S v Family Court at Auckland [2018] NZHC 2313 (4 September 2018)

Last Updated: 5 October 2018

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANTS AND THEIR CHILDREN.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001823 [2018] NZHC 2313

BETWEEN	S First Applicant L Second Applicant
AND	FAMILY COURT AT AUCKLAND First Respondent THE CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN Second Respondent

Hearing:	29 August 2018
Appearances:	Applicants in person No appearance for first respondent R W Belcher for second respondent
Judgment:	29 August 2018
Reasons:	4 September 2018

_{REASONS FOR JUDGMENT OF KATZ J}

This judgment was delivered by me on 4 September 2018 at 4.00 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Meredith Connell

_{Copy to: The applicants}

S & L v FAMILY COURT AT AUCKLAND [2018] NZHC 2313 [29 August 2018]

Introduction

[1] Mr S and Ms L have applied for an order for a writ of habeas corpus against the Family Court at Auckland and the Chief Executive of Oranga Tamariki – Ministry for Children (“the Ministry”) in relation to their daughter, Baby J. ¹ Mr S, Ms L and Baby J are all currently living in Guam.

[2] I heard the habeas corpus application on 29 August 2018, by way of teleconference (with Mr S and Ms L participating from Guam). The application was opposed by the Chief Executive on the basis that Baby J is not detained by the respondents. Alternatively, if the Court concluded that Baby J has been detained by the respondents (due to a guardianship order made by the Family Court at Auckland on 2 August 2018) then the Chief Executive argued that any such detention is lawful. Finally, the Chief Executive submitted that a habeas corpus application is not the appropriate procedure to address the issues that arise in this case.

[3] If the respondents have detained Baby J, and such detention is unlawful, then Mr S and Ms L would have been entitled to a writ of habeas corpus, ordering the respondents to release Baby J from detention.² Mr S and Ms L failed to persuade me, however, that the respondents have detained Baby J. I accordingly declined their habeas corpus application at the conclusion of the hearing, with written reasons to follow. Those reasons are set out below.

Background

[4] Mr S and Ms L are currently residing in Guam, a territory of the United States. Because Mr S and Ms L are both New Zealand citizens, Baby J is also entitled to New Zealand citizenship.

[5] Baby J was born on or about 19 July 2018. She is Ms L’s youngest child.

In addition to Baby J, Ms L has five other children. Sadly, however, Ms L has had long-standing mental health issues and has previously been subject to a compulsory

1. The parties have recently changed their names. In prior habeas corpus proceedings (involving the parties’ son) Mr S has been referred to as Mr L, and Ms L has been referred to as Ms T.

² Habeas Corpus Act 2001, s 14(1).

treatment order under the Mental Health (Compulsory Assessment and Treatment) Act

1992.³ Ms L’s four eldest children were removed from her care on the basis that they were in need of care or protection in terms of s 67 of the Oranga Tamariki Act 1989. The Chief Executive was given custody and guardianship of them, pursuant to orders made under ss 101 and 110 of the Oranga Tamariki Act.

[6] Subsequently, Ms L’s fifth child was also removed from her care pursuant to an order made by the Family Court under the Oranga Tamariki Act. Ms L and Mr S, who is the father of Ms L’s two youngest children, applied for a writ of habeas corpus in relation to that child. Their most recent application, refused earlier this year on 10

April 2018 by van Bohemen J, was at least the fifth habeas corpus application brought in relation to Ms L’s children, and was the fourth application brought within a six-month period.⁴

[7] On 12 February 2018, a report of concern was received by the Ministry advising that Ms L was again pregnant. The person who made the notification raised concerns regarding the safety of the unborn baby, given Ms L's poor mental health and the intervention of the Family Court in relation to her other children.

[8] The Ministry is required to conduct an investigation after receiving a report of concern if it appears an investigation is necessary or desirable.⁵ During the course of

its investigation, the Ministry received information that indicated that Ms L had poor mental health, was underweight, and was using drugs or alcohol. Mr S and Ms L filed several proceedings in the High Court to prevent the Ministry from continuing its investigation.

