TWA v HC [2016] NZHC 1765 (1 August 2016)

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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

UNDER	The Habeas CorpusAct 2001
IN THE MATTER	of an application to determine if the liberty of S is being unlawfully restrained
BETWEEN	TWA Applicant
AND	HC First Respondent
AND	THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT _{Second Respondent}

Hearing:	11 and 14 July 2016
Appearances:	Applicant in person (appearing via AVL) JM Attfield for First Respondent C Paterson for Second Respondent, appearing on 11 July O Klaassen for Second Respondent appearing on 14 July
_Judgment:	_{1 August 2016}

[1] TWA is a sentenced prisoner. During his imprisonment, he fathered a daughter, S, who was born in 2007 at which time her mother was also imprisoned. S has lived under the foster care of HC, the first respondent, since soon after her birth. The Chief Executive of the Ministry of Social Development, the second respondent, had legal custody of her for most of this time.

[2] The situation changed in late 2014, when Judge Neal made various orders in the Family Court relating to S’s care and upbringing, including an order granting HC guardianship and day-to-day care of her. They were made with TWA’s express consent and, given that he has been in prison all of S’s life and remains there, TWA reasonably and responsibly accepts that S should stay in HC’s care.

[3] But TWA challenges the legal basis for the Judge’s orders and applies for a declaration that the orders were unlawful and invalid, arguing that they were made outside the powers conferred on the Family Court in the relevant legislation. He also applies under the Habeas Corpus Act 2001 for a writ of habeas corpus on the basis that S is unlawfully detained as a consequence of the orders being invalid.

[4] Because they were both serving prison sentences when S was born, her parents acknowledged that it was not feasible for her to be in their day-to-day care. They agreed that she should be placed under the parens patriae jurisdiction of the High Court from the date of her birth until more suitable arrangements could be made by the Family Court.

[5] Shortly thereafter, the Family Court made an interim custody order in favour of the Ministry of Social Development. That interim order remained in force until September 2012, when a custody order was granted in favour of the Chief Executive of the Ministry of Social Development under to s 101 of the Children, Young Persons and Their Families Act 1989 (“CYPFs Act”). S’s parents remained her joint

guardians until her mother died in mid-2014, at which point TWA became her sole legal guardian.¹

[6] Under a contracting arrangement with the Ministry of Social Development, HC has been S’s foster caregiver since shortly after her birth. HC is not related to S and S’s placement with her is a non-kin placement. HC, however, considers S to be her daughter, and a much loved and cherished member of her family.

[7] TWA had regular supervised visits with S for the first few years of her life. These visits no longer occur, on the basis that S is said to have expressed a firm wish not to see her father. More recently, however, TWA and HC began to engage in email communication about S and her life.

[8] In early 2014, HC filed an application to discharge the existing s 101 custody order which had given the Chief Executive custody of S. Under the Ministry’s Home for Life placement policy, HC sought parenting and guardianship orders in respect of S under the Care of Children Act 2004. The Ministry supported the applications and HC says she understood that TWA, as well as S’s maternal grandparents, supported the applications.

[9] On late 2014, Judge Neal held a settlement conference in the Family Court about the applications. TWA participated by audio-visual link. With the consent of all parties, Judge Neal discharged the existing s 101 order and made the following orders about S’s care (the “Family Court orders”):

(a) An order pursuant to s 110(1) and (2)(b) of the CYPFs Act appointing the Chief Executive as an additional guardian of S for limited purposes broadly related to social work and financial assistance.

(d) A parenting order in favour of TWA under s 48 of the Care of Children Act, providing that he shall have supervised contact with S when she requests that.

[11] TWA argues that the Family Court orders are invalid and unlawful because they are inconsistent with s 120 of the CYPFs Act. The section provides:

78 or section 101 or section 110 of this Act, none of the following may be made under the Care of Children Act 2004:

(b) an order about the role of providing day-to-day care for that child or young person; and

(c) an order for contact with that child or young person. (1A) Subsection (1) is subject to subsection (2) and section 117(2).²

[12] TWA submits that s 120 plainly prohibits a court from making the Care of Children Act orders listed in subs (1)(a)–(c) where such orders would exist alongside an order under ss 78, 101 or 110 of the CYPFs Act. He submits that because Judge Neal appointed the Chief Executive as an additional guardian under s 110 of the CYPFs Act, he was prohibited from making the contemporaneous day-to-day care

_{and guardianship orders in favour of HC under the care of Children Act;
they are}

thus unlawful and invalid. He argues further that, because there is no lawful basis for S’s being in HC’s custody, the child is detained and the Court should issue a writ of habeas corpus requiring that she must at once be set at liberty.

[13] On behalf of HC, Ms Attfield submits that S is not unlawfully detained. She argues that S is in the guardianship and day-to-day care of HC as the result of an order of a court of competent jurisdiction. The proper interpretation of s 120 of the CYPFs Act, considered purposively and in context, restricts the making of the orders under the Care of Children Act only where there is a pre-existing order under ss 78,

101 or 110 of the Act. She argues, in effect, that Parliament could not have intended to prevent a court of competent jurisdiction from making complementary orders under the CYPFs Act and Care of Children Act orders simultaneously, which is what Judge Neal did in this case. Ms Klaassen, for the Chief Executive, supports that view.

