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High Court of New Zealand Decisions |
Last Updated: 28 May 2019
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NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989,
ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE
FAMILY
COURT ACT 1980. FOR FURTHER
INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2017-404-002813
[2018] NZHC 2232 |
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UNDER
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s 341(1) and (2) of the Oranga Tamariki Act 1989
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IN THE MATTER OF
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s 67 Declaration child in need of care and protection
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BETWEEN
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L
First Appellant
T
Second Appellant
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AND
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CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN ORANGA
TAMARIKI
Respondent
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Hearing:
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17 May 2018
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Appearances:
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L (Self-represented) in Person for the Appellants M Bryant and T Burgess
for the Respondent
D T Ransfield for the Child
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Judgment:
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28 August 2018
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JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 28 August 2018 at 3.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
L v CHIEF EXECUTIVE, MINISTRY FOR VULNERABLE CHILDREN ORANGA TAMARIKI [2018] NZHC 2232 [28 August 2018]
Introduction
[1] L is a baby boy who is just over 15 months old. He lives with his mother’s family and has done so since he was one day old.
[2] On 30 October 2017, Judge Manuel declared L to be a child in need of care and protection under s 67 of the Oranga Tamariki Act 1989 (OTA).1 She did so on the basis that L’s wellbeing was likely to be impaired or neglected and that impairment or neglect was likely to be serious and avoidable.2 She also found that L’s parents were willing but unable to care for him.3
[3] L’s parents appeal that decision. They challenge the factual and legal basis for the decision on numerous grounds. Mr L appeared at the hearing and gave concise and cogent submissions in support of the appeal. Ms T did not appear.
[4] The appeal is opposed by the Chief Executive of Oranga Tamariki – Ministry for Children (Chief Executive). It is also opposed by the lawyer appointed for the child. Both the Chief Executive and the lawyer for the child submit that Judge Manuel was right to declare L a child in need of care and protection.
Key events
[5] There has already been substantial litigation about L, despite his young age. This includes several habeas corpus applications in this Court,4 the first of which was appealed and subsequently upheld.5 The background to the litigation is summarised in those judgments and in the judgment under appeal. What follows is drawn substantially from those judgments.
[6] L’s mother, Ms T, has been in the care of mental health services since she was 18 years old. She has been diagnosed with paranoid schizophrenia with residual
1 Ministry of Vulnerable Children v T [2017] NZFC 8295.
2 Oranga Tamariki Act 1989, s 14(1)(b).
3 Oranga Tamariki Act, s 14(1)(f).
4 L v Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki [2017] NZHC 2322;
L v Chief Executive of the Ministry for Vulnerable Children,
Oranga Tamariki [2017] NZHC 3008.
5 L v Chief Executive of
the Ministry for Vulnerable Children, Oranga Tamariki [2017] NZCA 517.
psychotic symptoms. She was discharged from a compulsory treatment order6 on 6 July 2017 and is continuing voluntary treatment which consists of fortnightly injections of an anti-psychotic medication. There is evidence that illicit drug use and alcohol habits have exacerbated Ms T’s condition in the past.
[7] L is Ms T’s fifth child. Her previous four children were removed from her on the grounds that they were in need of care and protection. Three of those children have been diagnosed with foetal alcohol syndrome.
[8] Mr L is 35 years old and migrated to New Zealand as a refugee. L is his only child. He has previously received treatment for mental health issues, and there are questions about his past use of illicit drugs.
[9] Before L was born, a social worker who had previously worked with Ms T and her other children made an application for a declaration under s 67 of the OTA, and a without notice application for an interim custody order under s 78(1) of the OTA. The interim custody order was made on 13 April 2017.7 Two family group conferences were convened to consider the care and protection concerns but they did not result in any agreement.
[10] L was born in May 2017 and placed in the custody of Ms T’s relatives. L’s parents successfully challenged the legal basis for that custodial arrangement in an application for a writ of habeas corpus.8 Despite the basis for L’s “detention” being found unlawful, Palmer J continued the current custody arrangements under the High Court’s jurisdiction to protect those unable to care for themselves (the parens patriae jurisdiction). The application for a writ of habeas corpus was transferred to the Family Court for determination.