[9] On 15 June 2018, the Ministry received an email from the police advising that Mr S and Ms L had changed their names, obtained passports in their new names, and departed New Zealand for Australia, and then travelled on to Guam.

[10] Prior to Baby J’s birth in Guam on 19 July 2018, the Ministry alerted Guam's

_{Child Protective Services (a division within the Guam Department of Public Health}

³ T v Oranga Tamariki — Ministry for Vulnerable Children [2018] NZHC 630 at [4].

⁴ T v Oranga Tamariki — Ministry for Vulnerable Children, above n 3, at [2] and [39].

⁵ Oranga Tamariki Act 1989, s 17.

and Social Services) that Mr S and Ms L had left New Zealand to prevent their unborn child being taken into care, and that Ms L's other children were in the custody of the Ministry.

[11] On 25 July 2018, the Ministry sent a letter to Child Protective Services outlining Mr S and Ms L’s background and their previous involvement with the Ministry. In addition, Child Protective Services separately received two separate reports from persons in Guam, following Baby J’s birth, raising concerns as to Ms L’s ability to care for her. The first report was received on 23 July 2018 (when Baby J was four days old) and the second four days later, on 27 July 2018. Both reports expressed concern regarding the wellbeing of Baby J and the mental state of

Ms L.

[12] On the day that the second report was received, 27 July 2018, Child Protective Services exerted temporary protective custody over Baby J. Later that day, Child Protective Services secured a retrospective verbal ex parte court order confirming the arrangement. Child Protective Services advised the Superior Court of Guam, Family Division, that it intended “to contact New Zealand court to transfer [Baby J] under the Uniform Custody Jurisdiction and Enforcement Act”. Baby J currently remains in foster care in Guam, in the custody of Child Protective Services.

[13] On 1 August 2018, the New Zealand Police advised the Ministry that the Guam authorities intended to deport Mr S and Ms L back to New Zealand.

[14] The Ministry understands that a further hearing regarding Baby J’s custody arrangements was held in Guam on 13 August 2018 and that no changes were made to the current Baby J’s current custody arrangements. The Ministry further understands that Mr S and Ms L are appealing the custody order made in Guam and have filed a motion for illegal seizure of a child. The next court date in Guam is

13 September 2018.

[15] Meanwhile, on 2 August 2018, the Family Court at Auckland made the following orders under ss 31 and 33 of the Care of Children Act 2004 on the application of the Ministry (“the Family Court Orders”):

(a) An interim order placing Baby J in the guardianship of the Family

Court.

(b) Appointment of the Chief Executive as agent for the Court for the following purposes:

(i) engaging with Child Protective Services; and

If Child Protective Services wishes to release Baby J to care in

New Zealand then:

(ii) engaging New Zealand Government Agencies to support Baby J coming to New Zealand, including obtaining appropriate travel documents;

(iii) bringing Baby J back to New Zealand;

(iv) placing Baby J with caregivers in New Zealand approved by the

Ministry;

(v) endeavouring to enable Mr S and Ms L to have supervised contact with Baby J if they return to New Zealand; and

(vi) endeavouring to ensure that Mr S and Ms L have the contact details for the New Zealand Consulate.

[16] An “on notice” hearing to review the Family Court Orders was scheduled to take place on 29 August 2018, shortly after I heard the habeas corpus application. I am not aware of the outcome of that review.

Habeas Corpus Act 2001

[17] Section 6 of the Habeas Corpus Act provides that an application to challenge the legality of a person's detention may be made by application for a writ of habeas corpus. Under s 3, “detention” includes every form of restraint of liberty of the person.

