegation by MSD. It is extremely unlikely that the events listed above would not have been either already known to members of the family or not drawn to their attention.

[21] In this particular context there is a direct relationship between the ill- treatment of Z and consideration of whether he “is being, or is likely to be, harmed ... ill-treated, abused or seriously deprived,” (see s 14(1)(a)).

[22] While there has been a breach of s 29(3) in that the co-ordinator has not accurately made a written record of the decision by the FGC in this regard, (s 14(1)(a)), I am satisfied that s 72(1) has been complied with.

[23] I distinguish on the facts the decision of Courtney J in the High Court in H v Chief Executive Officer of The Department of Child, Youth and Family Services.[2] In that case there had been an FGC but 14 months before a declaration that the children were in need of care and protection under s 67 of the Act. That declaration had relied on circumstances that had changed between that conference and the hearing. Courtney J said:

[35] ... A conference that satisfies s 72(1) must address the specific matters said to provide the basis on which the grounds under s 14 will be made out. Where the exact nature of the discussion is unknown the only means of deciding that is by comparing the circumstances that existed at the time of the conference and those that existed at the time of the hearing. If the circumstances of a family have changed significantly between a conference and the hearing the family group conference is unlikely to satisfy s 72(1).

[24] This was not the situation here. On the contrary, the Family Group Conference was held within six months of the events being relied upon and in respect of the same facts being relied upon for the declaration to be made in the Family Court.

Issue Two – Is there a right of appeal?

[25] Mr Headifen raised this issue, properly, at the hearing, but caught Crown counsel by surprise. I called for further submissions. Mr Headifen, counsel for the appellant, agreed with Crown counsel submissions by Mr Hallett-Hook that there is a right of appeal. Because of the agreement between counsel, I will not detail the reasoning.

[26] The question for the Court is whether a decision by a Family Court to make a s 67 declaration is a decision in proceedings under the CYPF Act to:

(i) Make or refuse to make an order (other than an interlocutory or interim order) (s 341(1)(a)); or

(ii) Dismiss the proceedings (s 341(1)(b)); or

(iii) Otherwise finally determine the proceedings (s 341(1)(c)).

[27] Counsel agree it is debatable whether a decision to make a s 67 declaration constitutes “making an order.” However, they agree it is unnecessary to determine this issue, as a decision to make a s 67 declaration is a decision which “finally determines” an application for a declaration, meaning a right of appeal is available under s 341(1)(c).

[28] The High Court has heard appeals against s 67 declarations on a number of occasions.[3]

[29] The issue was not live on those cases. The number of cases, however, do tend to suggest that appeals against declarations have not been identified by counsel or the Judges to raise a doubt as to jurisdiction. This is probably because a s 67 declaration is a pre-requisite to the making of a range of orders which then become subsequently available to the Family Court. These range from a discharge of the proceeding without further order under s 83(a) through to services, support, custody and guardianship orders under ss 86, 91, 101 and 110, respectively.

[30] I am satisfied that a s 67 declaration has a finality in its own right, opening the door to the ability for further applications to be made. Keane J came to a similar decision in H v Chief Executive of the Department of Child Youth and Family Services.[4]

[31] I am satisfied that Parliament intended there be a right of appeal against decisions which have finality. By the scheme of this Act declarations do have

finality. To decide otherwise would be contrary to the scheme of the Act, which provides for appeals to this Court on all significant decisions under the Act.

Issue Three – The merit appeal

[32] This is an appeal on the record. The guidance of the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar[5] is applicable. Accordingly, the appellant bears the onus of satisfying this Court that it should differ from the decision under appeal. It is only if the appellate Court considers the decision is wrong that it is justified in interfering with it.[6]

[33] The appellate Court can take into account the fact that the Family Court had the opportunity to assess the credibility of witnesses, and in particular to hear the appellant both in his evidence-in-chief and in his cross-examination.[7] It being a general appeal, however, the appellate Court has the responsibility of arriving at its own assessment of the merits of the case.[8]

[34] As will be already apparent from the narrative of facts, which are not disputed, the social workers had grounds for concern about the welfare of Z. They tried to arrange two other placements, leaving Z in contact with his father; one where he lived with Mr A, the other where he lived with the appellant’s sister. Both failed. Their concerns crystallised with the suicide attempt in November.

[35] The social worker has painted a history of violence and abuse of the child, running from 2008 to 2010, largely indicated by complaints by the public. The authority was entitled to take the view that such abuse was likely to also be taking place in private. On top of that the appellant had suicidal episodes, both of thinking about it, and on two occasions trying to act upon it. On one occasion, he had

_{significantly left the child unsupervised.}

.

[36] Judge Walker’s decision contains more detail on the incidents that I have summarised. Pertinently it included that the caregivers who took over Z in January of 2011 found him physically violent, swearing and generally difficult. They found his behaviour troubling. The social worker had expressed a concern about Z living on a boat with his father. The social worker was also concerned with the emotional abuse around the father’s use of language and methods of discipline, and he connected this to Z’s level of unsettling behaviour when first placed in care, as noted by his caregivers, and by his school.

[37] The Judge noted, and there is no dispute about this, that the appellant loves Z and that he and Z’s mother have a good relationship with the boy. It was the father’s position that there is no likelihood of any further suicide attempts.

[38] Ms Wilson as lawyer for the child reported that the boy did want to live firstly with his Mum, his Dad or both of them. She was of the view that both parents love him and he loves them.

[39] Judge Walker formed the view, relying on both the evidence of the social worker and cross-examination of the appellant, that he did not have insight into his behaviour to recognise the impact of it on Z. She was satisfied on the balance of probabilities of a likelihood of future harm both physically and emotionally to Z. She judged that the appellant appears to have little control in his external behaviour and continues to display behaviour which is likely to put Z at risk.

[40] I have come to the same view. I think there is no doubt that a declaration in terms of s 14(1)(a) is justified. There was no challenge to the merit of the consequence of making the declaration, the s 101 order giving MSD interim custody.

[41] The appeal on the merits is dismissed.

Solicitors:

Michael Headifen, Auckland - [e-mail]

Crown Law, Wellington – [e-mail]

Steindle Williams Legal, Auckland – [e-mail]

---

[1] RL And Anor v The Chief Executive of the Ministry of Social Development And Ors [2009] NZCA 596.

[2] H v Chief Executive Officer of The Department of Child, Youth and Family Services [2007] NZFLR 802 (HC).

[3] See for example RJF v Ministry of Social Development HC Wellington CIV-2009-485-001414, 2

October 2009; A T v Chief Executive of Ministry of Social Development HC Auckland CIV-

2009-404-001523, 4 September 2009; BSH v Ministry of Social Development HC Wellington CIV-2009-485-000403, 13 August 2009 (leave to appeal declined on the basis that application was out of time); DP v Department of Child Youth and Family Services [2008] NZFLR 896 (HC).

[4] H v Chief Executive of the Department of Child Youth and Family Services HC Auckland CIV-

2006-404-5311, 12 February 2007 (“H v CYFS”).

[5] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).
[6] Ibid, at [4].
[7] Ibid, at [5].
[8] Ibid