[11] Since then, the Chief Executive has applied for orders under s 83 of the OTA. That section allows orders relating to the welfare of L to be made where a declaration has been made under s 67. In addition, the Chief Executive has filed a social worker’s
6 Under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
8 L v Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki [2017] NZHC 3008.
plan recommending that the Court grant a custody order and an additional guardianship order in favour of L’s current caregiver. Those applications, together with the habeas corpus application, have been consolidated and allocated a half day hearing which will follow the determination of this appeal.
[12] Mr L opposes the additional orders sought by the Chief Executive. He has also applied for an order for increased access to L under s 121, a services order under s 86, and a support order under s 91 of the OTA. Mr L also advises that he has commenced proceedings against the Chief Executive for the unlawful detention of his son in the period between 30 October 2017 and the date that Palmer J directed that he be held pursuant to the special jurisdiction of this Court.
Legislative framework
[13] Section 67 of the OTA sets out grounds for a declaration that a child or young person is in need of care or protection. It provides:
(1) A court may, on application, where it is satisfied on any of the grounds specified in section 14(1) 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.
(2) However, on an application under section 18A(4)(a) or 18D in relation to a person to whom section 18A applies, if the court is satisfied that the subsequent child is in need of care or protection on the ground in section 14(1)(ba), it must make the declaration unless it is satisfied that the parent has demonstrated that he or she meets the requirements of section 18A(3).
[14] The grounds in s 14(1) of the Act relevant to this appeal are as follows:
(1) 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—
...
(b) the child's or young person's development or physical or mental or emotional well-being 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
(f) the parents or guardians or other persons having the care of the child or young person are unwilling or unable to care for the child or young person; or
...
[15] The Court must not make a declaration unless a family group conference has been held.9 It must also be satisfied that it is not practicable or appropriate to provide care or protection for the child by “any other means”.10
[16] Once the s 14 grounds are met, the Court has a discretion whether to make the declaration sought. In exercising that discretion, the Court will have regard to s 6 of the OTA which provides that the welfare and interests of the child shall be the “first and paramount consideration, having regard to the principles set out in sections 5 and 13”. Those principles include the following:
(a) the child must be protected from harm and have their rights upheld;11
(b) wherever possible, the relationship between a child and their family and whānau should be maintained and strengthened;12
(c) consideration must always be given to how a decision affecting a child will affect the welfare of that child and the stability of that child’s family and whānau;13 and
(d) decisions affecting a child should be made by adopting a holistic approach that takes into consideration, without limitation, the child’s age, identity, cultural connections, education, and health.14
9 Oranga Tamariki Act, s 72.
10 Oranga Tamariki Act, s 73.
11 Section 13(2).
12 Section 5(b).
13 Section 5(c).
14 Section 5(g).
[17] Once a s 67 declaration is made, it opens the door for other orders to be made in respect of the child. These include an order that the Chief Executive, or any other person, provide services and assistance to a parent or guardian or other person having the care of the child,15 a support order for that child,16 and a custody order.17 The Court may also make a guardianship order under s 110 of the OTA. Before making any of those orders, the Court must first obtain a plan for the child under ss 129 and 130 of the OTA.
District Court decision
[18] The hearing before Judge Manuel was two and a half days long. The Judge heard evidence from Ms Robertson (the social worker who made the application), Mr White (Mr L’s former mental health social worker), both appellants and Dr Simon Bainbridge who was a psychiatrist engaged by the appellants. Legal submissions were received from counsel for the Chief Executive, counsel for the appellants, and lawyer for the child.