This includes persons subject to custody orders, although the Court of Appeal observed (somewhat hopefully) in TWA v HC that the specialist jurisdiction and powers of the Family Court mean that resort to habeas corpus in custody cases will be rare in modern times.⁶

[18] An application for a writ of habeas corpus must be given precedence over all matters before the High Court, unless a Judge of that court considers the circumstances require otherwise.⁷ The registrar must allocate a hearing date for the application no later than three working days after the date on which the application was filed.⁸ The present application was filed on 27 August 2018, and it was heard and determined on

29 August 2018.

[19] An application for a writ of habeas corpus is determined under s 14 of the Habeas Corpus Act. That section provides that the defendant must establish that the detention of the detained person is lawful, otherwise the High Court must grant, as a matter of right, a writ of habeas corpus ordering the release of the detained person from detention. (This presupposes, of course, that the defendant is the person or entity who is detaining the subject person). The Judge must enquire into matters of fact and law claimed to justify the detention,⁹ although, as the Court of Appeal observed in Manuel v Superintendent, Hawkes Bay Regional Prison:¹⁰

...Parliament must have contemplated a consideration of underlying questions of fact and law only to the extent to which such inquiry is possible within the procedures provided for in the Act. The inquiry envisaged must have been one that although conducted in circumstances of urgency would allow an appropriately considered judicial examination that would warrant making an unappealable finding against the lawfulness of the detention.

[20] The Court may refuse the application if the habeas corpus procedure is not appropriate for considering the allegations made by the applicant.¹¹ Further, the High Court may exercise the powers conferred on the Family Court by the Care of Children Act if dealing with an application relating to a detained person under the age of

⁶ TWA v HC [2016] NZCA 459, [2017] NZAR 129 at [10].

⁷ Habeas Corpus Act 2001, s 9(1).

⁸ Habeas Corpus Act 2001, s 9(3).

⁹ Habeas Corpus Act 2001, s 14(2).

¹⁰ Manuel v Superintendent, Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [47].

¹¹ Habeas Corpus Act 2001, s 14(1A).

18 years.¹² The High Court may also transfer a habeas corpus application to the Family Court if the substantive issue in the application is the welfare of a person under the age of 16 years.¹³ Any application referred to the Family Court under this section must be dealt with by the Family Court in all respects as if it were an application to that Court under the Care of Children Act.¹⁴

The present application

[21] Although expressed as a habeas corpus application, the present application, in substance, is in the nature of an appeal or judicial review of the Family Court Orders. In particular, it is alleged that the Family Court made those orders without evidence

and jurisdiction, that there were procedural bars, and that the continued detention of baby J is therefore illegal.

[22] Mr S and Ms L say that the Family Court Orders were made on the basis of mere allegations, and that they have never committed any crimes, used illegal drugs, abused or neglected their children. Further, they submit that the Family Court did not have jurisdiction to place Baby J under the guardianship of the Family Court as Baby J was not born in New Zealand, is not a New Zealand citizen, and does not intend to return to New Zealand.

[23] Mr S and Ms L further submit that the application for the Family Court Orders should have been made “on notice”, and that the Ministry social workers who brought the application were not entitled to make an application under s 31 of the Care of Children Act as they did not seek the Court’s leave to bring the application.

Baby J is not detained by the respondents

[24] The primary reason for my decision to decline the habeas corpus application is that I was not satisfied that Baby J has been detained by the respondents.

¹² Habeas Corpus Act 2001, s 13(1).

¹³ Habeas Corpus Act 2001, s 13(2).

¹⁴ Habeas Corpus Act 2001, s 13(3).

[25] Baby J is in the temporary protective custody of Child Protective Services in Guam. While she is undoubtedly detained, she is not detained by either of the named respondents. Rather:

(a) the Family Court at Auckland has made an interim order placing Baby J

in its guardianship;

(b) the Chief Executive has been appointed the agent of the Family Court for certain limited purposes; and

(c) it is the intention of the authorities in both Guam and New Zealand for

Baby J to eventually be transferred into the care of the Ministry.

