Henderson v Chief Executive of Oranga Tamariki [2023] NZHC 2766 (3 October 2023)

Last Updated: 20 October 2023

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 https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-485-595 [2023] NZHC 2766

UNDER THE	High Court Rules 2016, r 19.2(h); Habeas Corpus Act 2001; and New Zealand Bill of Rights Act 1990
IN THE MATTER OF	An application for a writ of habeas corpus
BETWEEN	MS HENDERSON First Applicant
AND	IAN ADAMSON Second Applicant
AND	THE CHIEF EXECUTIVE OF ORANGA TAMARIKI Respondent

Hearing:	2 October 2023
Appearances:	First and Second Applicants in person K E E Whiting for Respondent
Judgment:	3 October 2023

JUDGMENT OF GRICE J

HENDERSON & ANOR v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI [2023] NZHC 2766 [3

October 2023]

Introduction

• [1] This is application for the writ of habeas corpus in respect of Ryan, Ms Henderson’s 13-year-old son who is in the care of Oranga Tamariki.¹

Facts

• [2] The first and second applicants submit that Ryan is being illegally detained in Oranga Tamariki’s care.

• [3] Following a defended hearing, on 17 March 2023, the Family Court made orders under ss 101 and 110(2)(b) of the Oranga Tamariki Act 1989 giving the Chief Executive of Oranga Tamariki (the Chief Executive) custody of Ryan.² Ms Henderson has appealed that custody decision to the High Court.³ Her appeal was heard in September 2023 and the decision is awaited.

• [4] Ms Henderson has also made a number of applications to the Family Court concerning recent events and is seeking a discharge of the custody and guardianship orders presently in place in favour of the Chief Executive. The respondent notes that a without notice application dated 16 May 2023 was dismissed on 17 May 2023, as Ms Henderson had been unable to demonstrate a material change in circumstances. A further without notice application dated 18 May 2023 sought leave to vary the custody order. That was again dismissed by the Family Court on the same day.

• [5] On 31 July 2023 a further without notice application was made by Ms Henderson to “discharge all current orders held in favour of the Chief Executive”. At a judicial conference on 18 August 2023 Judge Moss in the Family Court determined the application was inadequate on the basis that no application for leave to apply was filed. Judge Moss further indicated that the proceedings filed by Ms Henderson were contrary to Ryan’s best interests and leave would not have been granted.

¹ The applicants’ names and the child’s name have been anonymised in this judgment.

² Chief Executive of Oranga Tamariki v [Henderson] [2023] NZFC 2167 at [105].

³ CIV-2023-454-41.

• [6] After a number of incidents involving Ryan running away from the Oranga Tamariki-arranged care to Ms Henderson’s home, Oranga Tamariki has obtained a restraining order in the Family Court preventing Ms Henderson having contact with Ryan until a family group conference is convened to formalise and approve a new plan under s 128 of the Oranga Tamariki Act.⁴

Application for habeas corpus

• [7] Ms Henderson has filed an originating application for the writ of habeas corpus, in reliance on s 13 of the Habeas Corpus Act 2001; Barnardo v Ford, Gossage’s Case;⁵ and ss 5, 18 and 22 of the New Zealand Bill of Rights Act 1990.

• [8] Ms Henderson says that Oranga Tamariki acknowledges the plan for Ryan’s care under s 128 of the Oranga Tamariki Act has broken down. The applicants say the Court must now approve a new plan as being in the best interests of the child before any new plan has lawful effect.

• [9] The applicants say that because the previous plan pursuant to s 128 has broken down, the Court has no jurisdiction to make or continue any orders regarding Ryan’s care and access arrangements in favour of Oranga Tamariki. Therefore, he is being illegally detained.

Law and application

• [10] As the respondent submitted, custody orders are amenable to a writ of habeas corpus but only in rare circumstances.⁶ While the mere existence of a Family Court order is not a conclusive answer to an application for habeas corpus, provided the validity of the order can be established, any challenges are more appropriately pursued by way of review or judicial review.⁷

⁴ FAM-2021-054-405.

⁵ Barnardo v Ford, Gossage’s Case [1892] UKLawRpAC 34; [1892] AC 326 (HL).

6. H v Family Court at Tauranga [2018] NZHC 3459 at [5]; Adamson v Chief Executive of Oranga Tamariki [2022] NZCA 505 at [28]; and DE v Chief Executive of the Ministry of Social Development [2007] NZCA 453, [2008] NZFLR 85.

⁷ D (CA504/2020) v Adams [2020] NZCA 454 at [9].

• [11] It appears the orders in force are lawful and validly made, although subject to an appeal. In addition, current matters are before the Family Court. A Family Court judicial conference has been scheduled for 11 October 2023.

• [12] The breakdown of the implementation of a plan which has been approved under s 128 does not mean that the custody order in favour of Oranga Tamariki is no longer lawful. Section 104 of the Oranga Tamariki Act provides that if the Chief Executive has a custody order he is entitled to custody as if he had a parenting order. Section 105 provides for residential placement by Oranga Tamariki.

• [13] In the circumstances, it appears a new plan should be developed and put before the Family Court for approval in the usual way. I am advised a family group conference is to be convened in the future for that purpose.

• [14] Mr Adamson pointed out that under s 13 of the Habeas Corpus Act, if the young person⁸ is detained the High Court could “on its own initiative or at the request of a party to the proceeding, transfer the application to the Family Court.”⁹ Such a referral 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 2004. Mr Adamson agreed that it was inappropriate for this Court to deal with this matter in a summary manner but pointed out that the Family Court could employ its processes to deal with the habeas corpus application under the Care of Children Act.

• [15] I have considered that option, which is opposed by the respondent. In my view, because the matters are all currently before the Family Court it would merely complicate matters to refer the habeas corpus application back to it. A copy of this judgment can be made available to the Family Court because the matters raised in this application are the same or similar to those that will be raised or have already been put before the Family Court. A further application transferred to the Family Court will not assist it in dealing with the matter. The best interests of the child must be borne in

⁸ Under 16 years of age.

⁹ Habeas Corpus Act 2001, s 13(2).

mind¹⁰ and to further complicate matters by referring this to the Family Court will not be in the best interests of the child.

Outcome

• [16] Accordingly, I dismiss the application for habeas corpus. The orders under ss 101 and 110(2)(b) of the Oranga Tamariki Act are lawfully in place. Ryan is not unlawfully detained.

• [17] This decision can be reported, consistent with ss 11B–11D of the Family Court Act 1980 and s 437A of the Oranga Tamariki Act, as the parties and child’s names have been anonymised.

• [18] I direct copy of this judgment be referred to the Family Court.

Grice J

Solicitor:

Crown Law, Wellington.

¹⁰ Care of Children Act 2004, s 4. Oranga Tamariki Act, s 4A.