[19] The Judge reviewed the relevant legal principles and summarised the positions of all the parties, including that of the lawyer for the child. She then reviewed the evidence and made a number of factual findings. Those factual findings may be summarised as follows:
(a) As to the appellants’ mental health, the Judge considered that the evidence of the psychiatrist called on behalf of the appellants was limited because it was based on self-reported information and represented only a snapshot in time.18 Accordingly, the Judge placed very little weight on those opinions. The Judge raised concerns about Ms T’s longstanding mental health issues as to whether or not she would be able to identify genuine health concerns for L as they arose. The Judge identified that Mr L had had two identified mental health episodes. She expressed reservations about his assertion that he did not
15 Oranga Tamariki Act, s 86(1)(a).
16 Oranga Tamariki Act, s 91.
17 Oranga Tamariki Act, s 101.
18 At [53].
have a mental illness which requires ongoing assistance or medication, although she acknowledged that he had not been formally diagnosed with an illness falling within the relevant definitions. The Judge was not persuaded that either parent could provide adequate support for each other as parents due to relative instability in their relationship and the prospect of one or other of them becoming unwell, placing an additional burden on the family in terms of the care of a baby.
(b) The Judge accepted, on the balance of probabilities, that both parents were drug free immediately prior to drug and alcohol samples being collected. The Judge referred to Ms T’s mental health notes which suggested that her drug and alcohol use was more recent than she alleged and she weighed Ms T’s claims of current sobriety against a history of drug and alcohol abuse which had grave consequences for her older children. She noted that Mr L’s own abuse of the drug modafinil was comparatively recent and resulted in serious consequences.19
(c) The Judge referred to the undisputed evidence that the parties had moved several times in the six months leading up to the hearing and did not have stable accommodation with suitable facilities for raising a baby.20
(d) The Judge found that both parents had demonstrated a lack of capacity or insight which also raised concerns about their ability to plan appropriately or identify risks for their baby.21
(e) Finally, the Judge noted there was very little evidence of family support for either Ms T or Mr L and that “Mr [L’s] antipathy to authority does not augur well for the future”.22
19 At [61].
20 At [63].
21 At [64] and [65].
22 At [66] and [67].
[20] The totality of these concerns led the Judge to the conclusion that a declaration would have to be made under s 67. She noted that the assessment was a “predictive one and it is premised on ensuring the safety of a very young and vulnerable child”.23 Her conclusions were as follows:
[69] [L] is obviously far too young to express his views and wishes but I have taken into account the submissions made on his behalf by his lawyer. Two family group conferences have been held. I am satisfied that [L’s] needs cannot be met by other means; no other viable proposal has been presented. Under s 14(1)(b) OTA, his development or physical or mental or emotional wellbeing is likely to be impaired or neglected in a way which is likely to be serious and would otherwise be avoidable if he is returned to his parents’ care. Under s 14(1)(f) OTA, [L’s] parents are currently unable to care for him in a manner which will meet his welfare and interests, despite being willing to care for him.
[70] No declaration is made under s 14(1)(a) OTA because I am not satisfied on the balance of probabilities that if [L] was returned to his parents’ care he is likely to be harmed (whether physically or emotionally or sexually), ill-treated, abused or seriously deprived. The evidence does not go that far.
[21] Accordingly, a declaration was made under s 67 of the OTA relying on ss 14(1)(b) and 14(1)(f) of the OTA.
Approach on appeal
[22] There is no dispute that the appellant has the right to appeal a decision to make a s 67 declaration. As Fogarty J has previously observed the declaration has a “finality in its own right”.24 Accordingly, the appeal proceeds under s 341 of the OTA.
[23] The s 67 decision comprises factual and evaluative assessments which are subject to the general appellate standard of review. The appellants must therefore satisfy me that I should take a different approach from Judge Manuel. However, I must form my own view and will not defer to the lower Court’s decision except for respecting the advantages that the Court has in seeing and hearing the witnesses.
23 At [68].
24 Y v Chief Executive of the Ministry of Social Development [2012] NZHC 2774 at [30]; see also WAH v Chief Executive of the Department of Child Youth and Family Services HC Auckland CIV- 2006-404-5311, 12 February 2007 at [15].
[24] The s 67 decision also comprises a residual discretion. In relation to that aspect of the determination, the appellants must show that the Judge acted on an incorrect principle, failed to consider a relevant matter, considered an irrelevancy or was plainly wrong.
Was there jurisdiction to make a s 67 declaration?
