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C v D HC Rotorua CIV 2007-463-57 [2007] NZHC 1594 (9 February 2007)

Last Updated: 3 January 2011

NOT TO BE PUBLISHED SAVE IN ACCORDANCE WITH SECTION 139

_{CARE OF CHILDREN ACT 2004}

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CIV 2007-463-0057}

BETWEEN C

First Intended Appellant

AND D

Second Intended Appellant

AND S Respondent

Hearing: 5 February 2007 (at Hamilton)

Counsel: J N Briscoe for First Intended Appellant D Wells for Second Intended Appellant C Elliott for Respondent

M Callander, Counsel Assisting the Court

Judgment: 9 February 2007

Reasons: 15 March 2007

_{REASONS FOR JUDGMENT OF HEATH J}

Solicitors:

Davys Burton, PO Box 248, Rotorua

C Elliott, Auckland

Till Henderson King, Hamilton

_{M Callander, Rotorua}

C V D AND ANOR HC ROT CIV 2007-463-0057 9 February 2007

Contents

_{Para No}

Introduction [1] Judgment [4] The Family Court judgment [7] C’s standing to appeal [20] Applications for leave to appeal – legal principles [44] C’s intended appeal [50] Mr D’s intended appeal [52] Ms S’s position [57] Discussion on merits of C’s intended appeal [63] Discussion on merits of Mr D’s intended appeal [86] Costs [91]

Introduction

[1] In August and October 2006, over ten sitting days, the Family Court heard evidence and argument on an application to resolve a dispute between guardians. At issue was whether Mr D and Ms S’s daughter (C), aged 11 years, should attend a registered school or continue to be educated at home by her father.

[2] On 6 December 2006, Judge Twaddle delivered a comprehensive reserved judgment in which he held that C ought to be enrolled for and educated at the local Intermediate School. The Judge also directed that, after finishing her intermediate education, she was to attend a registered secondary school.

[3] On 23 January 2007, Mr Briscoe, on direct instructions from C, sought leave to appeal against the Judge’s decision. Any child who is the subject of an order made by the Family Court is given a right of appeal by s 143(2) of the Care of Children Act 2004 (the Act). The following day, Mr D sought leave to appeal on different grounds. Both C and her father sought a stay of the Family Court decision pending appeal. Because the dispute before the Family Court was one between guardians leave to appeal is required.

Judgment

[4] After a hearing on 5 February 2007, I gave a short judgment (on 9 February

2007) in which I gave leave for C to bring her applications in her own name but dismissed both her and her father’s applications for leave to appeal. I said:

[1] For reasons to be given later:

a) I grant leave for [C’s] applications for leave to appeal and stay of judgment to be brought in her own name.

b) [C’s] application for leave to appeal is dismissed.

c) [Mr D’s] application for leave to appeal is dismissed.

d) The order for stay made at the conclusion of the hearing on 5

February 2007 is vacated. The Family Court judgment of 6

December 2006 must now be given effect. I indicate my expectation that [C] will be enrolled to attend at [the] Intermediate School next week and will commence school no later than Monday 19 February

2007.

[2] My decisions have been reached after consideration of relevant evidence and the submissions made at the hearing on 5 February 2007. The giving of reasons for my decision has been deferred because a number of issues raised are of importance with regard to Family Court practice and in relation to the bringing of appeals to this Court by children. It will take some time for those reasons to be finalised. Because my view is that the Family Court judgment ought to be given immediate effect, I have decided to announce the decisions now, with reasons to follow.

[3] On an appeal to this Court, questions of costs arise. If costs were ordered it would generally be appropriate for them to be ordered on a 2B basis together with reasonable disbursements. In relation to costs:

a) Mr Briscoe is to file and serve a memorandum by midday on 16

February 2007 advising the Court who or what agency is meeting (or has met) [C’s] costs on the applications for leave to appeal and stay.

b) If costs were sought by [S], a memorandum should be filed and served by midday on 23 February 2007. Any such memorandum should be limited to no more than three pages and identify succinctly the basis on which costs are sought.

c) Any memorandum in reply shall be filed and served (limited in the same way) by midday on 2 March 2007.

I will deal with any questions of costs arising among the parties when delivering my reasons for today’s judgment.

[5] The order for stay made at the conclusion of the 5 February 2007 hearing was to ensure the status quo was maintained pending determination of the applications for leave to appeal. That status quo involved C being educated at home but attending at a registered school one day per week. Once leave had been refused there was no reason for the stay to remain. That was the reason for vacating the interim order for stay.

[6] In my judgment of 9 February 2007, I referred to the parties by name. That judgment has not been (and will not be) released publicly. Because the issues raised are important to Family Court practice and to appellate processes in this Court, these reasons have been prepared for publication in a manner that complies with s 139(1) of the Act.