[26] The Chief Executive acknowledged at the habeas corpus hearing that if Baby J was in New Zealand, the guardianship order would constitute detention for the purposes of the Habeas Corpus Act 2001.¹⁵ Baby J is not, however, in New Zealand. Nor is the guardianship order the operative cause of Baby J's detention in Guam. The Ministry did not direct Child Protective Services to take custody of Baby J and, conversely, cannot direct Child Protective Services to give custody back to Mr S and Ms L. The Superior Court of Guam, Family Division, currently has oversight of Baby J’s custody arrangements.

[27] I am satisfied that the respondents have not detained Baby J. Until such time as the respondents have custody or control over Baby J there is no basis upon which a writ of habeas corpus could be issued. To be effective, any writ of habeas corpus would currently need to be directed to Child Protective Services in Guam, which is not a party to these proceedings. This Court does not have jurisdiction over state agencies in Guam. As the Court of Appeal observed in Jayamohan v Jayamohan:¹⁶

It is one thing to postulate jurisdiction to make an order for habeas corpus on the basis the custodian is in New Zealand. It is quite another to attempt to enforce that order by service of the writ on a respondent who has fled abroad. That involves an attempted command to a person now in another jurisdiction to do an act, not in New Zealand, but in that foreign jurisdiction. That is not

15. Habeas Corpus Act, s 3. The definition of "detention" includes every from of restraint of liberty of the person. See TWA v HC, above n 6, at [10].

¹⁶ Jayamohan v Jayamohan (1997) 15 FRNZ 486 (CA).

permissible. The writ of habeas corpus is a sovereign command. It is drawn as a command by “Elizabeth II ... Queen of New Zealand” to the custodian

to produce the body [person] in New Zealand. Service of such a writ (sovereign command) runs into precisely the sovereignty problems which inhibited service of Writs of Summons under the former Code of Civil Procedure provisions abroad. Such instruments are a potential affront to the

sovereignty of a State in which the purported command is made. Moreover, the attempt is likely to be futile. Subject to vagaries of reciprocal enforcement

of judgments ... and local practices as to enforcement of foreign orders

through local process, a New Zealand writ of habeas corpus may well prove empty. The courts do not hasten to issue empty remedies.

[28] Those observations are equally apt here.

[29] Any challenge to the actions of Child Protective Services must be made in Guam. I understand Mr S and Ms L have made such a challenge. Any order to the Family Court, or to the Chief Executive of Oranga Tamariki (as the agent of the Family Court) under s 14(1) of the Habeas Corpus Act to release Baby J from detention would be ineffective and inoperative. The Chief Executive does not currently have Baby J in her care.

[30] To the extent that Mr S and Ms L wish to challenge the evidential basis for the Family Court Orders, that should be done in the Family Court. As the Court of Appeal observed when considering an appeal against Toogood J’s refusal to order a writ of habeas corpus in relation to Ms L’s fifth child:¹⁷

It is evident from the submissions that [Mr S] and [Ms L] filed for the purposes of the appeal that they wish to challenge the evidential basis for the s 78 order, particularly the conclusions the Judge drew regarding their respective mental health issues and ability to provide a stable environment for their child. The writ of habeas corpus cannot be pleaded for the collateral purpose of making such challenges. These are matters best dealt with in the context of an appeal against the s 67 declaration and, once it is made, the custody order under s 101 that will replace the s 78 order.

[31] The practical reality is that Mr S and Ms L are using the habeas corpus procedure to mount a collateral attack on the Family Court Orders. They are, of course, entitled to challenge those orders through normal legal processes, such as seeking a review in the Family Court or, possibly, by way of appeal or judicial review

17. L v Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki [2017] NZCA 517 at [13].

in this Court. The habeas corpus procedure is not, however, the appropriate process in which to engage with the issues identified by the applicants.

Conclusion

[32] For the reasons outlined above, I dismissed the habeas corpus application.

[33] To preserve the anonymity of the applicants and their children, I make orders:

(a) prohibiting the publication of the names or identifying particulars of Mr S, Ms L and Baby J; and

(b) directing that the file is not to be searched except by leave of a

_Judge.

Katz J