[25] Mr L submits that Judge Manuel did not have jurisdiction to make the s 67 declaration. He also challenges the s 78 interim order on the same jurisdictional grounds. Mr L submits that the jurisdictional problems arise because the s 67 declaration and the initial s 78 order were based on s 14(1)(ba) of the OTA. Section 14(1)(ba) defines a child or young person as being in need of care and protection within the meaning of the OTA if the child is a subsequent child of a parent to whom s 18A applies, and the parent has not demonstrated that certain requirements are satisfied.
[26] Mr L says that where an application is based on the subsequent child provisions in s 14(1)(ba), it may only proceed on that ground and no other. He submits that the fact that other s 14(1) grounds were claimed in support of the s 67 application was an abuse of process. That is in part because the evidence is based on s 14(1)(ba) only.
[27] The original application for a s 67 declaration relied on s 14(1)(a),(b), (ba) and
(f) as providing the necessary grounds. However, as Mr L submits, the affidavit of the social worker sworn in support of the application was primarily directed at the s 14(1)(ba) grounds.
[28] Although the grounds are expressed as stand-alone alternatives, that does not mean that only one ground may be specified in the application. In reality, the facts may give rise to one or more of the grounds specified in s 14(1). Section 67(1) refers to “any” of the grounds set out in s 14(1) and allows the Court to consider multiple grounds in support of the application.
[29] The fact that s 67(2) makes a declaration mandatory if the Court is satisfied that the grounds in s 14(1)(ba) apply does not mean that s 14(1)(ba) is exclusive. There was no abuse of process in applying under multiple grounds, including s 14(1)(ba).
[30] The Chief Executive subsequently acknowledged that the “subsequent child” provisions of the OTA did not apply in this case and the application was not pursued on that basis. That is important because it means that Judge Manuel’s decision did not consider this ground of application, and it was not one of the grounds for the declaration. Accordingly, it did not affect the jurisdiction of the Court.
[31] Insofar as the challenge is made to the s 78 interim order, it is important to note that this appeal only concerns the s 67 declaration. The legality of the s 78 decision was challenged by Mr L and Ms T by way of a habeas corpus application. The Court of Appeal dismissed an appeal from Toogood J’s refusal to grant the writ. The Court of Appeal explained to Mr L and Ms T that it was open to them to appeal both the s 67 declaration (which is the current appeal), and “any custody order made in substitution of the s 78 order”.25 That anticipated custody order has yet to be made, but the rights of L’s parents to challenge that custody order remain intact.
[32] I am satisfied that there was, and is, jurisdiction to make the s 67 declaration. The next question is whether any of the grounds specified in s 14(1) can be established.
Were there grounds under s 14(1) to make the declaration?
[33] Mr L challenges the evidential foundation for the Judge’s finding that there were grounds under s 14(1) to make the declaration. Those challenges are to particular aspects of the evidence, but they need to be considered in light of all the evidence called at trial. Accordingly, I have reviewed the evidence relied upon by the Judge in making her findings, and address Mr L’s challenges in that context.
[34] It is important to bear in mind the relevant framework for assessing this evidence. The Judge did not find any evidence of a risk of physical harm or abuse under s 14(1)(a) of the Act. That finding was correct in my view.
[35] Nor did the Judge rely on the subsequent child provisions in s 14(1)(ba). This focus in the initial social worker’s report filed in support of the application has caused considerable confusion. But I am satisfied that the Judge based her assessment on the
evidence called at trial, and she did not base her decision on the subsequent child provisions at all.
[36] The Judge held the grounds in s 14(1)(b) and (f) were made out. For ease of reference, I set out those subsections again:
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—
...
(b) the child's or young person's development or physical or mental or emotional well-being 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
(f) the parents or guardians or other persons having the care of the child or young person are unwilling or unable to care for the child or young person; or
...
[37] Mr L submits that it is unusual to make a s 67 declaration in circumstances where there is no evidence of past harm or neglect to L, and so no evidence of a future risk of physical harm.
[38] But the grounds set out in s 14(1) are broader than that. Section 14(1)(b) covers situations where there is impairment or neglect which is serious and avoidable, and situations where there is likely to be impairment and neglect which is likely to be serious and avoidable. The assessment of a future risk (that is, the likelihood of this happening) does not depend on proof that it happened in the past, or is happening at present. If the evidence suggests that serious and avoidable impairment and neglect is likely, then that is sufficient to find this ground proved.