The Family Court judgment

[7] Mr D and Ms S have been separated for some time. They share responsibility for the primary care of C. As C’s parents, they are her guardians.

[8] The question of how C should be educated has been the subject of disagreement between Mr D and Ms S for some time. Ms S has wanted her daughter to attend a registered school, while Mr D preferred to educate C at home.

[9] In late 2004 and early 2005 Judge Twaddle conducted a lengthy hearing which dealt with both education and care arrangements. In a judgment delivered on

6 May 2005, Judge Twaddle concluded, on the education issue:

[104] I find that [C] is being taught at least as regularly and as well as she would be in a registered school. Over the past year or so her range of activities and the people she meets have expanded. Her ability to socialise and interact with other people has developed. While some of [Mr D’s] concerns about registered schools are idealistic, they are not, given [C’s] age, completely unrealistic. But if she is to live in the community as a happy and competent adult, she will need to learn how to deal with the issues which are of concern to [Mr D]. On my assessment, [C’s] need for social contact is now being met. I find that the evidence does not establish sufficient advantage for [C] in going to a registered school over her current situation to warrant a change. Having said that, however, as [C] gets older her educational needs will become more sophisticated and the likelihood of [Mr D] and [Ms S] being able to meet those needs will diminish. By some

point in the future (possibly within the next year or so) the balance is likely to tip in favour of [C] attending a registered school. While [C] should have input into this decision, her age and lack of experience of a registered school as an option mean that her wishes cannot be decisive; the decision must be made by [Ms S] and [Mr D].

Unhappily, the judgment of 6 May 2005 did not resolve issues of education. C’s parents continued to disagree over the method of her schooling.

[10] Disputes between guardians can be referred to the Family Court for resolution. In this case, application was made to the Family Court for directions under s 44(1)(b) of the Act. On such an application, the Court may make such order as it thinks proper to resolve the dispute: see s 44(3) of the Act.

[11] One of the duties of a guardian is to determine “for or with the child” questions about “important matters” affecting the child: s 16(1)(c) of the Act. Section 16(2)(d) defines the method of education as one of the “important matters affecting the child”.

[12] Judge Twaddle correctly directed himself as to the legal basis upon which he was required to determine the application. His Honour held that the discretion conferred by s 44(3) must be exercised on a principled basis; in a manner consistent with the principles set out in the preliminary provisions of the Act. The Judge referred expressly to s 4 of the Act, which requires the welfare and best interests of the child to be the first and paramount consideration. He also emphasised s 5(b) of the Act: the principle that there should be continuity in the arrangements for a child’s care, development and upbringing.

[13] In approaching the issues on that basis the Judge endorsed C v W (2005) 24

FRNZ 872 at 876, para [24], in which Judge O’Dwyer had highlighted the importance of the Family Court considering “the longer term developmental, educational, cultural and familial needs of a child”. In applying Judge O’Dwyer’s approach, the Judge declined to follow Millist v Millist (2001) 20 FRNZ 335, in which Judge Callaghan had suggested that the “convention” or “settled practice” that most children go to a registered school should be taken as the presumptive starting point for an inquiry of that type: at 348. Rightly, in my view, Judge Twaddle took

the view that a presumptive approach might deflect the Court from a broad consideration of the welfare and best interests of the child. I endorse Judge Twaddle’s view that “a neutral starting point to what will best meet a child’s needs is required”.

[14] Particular difficulties arose over C’s representation at the Family Court hearing. Before the August 2006 hearing began, C made it clear that she was not prepared to discuss substantive issues with the lawyer appointed to act for her.

[15] After hearing from the appointed lawyer, Judge Twaddle decided (in terms of s 7(2) of the Act) that “no useful purpose” would be served in requiring him to continue to act for C or appointing an alternative lawyer acceptable to C. The Judge took the view that C’s views had been clearly expressed and that he was able to take them into account when making his decision on educational issues. The Judge terminated the appointment of the lawyer with whom C would not communicate. Although the Judge did not appoint another lawyer to act for C he did appoint a senior practitioner (Mr Callander) as Counsel to Assist the Court.

[16] In addition, during the course of the substantive hearing, Judge Twaddle saw C in chambers, in the presence of Mr Callander, to ascertain her views on the education issue.

[17] After reviewing relevant evidence (including letters and emails composed by C) the Judge concluded that C was under the influence of her father, “such that she would not feel safe voicing an opinion” which differed from his. For that reason, while accepting that C had made her views (that she wished to be educated at home by her father) clear, the Judge found that “they have been influenced by her father to such an extent that they can be given little weight”.

