MJV v Chief Executive of the Ministry of Social Development [2012] NZHC 574 (29 March 2012)

Last Updated: 10 April 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1603 [2012] NZHC 574

IN THE MATTER OF the Children Young Persons and Their

Families Act 1989

BETWEEN MJV Appellant

AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing: 14 March 2012

Counsel: MJV (In person) Appellant

D Harris and R Moran for Respondent

C Dellabarca for Children

Judgment: 29 March 2012

_{JUDGMENT OF MILLER J}

Introduction

[1] N and B, aged four and two respectively, have been placed in the custody of foster parents by Child, Youth and Family Services (CYFS), pursuant to a custody order under s 101 of the Children, Young Persons and their Families Act 1989.

[2] Their mother, Ms V, applied to have this custody order discharged and the children returned to her care. On 15 July 2011 the Family Court dismissed Ms V’s application. She appeals that judgment.

[3] At the end of the hearing I explained that the appeal would be dismissed. What follows are my reasons.

MJV V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV-2011-

485-1603 [29 March 2012]

Background

[4] N and B were born while Ms V was living in the household of B’s father and grandmother. There has been a history of notifications to CYFS in respect of both children. Ms V, along with B’s father, would smack N, feed her cold milk and food, and smoke cannabis in her presence. Living conditions in the house were bad because of overcrowding and smoking. Ms V was often subjected to verbal abuse in the presence of the children.

[5] The relationship between Ms V and B’s father broke down, leading B’s grandmother to obtain an interim parenting order, which gave her day to day care of both children, in December 2009.

[6] Ms V remained in the paternal family household, but the relationship between her and B’s father turned violent. In March 2010, Ms V attempted suicide. She moved out of the paternal family household on 17 March and now resides in a Housing New Zealand home.

[7] CYFS held a Family Group Conference in April 2010 about the children. The family and CYFS could not reach an agreement. As a result, the Chief Executive was granted an interim custody order on 5 May 2010. The Court accepted that B’s grandmother was not fit to care adequately for both children because of the risk of harm to the children if they were to remain in the paternal family household. She had been unable to prevent violence in the household in the past. There is also a history of sexual abuse in the family, albeit not involving the children. The children were placed in a foster home.

[8] A declaration that the children were in need of care and protection was made on 26 May 2010. CYFS made a care and protection plan, with the primary goal of returning the children to Ms V’s care if appropriate. In September the Court approved this plan and made the custody order in favour of the Chief Executive. Under the plan, Ms V has access to the children twice a week.

[9] Ms V also underwent a psychological analysis, which was conducted by Kim Narsi. As a result of Ms Narsi’s report the plan was amended on 14 December 2010, the primary goal now being that the children were to be placed in a non-kin home for life, not in Ms V’s care.

[10] Ms V applied to have the s 101 custody order discharged and opposed the amended plan. The Family Court dismissed the application and upheld the amended plan in the judgment under appeal.

The Family Court Judgment

[11] Before the Judge was evidence of Ms Narsi, the social workers involved and Ms V’s cousin. The Judge began by considering the psychologist’s report and findings. Ms Narsi reported that Ms V had been very socially isolated since leaving the paternal family home. Her intellectual functioning is in the “low average” range. She lacks capacity for flexibility in parenting, meaning that she cannot problem- solve. Several risk factors were identified, being that Ms V:

a) is single;

b) has financial difficulties including difficulties managing her money;

c) has a past history of depression;

4. has had previous exposure to physical and emotional abuse which would sensitise her to stress;
   
5. suffers from social isolation and lack of social supports which reduce her coping skills;
   
6. has had previous exposure to parent training, which did not improve her parenting skills;
   
7. previously engaged in intimate relationships that have been abusive and harmed the children; and
   

h) has two preschool children who naturally require intensive parenting.

[12] The report concluded that although Ms V can ensure that her children are physically safe, she is less able to meet their needs in social and emotional areas of their development. Ms Narsi recommended Ms V needed daily support, intensive skills acquisition, monitoring and reassessments, to move to Dunedin for her father’s support, to avoid intimate relationships to focus on her parenting, and to undergo individual counselling.

[13] Ms V gave evidence that she wished to move with the children to Dunedin, where family support was available and organisations could help her. The Judge summarised evidence from the social workers, who said that the intensive support Ms V needs to parent could not be provided. One commented that when other adults are around Ms V relies on them to manage and parent the children. Further, when Ms V visits the children, they are left alone on the couch, permitted to see their father when that was not allowed by the Ministry and brought back in a dirty state.

[14] The Judge emphasised that the paramount consideration is the welfare and best interests of the children. The children are in urgent need of a stable, long term placement, so the longer the delay the more prejudice to their development. Although Ms V had family in Dunedin, there was no evidence to show they could provide the high level of support required. Ms V has not taken any positive steps to improve her parenting skills. Reasoning that little is likely to change, the Judge declined to wait for Ms V to improve her parenting skills, to order more Family Group Conferences, or to order further research into options for support.

The relevant statutory context

[15] Section 5 of the Children, Young Persons and their Families Act sets out principles that guide a court. Section 5(b) records the principle that :

wherever possible, the relationship between a child or young person and his or her family, whanau, hapu, iwi, and family group should be maintained and strengthened.