[39] Furthermore, s 14(1)(f) requires an assessment of the willingness or ability of parents or caregivers to care for their child. The evidence suggests that Mr L in particular was, and still is, extremely willing to care for L. The Judge did not find otherwise. But the focus in this particular case was on the ability of Mr L and Ms T to care for L in the circumstances.
[40] The Judge considered that the mental health issues suffered by both appellants established a real concern about the appellants’ ability to safely care for L. The primary evidence at trial directed towards this issue comprised the following:
(a) Evidence of Mr Roger White, a social worker appointed to monitor Mr L’s mental health, medications and ongoing recovery.
(b) Clinical notes of the Waitemata District Health Board Adult Mental Health Team relating to both appellants (mental health records).
(c) Evidence of Dr Bainbridge who gave expert evidence on behalf of the appellants.
[41] Mr L submits that the Judge put undue weight on the mental health records and preferred those records to the evidence of Dr Bainbridge who gave evidence on behalf of both appellants. He says the mental health records contained errors and should not have been relied on by the Judge.
[42] The mental health records were produced as exhibits A to D through Mr White. The notes of evidence record counsel for the appellants’ objection at the time, but the basis for the objection, and the Judge’s subsequent ruling allowing them to be produced, is not recorded in the notes of evidence. Given the reliance placed on the appellants’ mental health in making the application, it may have been preferable for the Chief Executive to adduce direct evidence from those qualified to give that evidence.
[43] However, I am not persuaded that reliance on the mental health records in the circumstances led the Judge into error. Mr L submits that they contain errors in relation to the dates he was admitted and/or discharged. But any such errors were not material in the circumstances and Mr L has not identified any other errors of substance. In the absence of evidence to the contrary, the mental health records provided an accurate picture of the nature of the mental health conditions suffered by both appellants. That was relevant evidence to be weighed by the Judge in considering the
likelihood of impairment or neglect, and the ability of the appellants to care for their child.
[44] In addition, the Judge had the benefit of the witnesses at trial who gave evidence directed towards this issue. Mr Roger White, the social worker appointed to monitor Mr L’s mental health following his discharge from hospital, gave evidence about Mr L’s mental health. And Dr Simon Bainbridge, a psychiatrist, gave evidence on behalf of the appellants.
[45] Mr L submitted that the Judge should have placed greater weight on Dr Bainbridge’s evidence, rather than the mental health records. Dr Bainbridge had filed reports on both Mr L and Ms T which were attached to their affidavits in opposition to the application. Based on his interview with Ms T, Dr Bainbridge concluded that her diagnosis and clinical presentation did not give rise to any immediate risks to her child. Similarly, in relation to Mr L, Dr Bainbridge stated that he was unable to elicit any risks posed by Mr L either to himself or others; nor did he elicit any signs or symptoms of mental illness.
[46] Dr Bainbridge confirmed under cross-examination that his reports were based on one-hour interviews with both Ms T and Mr L. He confirmed that he relied on their self-reports in forming his opinions, and he had not considered the mental health records prior to coming to court. In answering questions from the Judge, Dr Bainbridge confirmed that reliance on the self-report, without reference to documentary records, was a limitation of his reports. He characterised his reports as a “snapshot in time”. Dr Bainbridge also noted that he had not been given a letter of direction for his report regarding Mr L’s mental health, and therefore admitted he had taken a “scattergun approach”.
[47] In those circumstances, I am satisfied that the Judge was entitled to place little weight on Dr Bainbridge’s reports, and his evidence in Court. The mental health records and the evidence of Mr White provided a better evidential foundation from which to assess the impact of the appellants’ mental health conditions on the risks posed to L, and their ability to care for him.
[48] Mr L also submits that the evidence of Ms Robertson was incorrect as it referred to him having a diagnosis of schizophrenia. Ms Robertson was cross- examined about the reference to schizophrenia. She said she obtained that information from the other mental health social worker who had been assigned to Mr L. Mr L’s mental health records note the consultant’s impression that the symptoms Mr L was presenting with on 25 January 2017 related to “modafinil abuse/Schizophreniform disorder”. It appears that the reference to schizophrenia may have arisen out of a misinterpretation of these records.