[18] The Judge then weighed advantages and disadvantages in favour of continued home education and attendance at a registered school. His Honour concluded:

[145] If [C] is directed to attend school on a full time basis, she may take some time to adjust but I am required to take a long term view and I am satisfied that, with consistency of routine, she will adjust. Also, as she has been attending school (albeit as a visitor) for one day a week for some time,

there has already been a period of adjustment for her. I take into account also that going to school would not preclude her from involvement in hands-on activities and projects which she enjoys; she can do these after school when she is in the care of her father.

[146] Having weighed these factors, I am satisfied that [C’s] welfare and best interests will be served if she goes to a registered school.

[19] The formal orders of the Court required C to be enrolled as a full-time student at a local intermediate school in 2007. She was to complete her intermediate education at that school. She was also to complete secondary education at a registered school.

C’s standing to appeal

[20] For the first time in guardianship proceedings, the Act has conferred a right of appeal on any child whose interests were the subject of a proceeding under the Act. Section 143(2) of the Act states:

143 Appeals to High Court

...

(2) A party to proceedings in which there is made a decision to which subsection (1) applies, or a child to whom those proceedings relate, may appeal to the High Court against the decision. However, if the proceedings are under section 44 or section 46, the party or child may appeal only with the leave of the High Court.

....

[21] It is clear from s 143(2) that a right of appeal is conferred on C. What is less clear is whether she is entitled as of right to bring an appeal in her own name.

[22] The novel nature of the appellate right conferred on a child is discussed in Ludbrook and de Jong, Care of Children in New Zealand: Analysis and Expert Commentary (Thomson Brookers 2005) at 452-455, para CC143.28. The learned authors refer to a number of “thorny issues” that the appeal right raises, though noting that children and young people who are the subject of proceedings under the care and protection provisions of the Children Young Persons and Their Families

Act 1989 have (since enactment of that Act) had a right of appeal. There are no reported cases in relation to that particular appeal right.

[23] Among the issues raised by Ludbrook and de Jong are: (a) the need or otherwise for a representative to be appointed for a child appellant; (b) the age at which a child is capable of giving instructions to a lawyer; (c) the problem of creating an appeal right in favour of someone who was not a party to the litigation that gave rise to the decision challenged on appeal and (d) the right (or otherwise) for the child to attend the hearing of the appeal and to view documents.

[24] For the purpose of C’s intended appeal, I have considered the procedure that ought to be followed to enable a child to exercise a right of appeal to this Court. In following the process I outline, those who act for child appellants will need to bear in mind the age of the child and the child’s capacity to give instructions. As Ludbrook and de Jong observe (at 454), s 7 of the Act fixes no chronological age at which children are deemed to be capable of giving instructions to the lawyer appointed to act for them.

[25] In the fullness of time, it may be necessary for this Court to address in detail some of the other problems identified by Ludbrook and de Jong. As I have not heard argument on such issues and it is unnecessary to decide them for the purpose of determining C’s intended appeal, I deliberately refrain from commenting further on them.

[26] Section 143(4) provides that the High Court Rules and ss 73-78 of the District Courts Act 1947 apply to an appeal under s 143. There is nothing in the specified sections of the District Courts Act dealing with an appeal brought by a minor. However, there are provisions in the High Court Rules which apply. Those rules provide the framework for commencement of an appeal by a child under s 143 of the Act.

[27] Rules 82-94B of the High Court Rules were inserted, as from 1 February

2003, by r 8 of the High Court Amendment Rules (No 2) 2002 (SR 2002/410). The object of the amendments was to simplify the rules relating to proceedings brought

by or against incapacitated persons and to create one class of person who could act on behalf of an incapacitated person in the High Court. That person is now known as a “litigation guardian”. The definition of that term, in r 82, makes it clear that a litigation guardian fulfils the same functions as what was previously called a guardian ad litem.

[28] Subject to r 84 of the High Court Rules, any “incapacitated person must have a litigation guardian as his or her representative in any proceeding”: r 83. The term “incapacitated person” includes a person who is a “minor” within the meaning of s 4 of the Age of Majority Act 1970, namely a person under the age of 18 years. Plainly, C falls within that definition.

[29] Rule 85(3) provides that the High Court may, “on its own initiative or on an ex parte application made at any time by any person” appoint, as a litigation guardian, any person who satisfies the requirements of r 85(2). Rule 85(2) provides that a litigation guardian must be able, fairly and competently, to conduct proceedings on behalf of an incapacitated person, that his or her interests cannot be adverse to those of the incapacitated person and the appointee must consent to appointment.

[30] Appointment as a litigation guardian precedes the issue of proceedings in the High Court. A litigation guardian authorised to conduct a proceeding must file a copy of the order empowering him or her to conduct the proceeding at the same time as the first document relating to the proceeding is filed: r 86. Rule 88 explains what heading should be put on Court documents if an incapacitated person is represented by a litigation guardian.