[14] Even if I were to adopt TWA’s interpretation of s 120 of the CYPFs Act and declare the Family Court’s orders unlawful, there is an obvious and insurmountable obstacle to TWA’s application for a writ of habeas corpus: S is not detained.

[15] The substantive purposes of the Habeas Corpus Act are “to reaffirm the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty ... [and] to make better provision for restoring the liberty of persons unlawfully detained...”.³Under the Act, “detention” includes “every form of restraint of the liberty of the person”.⁴

[16] It is well established that in habeas corpus cases involving child custody disputes detention is to be more broadly considered from the perspective of whether

_{a person has improper control over a child’s “nurture,
control and education”.}⁵_But,

⁵Barnardo v McHugh [1891] 1 QB 194 at 204. Today, these matters would likely overlap with

irrespective of the lawfulness or validity of the Family Court’s orders and any technical impropriety, the evidence makes it clear that S wants to be the in the care and protection of HC; that TWA, who has a natural parent’s rights of guardianship, is also content for her to be there; and that it is in her best interests. There is no involuntary detention and no-one argues to the contrary. It follows that S is not restrained and her liberty is not in question.

[18] Notwithstanding the fundamental flaw in TWA’s habeas corpus application, I acknowledge that it is founded on a submitted answer to a question of law which is important. I was informed by counsel that orders of the kind made in this case are relatively common. The issue has warranted careful consideration, therefore, which explains why the application was not dismissed summarily.

[19] While TWA’s suggested interpretation of s 120 has some attraction at first sight, I am satisfied nevertheless that a principled interpretation of the text, in the context of the legislative purposes of the statutory provisions, permits the combination of orders made in this case to be made at the same time.⁶It is particularly significant, in my view, that both the CYPFs Act and the Care of Children Act require that, in the administration and application of the relevant statutory provisions, the welfare and best interests of a child shall be “the first and paramount consideration”.⁷

[20] The use of the present tense in the conditional part of s 120(1) should be noted: “If a child or young person is subject to an order ... none of the following may be made ....” The use of “is” indicates that the restriction on making Care of Children Act orders does not apply unless a current qualifying CYPFs Act order is

_{already in force. Where a combination or suite of complementary orders
under the}

day-to-day care and guardianship. See also Judith Farbey and RJ Sharpe The Law of Habeas

⁷Children, Young Persons and Their Families Act 1989, s 6; Care of Children Act, s4(1).

CYPFs Act and the Care of Children Act are made simultaneously, in the absence of a pre-existing order under the relevant provisions of the CYPFs Act, the restriction is not engaged.

[21] Considering the purpose of s 120, I note that both the CYPFs Act and the Care of Children Act appear to give the courts concurrent jurisdiction to make a number of equivalent orders relating to the care of children. The CYPFs Act, however, is an enactment which is focused primarily on state intervention through the provision of government and community services and facilities for children who are suffering, or are at risk of suffering, harm, ill-treatment, abuse, neglect or

regularly reviewing decisions relating to the care and protection of vulnerable children.⁹

[22] In contrast, the Care of Children Act operates within private law and largely concerns disputes between guardians, as well as the appointment of guardians and other parenting roles.¹⁰In order to protect the procedures in the CYPF Act, s120 establishes a “pecking order” or hierarchy which gives priority to certain orders under the CYPF Act over corresponding orders under the Care of Children Act.¹¹

But the courts have recognised that, in appropriate cases, orders can be made in tandem under both statutory regimes to enable a flexible, tailored response to the needs of the particular child and their family.

[23] When vulnerable children (of which, given her parents’ circumstances, S was surely an example when she was born) begin a transition to permanent arrangements with foster parents, orders under the Care of Children Act can provide more secure placements that avoid the unsettling prospect that guardianship and care under the CYPFs Act could change at every six or 12 month review.¹²In such circumstances,

_{a court may consider it necessary to continue the Chief
Executive’s involvement}

with a child, for a period, alongside more permanent Care of Children Act orders, and that it is necessary to make a combination of orders under both Acts.¹³

[24] It follows that s 127 of the CYPFs Act, which permits the variation, substitution or discharge of orders under the Act as circumstances change, should be interpreted and applied in the same manner.

[25] In this case, Judge Neal recognised s 120 by discharging all existing CYPFs Act orders before making the combination of orders that included a guardianship order under s 110 of the CYPFs Act as well as the guardianship, day-to-day care and contact orders under the Care of Children Act. Because the current orders were made contemporaneously and in tandem, they were not made in breach of s 120 of the CYFPs Act and are lawful.

[26] I dismiss TWA’s applications for habeas corpus and the declaration he sought.

High Court of New Zealand Decisions

TWA v HC [2016] NZHC 1765 (1 August 2016)

High Court of New Zealand

TWA v HC [2016] NZHC 1765 (1 August 2016)