[49] But that error did not impact on the Judge’s decision. The Judge did not refer to Mr L having been diagnosed with schizophrenia in her judgment. She limited her findings in relation to Mr L’s mental health to his recent episodes, which appeared to have been caused (at least on Mr L’s and Dr Bainbridge’s evidence) by the misuse of modafinil. This error in the evidence did not have any substantive impact on the Judge’s reasoning.
[50] Finally, in this context, Mr L submits that the appellants were being discriminated against for their mental health issues. He submitted that such discrimination was in breach of the New Zealand Bill of Rights Act 1990 (NZBORA). I am satisfied from reading the judgment that Mr L and Ms T’s mental health issues were only taken into account by the Judge in assessing their ability to care for L. That does not amount to discrimination under the NZBORA.
[51] The evidence before the Judge about the appellants’ mental health raised some concerns about the ability of both parents to provide the necessary care for L. Although Ms T had been discharged from a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992, there were recent incidents which indicated that her illness may have affected her ability to care for baby
L. Those incidents included presentation at hospital whilst pregnant with L complaining of a pain she felt as a result of insects, spiders and fish in her vagina. The evidence suggested that Ms T had held this belief for a long period of time.
[52] Similarly, Mr L had been diagnosed with post-traumatic stress disorder in 2010, and in December 2016 he was admitted to hospital for compulsory treatment for
six weeks following a psychotic episode. After his discharge from hospital he continued to receive treatment and was monitored by Mr White, a mental health social worker.
[53] I consider the Judge was right to weigh the impact of these mental health conditions on the appellants’ ability to provide the necessary care and support for L. That evidence needed to be considered in light of all the evidence adduced at trial. Considered in that context, it contributed to concerns about the ability of both parents to take care of their son, and ensure that his wellbeing was not impaired or neglected.
Risk of drug and alcohol abuse
[54] The Judge also considered evidence relating to the risk of drug and alcohol abuse by the appellants.
[55] Both appellants provided test results to the Family Court as evidence that they were now both drug free. The Judge accepted on the balance of probabilities that both parents were drug free immediately before the samples were collected.26
[56] Despite these tests, there was other evidence before the Court which suggested that there was a risk of drug and alcohol abuse in the future. Although Ms T gave evidence that she had stopped using “harsh drugs” in 2007, and marijuana in 2013, an entry in the mental health records for 21 March 2016 recorded Ms T’s admission of the use of cannabis at that time. The Judge was correct to treat Ms T’s denials that she was continuing to use cannabis at this time with some scepticism in the circumstances.
[57] In addition, Mr L’s admission to hospital in December 2016 was a result of his abuse of the prescription drug modafinil. Mr L himself contended that the psychotic episode which had led to his admission to hospital was a result of doubling the recommended dosage of this prescribed drug. The Judge recorded the submission made at the hearing that Mr L was characterised as the more abstentious partner and was able to support Ms T to remain sober.27 However, the Judge considered that
26 At [59].
27 At [62].
Mr T’s own recent history suggested that he was not necessarily suited to that role. I agree.
[58] In light of that evidence, the Judge was correct to take into account Ms T and Mr L’s past drug and alcohol abuse when considering the risk that abuse of that nature in the future would impact on their ability to care for L. There was no error in the Judge’s approach to the evidence.
[59] There was undisputed evidence before the Family Court that the appellants had moved several times in the six months leading up to the hearing. Mr White also gave evidence of having visited Mr L at two of these addresses – one in West Auckland, and the other at a caravan park where he and Ms T were living. In his view, the West Auckland address was simply a temporary shared living arrangement and the caravan park was not a suitable place for a child.
[60] On appeal, Mr L provided me with a page from a residential tenancy agreement for a Housing New Zealand Corporation house in Manukau. The appellants were both named as tenants in the agreement. The tenancy started on 24 January 2018, and thus post-dated the Judge’s decision.