[31] Once appointed, a litigation guardian may do anything in relation to a proceeding that could have been done by the incapacitated person if he or she were not incapacitated: r 87.

[32] The rules on costs are not disregarded simply because a litigation guardian has been appointed: see rr 90-93.

[33] Rules 94 and 94A deal, respectively, with retirement, removal or death of a litigation guardian and the effect of a person ceasing to be incapacitated.

[34] The role of a guardian ad litem (by reference to which the role of a litigation guardian must be judged) was discussed in Re S (a minor) (independent representation) [1993] 3 All ER 36 (CA). That case involved parties to family proceedings. Coincidentally, it involved an 11 year old boy who sought leave to conduct proceedings without a guardian ad litem under r 9.2A(4) of the (English) Family Proceedings Rules 1991.

[35] Rule 9.2A(4) empowered the relevant Court to give leave for a minor to prosecute or defend the remaining stages of a proceeding and to seek removal of any guardian ad litem or next friend. Rule 9.2A(6) provided that leave under r 9.2A(4) could only be granted if the Court considered “that the minor concerned has sufficient understanding to participate as a party in the proceedings concerned or proposed without a next friend or guardian ad litem”.

[36] Sir Thomas Bingham MR, delivering the judgment of the Court of Appeal, said that, in determining whether to give leave for a child to continue proceedings in his or her own name, “a judicious balance [needs] to be struck between two considerations”:

First is the principle, to be honoured and respected, that children are human beings in their own right with individual minds and wills, views and emotions, which should command serious attention. A child’s wishes are not to be discounted or dismissed simply because he is a child. He should be free to express them and decision-makers should listen. Second is the fact that a child is, after all, a child. The reason why the law is particularly solicitous in protecting the interests of children is because they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will react and the imagination to know how others will react in certain situations, lacking the experience to measure the probable against the possible. Everything of course depends on the individual child in his actual situation. For purposes of the 1989 Act, a babe in arms and a sturdy teenager on the verge of adulthood are both children, but their positions are quite different: for one the second consideration will be dominant, for the other the first principle will come into its own. The process of growing up is, as Lord Scarman pointed out in [Gillick v West Norfolk and Wisbech Area Health Authority] [1985] 3 All ER 402 at 421, [1985] UKHL 7; [1986] AC 112 at 186, a continuous one. The judge has to do his best, on the evidence before him, to assess the

understanding of the individual child in the context of the proceedings in which he seeks to participate. (at 46-47)

[37] The comparator provision in the High Court Rules is r 84. Rule 84 provides:

84 Incapacitated person who may conduct proceeding in own name

(1) An incapacitated person who is permitted by statute to conduct a proceeding in his or her name may elect to conduct a proceeding in his or her own name or to have a litigation guardian represent him or her.

(2) An incapacitated person who is not permitted by statute to conduct a proceeding in his or her own name, but who wishes to conduct a proceeding in his or her own name, may apply to the Court to conduct the proceeding without a litigation guardian.

(3) On an application under subclause (2), the Court may allow the incapacitated person to conduct the proceeding in his or her own name if it is satisfied that the incapacitated person is capable of making the decisions required, or likely to be required, in that proceeding.

(4) Rules 85 to 94B do not apply to an incapacitated person who elects to conduct a proceeding in his or her own name or is allowed by the Court to conduct a proceeding in his or her own name. (my emphasis)

[38] The combined effect of rr 83 and 84(2) is to mandate appointment of a litigation guardian for a minor unless the Court is satisfied that the child is capable of making decisions required for the purpose of the proceeding.

[39] In order for r 84(1) to apply, so as to avoid the need for a child to apply to conduct a proceeding in his or her own name, I hold that a statute must expressly state that the child is permitted to conduct the contemplated proceeding in his or her own name without a litigation guardian. That is so because r 83 has the force of statute by virtue of the fact that the High Court Rules are a Schedule to the Judicature Act 1908. Another statute would need to be expressed in clear and unambiguous terms to permit the child to bring the proceeding in his or her own name, in order to override the effect of r 83.

[40] In my view, s 143(2) of the Act is insufficient to achieve that purpose because it does not expressly override r 83 and, if it were applied literally, any child (no matter how young) would be given a right to conduct a proceeding in his or her own name. The latter is an absurd and unworkable proposition.

[41] An added reason for the conclusion I have reached is that the Act contemplates appointment of a litigation guardian for a child in relation to proceedings before this Court. Section 27(3) of the Act provides:

27 Court-appointed guardians

(3) However, only the High Court may appoint or remove a litigation guardian for proceedings before the High Court or a court higher than that Court, but the High Court may also appoint or remove a litigation guardian for proceedings that are not before the High Court or a court higher than that Court.