[16] Further principles are set out in s 13. They include the following:

1. children and young persons must be protected from harm, their rights upheld, and their welfare promoted;
2. the primary role in caring for and protecting a child or young person lies with the child's or young person's family, whanau, hapu, iwi, and family group, and that accordingly—
   

b)(i) a child's or young person's family, whanau, hapu, iwi, and family group should be supported, assisted, and protected as much as possible; and

b)(ii) intervention into family life should be the minimum necessary to ensure a child's or young person's safety and protection;

100. it is desirable that a child or young person live in association with his or her family, whanau, hapu, iwi, and family group, and that his or her education, training, or employment be allowed to continue without interruption or disturbance;
     

4. where a child or young person is considered to be in need of care or protection, that, wherever practicable, the necessary assistance and support should be provided to enable the child or young person to be cared for and protected within his or her own family, whanau, hapu, iwi, and family group;
   
5. a child or young person should be removed from his or her family, whanau, hapu, iwi, and family group only if there is a serious risk of harm to the child or young person; and
   
6. where a child or young person is removed from his or her family, whanau, hapu, iwi, and family group, that wherever practicable, the child or young person should be returned to, and protected from harm within, that family, whanau, hapu, iwi, and family group.
   

[17] However, all of these principles are subject to s 6:

...the welfare and interests of the child or young person shall be the first and paramount consideration, having regard to the principles set out in sections

5 and 13.

Grounds of appeal

[18] Ms V represented herself on appeal, legal aid having been withdrawn. Her submissions can be divided into two grounds based on her notice of appeal and her oral submissions. First, the Family Court overlooked the principle that family

relationships should be sustained. Second, the Judge put insufficient weight on certain facts and too much on others. She submitted that:

a) the children had been removed from the care of B’s grandmother

when Ms V had left the paternal family household;

b) the Judge did not explore the possibility of there being further evidence showing support was available for Ms V, and should not have relied on CYFS evidence as they did not adequately investigate the question;

c) the Judge did not give due regard to her power to direct FGCs to formulate a plan for support, to made service and support orders to assist Ms V;

d) the plan was not detailed enough; and

e) the Judge put too much emphasis on having a timely decision made. [19] At the hearing before me Ms V abandoned her proposal to move to Dunedin.

Sadly her father has died.

Discussion

The first ground of appeal - the Judge made an error of principle

[20] I am satisfied that all the relevant statutory principles were considered by the Judge, including those advocating the interests of the family and Ms V’s guardianship rights. Over the course of this litigation, the same Judge has evaluated placements with the children’s fathers, the maternal and paternal grandmothers, and Ms V. However, the Judge rightly concluded that the interests of the children are of paramount importance. Sections 5 and 13 are subject to s 6.[1] There was no error of

_{principle or failure to take relevant matters into consideration.}

[21] This ground of appeal fails. The appeal turns on questions of fact, to which I

now turn.

The second ground of appeal – factual considerations

[22] The psychological report outlines a number of risk factors associated with Ms V’s parenting. They are entrenched, meaning that they go to her capacity to parent rather than her attitude. She cannot provide the emotional support required for the children alone. Indeed, she has never actually parented the children alone. She shared the parenting until B’s grandmother took over. In order to parent these children at all, Ms V needs intensive intervention, including a high degree of family support. She has made no efforts to improve her parenting skills, although it is obvious that this would aid her position. She felt that the Ministry should have made her take courses. She told me that she is now attending a parenting course, but there is no evidence about it and it seems unlikely that any single course could make much difference.

[23] Ms V has withdrawn her proposal to go to Dunedin, and in Wellington she has very little family support. I observe that Ms Narsi concluded that Ms V has no social support in the area where she lives and is socially isolated as she feels unsafe in the Wellington area. There is no evidence that state or other agencies can provide the necessary parenting support, which would involve daily visits. I am told by counsel for the respondent that it does not accept that the necessary support is available in Wellington.

[24] Further, Ms V has a tendency to enter into and carry on violent relationships. She does not understand the risks that such relationships can pose to her children. When I asked her whether she is in a relationship, she said that she is not, but would like to be.

[25] Since August the children have been in a successful placement which offers them long term stability and parenting that meets their needs. Counsel for the children submitted that their interests and wellbeing would not be served by changing that arrangement, which rests on the custody order. The children are

already emotionally compromised by their early exposure to family violence and severe disruption to attachment relationships as a result of multiple shifts of caregivers. Holding more FGCs or conducting further research into support is not going to change the sad reality that Ms V cannot parent them. I accept these submissions.

[26] In the end this is a very clear case. The Family Court Judge was right to

dismiss Ms V’s application.

Conclusion and relief

[27] The appeal is dismissed. In the circumstances I make no order as to costs.

Miller J

Solicitors:

Crown Law, Wellington for Respondent

Wellington Family Law, Wellington for Children

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[1] B v Department of Social Welfare [1998] 16 FRNZ 522 at 525; and In the Matter of the S Children

[1994] NZFLR 971 at 981.