[61] Securing a place to live is a positive factor weighing in favour of the appellants’ ability to provide a stable environment for their child. But, weighed against the past evidence of transience, securing this tenancy does not necessarily mitigate this risk. In any event, the evidence of transience was just one factor to be weighed in light of the evidence as a whole. Considered in the broader context, I am not persuaded that the assessment of risk is substantially altered in all the circumstances.
[62] In assessing the s 14(1) grounds, the Judge also took into account evidence which she considered indicated that the appellants might not have the necessary capacity or insight to plan appropriately or identify risks in their care for L.
[63] The core evidence relied on in this respect concerned Ms T, rather than Mr L. Ms T had expressed a view that, if necessary, she would “get a job which is pretty easy” despite having been out of the workforce for many years. Both she and Mr L had expressed a wish to have Ms T’s older children returned to her care despite having had only sporadic contact with them over the course of their lives. Further, in her 38th week of pregnancy, Ms T had flown to Australia without telling the Chief Executive, and despite the s 78 interim order being in place. Although these incidents reflected on Ms T’s capabilities, the fact that Mr L had not expressed any misgivings about these actions, and in some respects supported Ms T’s beliefs, was concerning for the Judge.
[64] Assessed in isolation, evidence of this nature would not be enough to justify a s 67 declaration. But the evidence had to be considered in totality. In that context, it added to the weight of evidence suggesting a likelihood of impairment and neglect, and an inability to provide the necessary care for L.
Lack of family and community support
[65] A further factor contributing to the Judge’s findings that the grounds in s 14(1) had been made out was the lack of family and community support to assist the appellants in caring for L. There were two aspects to the evidence directed towards this issue: the availability of the necessary support, and the appellants’ willingness to engage with it.
[66] As to the former issue, it was accepted that Mr L did not have any family support. He does not have any relationship with members of his biological family, who are all overseas. Ms T had filed evidence suggesting a number of family members which could offer the required support. However, the Chief Executive called evidence which suggested that none of these family members were suitable, and were unlikely to provide the required level of support.
[67] Mr L gave evidence at trial that there was sufficient support available in the community, such as from Work and Income New Zealand, Plunket, the Children’s Commissioner and organisations such as Family Support and Barnardos to assist both appellants in caring for L.
[68] Despite this community support being available, the Judge expressed concern about the willingness of the appellants to engage with it. Both appellants expressed the view that they did not need any support. Under cross-examination, Ms T confirmed it was her view that the appellants should be left to raise L on their own. Some of Mr L’s answers in cross-examination suggested an unwillingness to actively engage with various community organisations, although he considered that these organisations would take steps if the failure to engage gave rise to concerns.
[69] As with the evidence regarding the appellants’ lack of insight, I do not consider this evidence on its own would have been sufficient to find the s 14(1) grounds met. But given the other identified risks, the availability of support and the appellants’ willingness to engage with it, was evidence to be weighed in the mix. There was no error in the approach the Judge took to this evidence.
Other challenges to the evidence
[70] Mr L raised a number of issues with the evidence called at trial. In particular, he submitted that the social workers misled the Family Court by producing “false, misleading and hearsay evidence” at trial. The issues raised by Mr L may be briefly addressed as follows.
[71] First, Mr L submits that erroneous information suggesting he had prior convictions was provided to the social worker by police. I can find no record of that occurring. Ms Robertson recorded in her original affidavit that Mr L had no prior convictions. Dr Bainbridge gave evidence regarding statements that Mr L himself had made to him about police complaints. The Judge questioned Mr L about this at trial. Mr L was able to explain the context of those complaints to the Judge. In any event, this was not a factor relied upon by the Judge in reaching her decision. There was no reference to any criminal convictions in the judgment at all.
[72] Second, Mr L raised issues about the affirmation of Ms Robertson in support of the application for the s 67 order. Mr L submitted that this affirmation had not been made before an enrolled barrister and solicitor of the High Court of New Zealand. However, that discrepancy is explained by the subsequent retirement of the solicitor after he administered the affirmation to Ms Robertson. Mr L also pointed out a
discrepancy between the date of affirmation (21 March 2017) and the date of the s 18A assessment (30 March 2017) annexed to that affirmation. That discrepancy was not explained. Nevertheless, the Judge based her decision on the evidence that was given at trial, rather than this affidavit. I am not persuaded that this discrepancy in the dates would have changed the substantive analysis of that evidence.