[42] It follows that some person (possibly the lawyer appointed to represent the child in the Family Court or some close relative or friend willing to do so) should file an ex parte application for appointment of himself or herself as litigation guardian to bring an appeal to this Court under s 143(2) of the Act. The application would need to address potential liability for costs: see r 91(1) of the High Court Rules. No appeal could be filed until such time as a guardian ad litem had been appointed or the Court had authorised the child to proceed in his or her own name under r 84(3).

[43] On 9 February 2007, I made an order under r 84(3) granting leave for C’s applications for leave to appeal and stay of judgment to be brought in her own name. I made that order based on Mr Briscoe’s assurance that C, despite her age, understood sufficient about the proceeding to provide him with instructions. Having regard to the uncertainty over the procedure to be followed on a child’s appeal and my assessment of the lack of merit of the grounds of appeal, I decided to make an order without inquiring further. Ordinarily, I would have required admissible evidence of C’s capacity to make decisions required to prosecute the intended appeal.

[44] My reasons for permitting C to bring her intended appeal in her own name should not be treated as anything other than an expedient to enable questions of process to be adequately addressed. My decision should be treated as exceptional and ought not to be regarded as a precedent.

Applications for leave to appeal – legal principles

[45] Section 143(2) of the Act requires an intended appellant to obtain leave from this Court if he or she intends to appeal against a decision given to resolve a dispute between guardians.

[46] I discussed the circumstances in which leave might be granted in PJKW v DAR [Guardianship] [2006] NZFLR 946. After discussing relevant authorities, I said:

[40] Returning to s 143(2), any decision whether to grant leave must be based on the first and paramount consideration of the welfare and best interests of the child: s 4(1). That is made clear by s 4(1)(a) which requires that welfare and best interests inquiry to be undertaken “in proceedings under this Act”. If that threshold were met the need for this Court to act as gate-keeper suggests that this Court must be satisfied that the issue is sufficiently important to be subjected to an appeal notwithstanding the nature of the decision, the need for stability to be brought to the life of the child and the inevitable cost and delay inherent in an appellate review.

[41] Section 143(2) of the Act permits an appeal with leave of the High Court in respect of decisions made under ss 44 and 46 of the Act. Section 44 deals with the resolution of disputes between guardians. Section 46 enables a child over the age of 16 years to seek review of a parent’s or guardian’s decision “in an important matter”. Other guardianship decisions do not fall within s 143(2).

[42] The issue of education is expressly dealt with under s 16(2)(d). In addition, “important matters affecting the child” include:

(a) The name of the child;

(b) Residence of the child, including issues arising from travel, that may affect the relationship with parents or guardians;

(c) Medical treatment;

(d) Religious and cultural considerations.

[43] It seems axiomatic that disputes involving “important matters affecting the child” as defined by s 16(2) are more likely to be of a type justifying leave than others. That is not to say that leave will always be granted in such cases. Rather, the nature of the decision suggests that it is one on which appellate review might be desirable.

[44] A guardianship decision may have been made on an erroneous statement or application of an applicable legal principle. If a material error of law can be identified as seriously arguable, and prejudice may result if leave

were not granted, it is likely that leave would be granted. Further, alleged errors of fact may be sufficient, particularly where it is alleged that a Judge has made a factual finding on a material issue for which no evidential foundation was available.

[45] By way of counterbalance, this Court must be mindful that it ought only to grant leave to appeal a decision resolving a dispute between guardians if the issue were sufficiently important to justify the additional time and cost involved in determining an appeal and the delay in bringing stability to the life of the child.

[46] In each case, it will be necessary to balance those various factors to determine whether leave to appeal ought to be granted. The overriding consideration will be the welfare and best interests of the child.

[47] In giving judgment on 9 February 2007, I dismissed both applications for leave. While the nature of the issue weighed in favour of leave, I regarded the weakness of the appeal points and the need to bring finality to lengthy litigation about the mode of C’s education as the primary factors supporting my decision to refuse leave.

[48] It is only because the issues raised on C’s intended appeal raise important questions of practice (for the Family Court) and principle (in relation to appellate procedures in this Court) that I am discussing those issues in detail. Although those issues are of importance generally, they were never going to be determinative of the instant case.

[49] Because leave to appeal has been refused, I intend to deal briefly with the issues raised on Mr D’s intended appeal. My purpose is only to identify the weaknesses which led me to the conclusion that leave to appeal ought to be refused.

C’s intended appeal

[50] C sought to challenge the judgment on the grounds that it produced a result that was inconsistent with her welfare and best interests. She complains that the Judge did not take her views (that she should continue to be educated at home) into account in making his decision.

[51] Two substantive grounds of appeal were advanced:

a) First, that the Judge erred in failing

i) to inquire into the circumstances in which C had elected not to speak to the lawyer appointed to represent her; and

ii) to determine whether that was an informed decision.

2. Second, whether, in seeing C to ascertain her views, the Judge erred i) in declining to allow her to have a support person present; or

ii) by failing to put to her concerns that she was being inappropriately influenced by her father in expressing the view that she wished to be educated at home by him.

Mr D’s intended appeal

[52] Mr D’s appeal also proceeds on the footing that the Judge erred by making an order inconsistent with the best interests and welfare of C. His primary complaint is that the Judge’s assessment of his personality traits and influence over his daughter was flawed. Ms Wells submitted there was no evidence from which the Judge was entitled to draw adverse inferences about the father’s credibility or personality.

[53] Ms Wells advanced a further ground of appeal based on the failure of the Judge, at the commencement of the hearing, to adjourn because the father had been unable to secure legal representation for the hearing. Mr D had expressed a preference to proceed with counsel present.

[54] The background to the proposed second ground of appeal lay in a hearing in early August 2006, during which Judge Twaddle was told that Mr D’s then counsel might not be available for the hearing. The Judge declined to grant an adjournment, holding that there was sufficient time for fresh counsel to be instructed or for Mr D’s then counsel to make alternative arrangements in respect of those matters on which he asserted conflicts.

[55] Ms Wells submitted that the father’s inability to have counsel of choice conduct the hearing on his behalf meant that the evidence presented was less focussed than it ought to have been and led to relevant evidence (relating to the concept and practice of home schooling) not being available for the Court to consider.

[56] Ms Wells submitted that Mr Coleman, the educational psychologist appointed by the Court, admitted in evidence that he did not specialise in home schooling.

Ms S’s position

[57] S opposed both applications for leave to appeal and stay.

[58] Ms Elliott, for the mother, submitted that a litigation guardian ought to have been appointed if the application for leave to appeal were to be pursued.

[59] Ms Elliott also submitted that Judge Twaddle was entitled to ascertain C’s views in the way he did and that there was no legal obligation on him to inquire into the reasons for the daughter not engaging with her counsel.

[60] Ms Elliott noted that this was not the first hearing in which the daughter had been required to see Judge Twaddle. She referred to the earlier hearing involving questions of primary care, contact and education that took place in November 2004 and March 2005 and led to the judgment of 6 May 2005, to which I have already referred.

[61] Ms Elliott submitted that it was clear that C was not prepared to discuss issues with any lawyer appointed by the Court. In those circumstances she submitted that Judge Twaddle was entitled to terminate the appointment of the lawyer representing the child and not to appoint another lawyer.

[62] Ms Elliott noted that, when the lawyer for the child’s appointment was terminated, Mr Callander was appointed as Counsel to Assist the Court, an appointment that brought some oversight on the critical “best interests” inquiry.

Discussion on merits of C’s intended appeal

[63] Section 7 of the Act provides:

7 Lawyer to act for child

(1) A Court may appoint a lawyer to act for a child who is the subject of, or who is a party to, proceedings (other than criminal proceedings) under this Act.

(2) However, unless it is satisfied the appointment would serve no useful purpose, the Court must make an appointment under subsection (1) if the proceedings—

(a) involve the role of providing day-to-day care for the child, or contact with the child; and

(b) appear likely to proceed to a hearing.

(3) To facilitate performance of the lawyer's duties and compliance with section 6 (child's views), the lawyer must, unless he or she considers it inappropriate to do so because of exceptional circumstances, meet with the child.

(4) The lawyer may call any person as a witness in the proceedings, and may cross-examine witnesses called by a party to the proceedings or by the Court.

[64] The role of the lawyer representing a child includes conveying views of the child on the application before the Court to the presiding Judge. Section 6(2) provides:

Child’s views

(2) In proceedings to which subsection (1) applies,—

(a) a child must be given reasonable opportunities to express views on matters affecting the child; and

(b) any views the child expresses (either directly or through a representative) must be taken into account. (my emphasis)

[65] Section 6(2) requires a Court to ensure that a child is given “reasonable opportunities” to express views on matters affecting him or her. Further, it directs the Court to take into account those views, whether conveyed directly or through a representative.

[66] The role of Lawyer for the Child must be undertaken having regard to the paramount consideration of the “welfare and best interests of the child”: s 4(1). Principles relevant to the child’s welfare and best interests are set out in s 5.

[67] Some debate has been engendered by the enactment of s 7 of the Act. That debate centres on whether there has been a change in the role of a lawyer appointed to act for a child. The difference of opinion has been caused by the opening words of s 7(1) which require the Court to appoint a lawyer “to act” for a child. The comparable provision in the Guardianship Act 1968 (s 30) required the Court to appoint counsel “to represent” the child in cases involving custody or access, except where it would be futile to do so: generally, see Re R (2004) 24 FRNZ 120 at paras [43]-[48].