[73] Third, Mr L said a social work report prepared under s 186 of the OTA erroneously referred to Ms T working as a prostitute in the past and therefore recommended paternity testing. However, a minute by Judge Druce dated 4 May 2017 records that the appellants both consented to paternity testing. In any event, Judge Manuel did not place any weight on this point. She simply recorded that paternity testing was carried out in July 2017 and it established that Mr L was the father.28 There is no reference to Ms T working as a prostitute.
[74] Fourth, Mr L suggested that the respondent’s evidence wrongly referred to mental health concerns despite the fact that both he and Ms T were no longer subject to the Mental Health (Compulsory Assessment and Treatment) Act. However, under cross-examination Ms Robertson confirmed that she had recently been made aware Ms T was released from compulsory treatment approximately one month before the hearing. Judge Manuel correctly recorded the position regarding the appellants’ mental health status in her judgment.
Conclusions on s 14(1) grounds
[75] Overall, I am not persuaded that the Judge’s approach to the evidence was in error. She carefully weighed and considered the evidence of risk to L, and the ability and capacity of the appellants to care for him. The totality of that evidence pointed to the likelihood that L’s development and well-being was likely to be impaired or neglected and that impairment or neglect was likely to be serious and avoidable. Further, whilst both appellants were willing to care for L, they were unable to do so. My own review of the evidence supports that conclusion. There was sufficient evidence to find the grounds in s 14(1)(b) and (f) established.
28 At [17].
Were there other means to provide care or protection?
[76] Before making a declaration under s 67, a court must be satisfied that it is not practicable or appropriate to provide care or protection for the child by “any other means”.
[77] Mr L argued that the Judge did not have jurisdiction to make the orders, because there were other means available to meet L’s needs. He specifically referred to the orders in ss 39, 86, and 91 of the OTA. Section 39 relates to an interim placement of custody for a short period of time (five days). That is not an available means or alternative to the making of a declaration under s 67. A services order under s 86, and a support order under s 91 may only be made once the court has made a s 67 declaration. Those orders are not alternatives either.
[78] The Judge recorded that there were no other viable proposals presented for L’s care and protection. There was no error in her approach.
Other grounds of appeal
[79] Mr L submits that L was uplifted in breach of the United Nations Convention on the Rights of the Child.29
[80] The Judge specifically considered arts 3(1), 7(1), 8(1), 9(1), 9(3) and 18(2) of the Convention in making her decision. She recorded in her judgment that the principles under ss 5 and 13 of the OTA are consistent with those protections.30 To the extent that this decision is directed at the uplifting of L, then it concerns the interim orders that were made under s 78, which is not a matter within the scope of this appeal. As to this current appeal, I am satisfied that the Judge’s decision under s 67 was in accordance with the Convention.
[81] Mr L also submits that Judge Manuel was biased. He refers to a minute of Judge Fleming in which the Judge had apparently given a clear indication to counsel
30 At [27].
that opposition to the making of a declaration was unlikely to succeed. Mr L submits that this was likely to have tainted Judge Manuel’s decision as that minute would have been available to her at the hearing.
[82] I do not consider there is any basis to say that Judge Manuel had either pre- determined or was unduly influenced by Judge Fleming’s minute in an earlier telephone discussion. It is evident from Judge Manuel’s judgment that her decision was based solely on the evidence.
Result
[83] In summary, I am satisfied that:
(a) There was jurisdiction to make the s 67 declaration in this case.
(b) The evidence was sufficient to find the grounds in s 14(1)(b) and (f) established.
(c) There were no other means to provide care or protection for L.
(d) The grant of a declaration is consistent with the principles of the OTA.
(e) There is no other reason to allow the appeal.
[84] The declaration was accordingly properly made under s 67 of the OTA.
[85] The appeal is dismissed.
Edwards J
Counsel: D T Ransfield, Auckland
Solicitors: Crown Law, Wellington
Copies To: L, Auckland
T,
Auckland
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/2232.html