[68] In Re R, Keane J regarded the role of counsel for the child under the 1968 Act to have been settled definitively in R v H [2000] 2 NZLR 257 (CA). Delivering the judgment of the Court in R v H, at paras [21] and [22], Richardson P said:

[21] As emphasised in this Court in M v Y [1994] 1 NZLR 527 at pp 538 –

539, the purpose of the appointment of counsel under s 30(1)(b) is to represent the child; counsel’s responsibility is to preserve and promote the welfare of the child; and counsel’s role as aptly brought out in cl 5.3(d) of the Family Court Practice Note (and we summarise) is: (i) to interview the parties and those able to assist in the parenting and to ensure that all relevant facts are investigated, collected and presented to the Court; (ii) to ascertain the wishes of the child and pass the information on to the Court; (iii) to negotiate or mediate in the most appropriate way the welfare of the child; (iv) to advocate by submissions (or if necessary by calling evidence and cross-examination) the welfare of the child; and (v) to protect the child from unnecessary examinations, tests and evaluations. For similar statements by the Family Court of Australia of the role of the separate representative for a child appointed under s 68L of the Family Law Act 1975 see Laws of Australia, Title 17.7 Parenting Orders and Related Matters paras [91] and [92].

[22] Relevant features for present purposes are: (1) counsel acts as legal representative and at any Court hearing presents submissions and may cross- examine and call evidence as in other litigation but reports to the Court and,

while obviously respecting wishes the child expresses, does not receive instructions as such and exercises an independent judgment as to what is in the best interests of the child; (2) the corollary is that the child’s participation in the Court-directed process is not wholly voluntary; and (3) it is understood that communications from the child to counsel may be relayed to the Court and made known to the parties. While akin to a solicitor-client relationship it has special statutory features which necessarily preclude or limit the full application of conventional legal professional privilege (compare Re L (a Minor) [1997] AC 16 and R v Derby Magistrates’ Court, ex parte B [1995] UKHL 18; [1996] AC 487, and the need to balance the interests of the child under the Guardianship Act with fair trial rights affirmed by the Bill of Rights).

[69] The opposing views on whether s 7 of the Act requires a different view of the role of the lawyer appointed to represent a child are summarised succinctly in Ludbrook and de Jong at 86-87, para CC7.09. One school of thought is that s 7 now requires the appointed lawyer to act on instructions whenever the child is of sufficient age and maturity to express a view and is willing to do so. The opposite view is that the position following R v H continues to apply.

[70] This is an issue on which it is unnecessary for me to express a concluded view. On either approach, the appeal point relating to Judge Twaddle’s decision to terminate appointment of the lawyer for the child can be resolved without discussion of that issue.

[71] Mr Briscoe submitted that the Judge made a decision against C’s views in circumstances in which he must be regarded as having not taken those views into account.

[72] Mr Briscoe complained that the Judge ought to have allowed a support person to be present at his interview with C and that the Court ought to have appointed another lawyer to represent C, one with whom she was able and willing to communicate.

[73] Mr Briscoe submitted that there was an obligation on the Family Court to ensure that a child’s views are adequately ascertained and conveyed to the Court. In that regard Mr Briscoe also placed emphasis on the fact that the educational psychologist appointed by the Court, Mr Coleman, did not specialise in home education issues and appeared unable to establish any relevant rapport with C.

[74] In my view, Judge Twaddle’s decisions on issues involving termination of the appointment of the lawyer to act for C cannot be impugned.

[75] First, as Randerson J, Chief High Court Judge, said in C v S [2006] 3 NZLR

420, at para [31](c), the obligation under s 6(2)(a) of the Act is to give reasonable opportunities to the child to express views on matters affecting him or her. Further, the Chief Judge observed that the Act did not stipulate how opportunities were to be provided for the child’s views to be expressed. The Family Court has a discretion to determine what is reasonable and appropriate in any given case. Ultimately, it was for the Judge to determine whether reasonable opportunities had been provided for those views to be expressed.

[76] Second, in the present case, it is clear that C was not prepared to engage in any meaningful manner with the lawyer appointed to act for her. Attempts made by that lawyer to meet with C were outlined in a memorandum to the Judge. The lawyer (a senior practitioner with vast experience as counsel for the child) told the Judge that he found it impossible to discuss substantive matters with her. The Judge also received confirmation in writing from C that she did not want that particular person to be her lawyer. An opportunity was provided to C to express her views through the lawyer appointed to act on her behalf but she deliberately decided not to take advantage of that opportunity.

[77] Third, C had the opportunity to discuss relevant issues with the Court appointed psychologist. However, he reported that C refused to engage with him, apart from “the most cursory of hellos and goodbyes”.

[78] While dealing with the psychologist’s situation, I note that K v K [2005] NZFLR 28 at para [91] appears to have been read by some as suggesting that the wishes [views] of a child should only be introduced through counsel for the child or an interview of the child by the Judge. Venning J and I, in K v K, made it clear that “wishes” would “primarily” be introduced in that manner and our comments were made in the context of unequivocal views that were to be conveyed in simple form from the child to the Judge. I emphasise that nothing in K v K was intended to affect the ability of a child psychologist to use special skills to interpret what has been said

to confirm that what a child is saying is what he or she means and to convey the results of the use of that expertise to the Court.

[79] Fourth, the Judge received letters and emails written by C which made abundantly clear her view that home education by her father should continue. Nobody reading that correspondence could have been left in any doubt of the strong views held by C. Furthermore, it is clear that Judge Twaddle interviewed C and that she expressed precisely the same views.

[80] Fifth, the fact that the Judge declined to act on C’s views did not mean he failed to take them into account. Plainly, he did take them into account. The Judge formed an adverse view of Mr D and the influence he was exercising over C. That finding made it inevitable that the Judge would not accept C’s views as determinative. The Judge was under no obligation to act on the views she had expressed.

[81] Sixth, the Judge was not under any obligation to permit any particular person to be present when he interviewed C. There is merit in the point made by Ms Elliott, for Ms S, that C had previously met Judge Twaddle (during the course of the hearing that took place in late 2004 and early 2005) and there was no suggestion that C was under any disability in expressing her views to the Judge.

[82] Seventh, it was open to the Judge, having received a report from the lawyer appointed to represent C, to find that C was not prepared to engage with any lawyer appointed to act for her by the Court. The Judge was under no obligation to appoint someone whom C approved.

[83] In the circumstances disclosed, I have no hesitation in holding that the Judge was right to terminate the appointment of the lawyer representing the child on the grounds that “no useful purpose” would be served by his continued appointment or the appointment of any other lawyer.

[84] C’s position was also protected to an adequate degree by the appointment of Mr Callander, as Counsel Assisting the Court. In giving reasons for his decision to terminate the appointment of the lawyer for C, Judge Twaddle said:

[26] Section 130 of the Act provides that the Court may appoint a lawyer to assist the Court. The lawyer can call witnesses and cross examine witnesses.

[27] I consider it would be appropriate for a lawyer to be appointed to assist the Court to explore the evidence and options before the Court and to make submissions to assist the Court in determining what will best serve [C’s] welfare and best interests.

[85] Eighth, it was unnecessary for the Judge to put to C any concerns he had about her father’s influence over her. Having regard to the firm views she expressed in writing and orally to the Judge, it is difficult to see how, by putting those concerns, her position could have been enhanced.

Discussion on merits of Mr D’s intended appeal

[86] Mr D’s intended appeal can be discussed briefly.

[87] It was open to the Judge, contrary to Ms Wells’ submission, to make an assessment of Mr D’s personality traits and his influence over his daughter. Having reviewed the evidence, I am satisfied there was ample ground for the Judge to form the views he did.

[88] On the issue of adjournment, the substantive point made was that the inability of Mr D to have counsel of choice meant that the evidence presented was less focussed than it ought to have been and led to relevant evidence about the concept and practice of home-schooling not being available to the Court to consider. From my reading of the record, Mr D was able to conduct his case more than adequately. Further, the suggestion that evidence on the topic of home education should have been greater than that actually presented over the course of a hearing that took ten sitting days to complete is worrying.

[89] Judge Twaddle gave careful consideration to the extensive evidence presented before him and reached a conclusion, which was open to him, on the mode of education best suited to meet C’s welfare and best interests. In no material respect, can it be suggested that the absence of counsel of choice created an injustice sufficient to order a re-hearing. Nor can it be seriously suggested that the orders made were not in C’s best interests.

[90] In my view, neither of the points raised on behalf of Mr D has any merit.

Costs

[91] In my judgment of 9 February 2007, I sought memoranda on issues of costs. [92] Mr Briscoe advised me that an application for legal aid was made by C.

Initially, the Legal Services Agency declined aid under s 13(2) of the Legal Services Act 2000. The application has been pursued on the basis that s 13(5) entitled the Agency to waive any requirements or conditions set out in s 13. The Agency has not yet accepted that contention. However, the important fact is that no natural person is underwriting C’s costs.

[93] Mr D is legally aided, as is Ms S.

[94] In those circumstances, it would be futile to make any order for costs. There will be no order for costs on the intended appeals.

P R Heath J