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PG v Chief Executive of the Ministry of Social Development [2013] NZHC 3089 (21 November 2013)

Last Updated: 13 March 2014

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANT AND THE CHILDREN WHO ARE THE SUBJECT OF THE APPLICATION

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-919 [2013] NZHC 3089

IN THE MATTER OF an application to the High Court for the issue of a writ of habeas corpus pursuant to the Habeas Corpus Act 2001 section

5(b) AND

BETWEEN P G Applicant

AND CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Judgment: 20 November 2013

Counsel: Appellant in person

P Crayton for Respondent

Reasons: 21 November 2013

_{REASONS FOR JUDGMENT OF KATZ J}

Solicitors: Almao Douch, Office of the Crown Solicitor, Hamilton

_{Copy to: Mr P G}

P G v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 3089 [21 November 2013]

Introduction

[1] The applicant, Mr G, has applied for a writ of habeas corpus under the Habeas Corpus Act 2001 (“Act”) in relation to his two daughters, TP and TW. The respondent, the Chief Executive of the Ministry of Social Development (“Chief Executive”), opposes the application.

[2] I heard the application yesterday morning immediately prior to the commencement of a jury trial at 10:00 am. At the conclusion of the hearing I dismissed the application. Given my other Court commitments I advised that written reasons would follow, as soon as possible. My reasons for dismissing the application are set out below.

[3] As I noted at the conclusion of the hearing, I accept that Mr G was motivated to bring the habeas corpus application due to his love and concern for his daughters. However, the habeas corpus jurisdiction is a narrow one. My role in determining Mr G’s habeas corpus application was not to review or reconsider the merits of decisions that have been made in the Family Court regarding the care and welfare of Mr G’s children. The sole issue before me was whether the Family Court decisions are lawful.

Background

[4] Gillian Thomas swore an affidavit on behalf of the Chief Executive, in opposition to the habeas corpus application. Ms Thomas is the Ministry solicitor assigned to TW’s file and she also has knowledge of the legal matters relating to TP. Her affidavit sets out the factual background and annexes relevant court documents. My summary below is based on those materials.

[5] TP and TW are the children of Mr and Mrs G (who are separated). The children do not reside with either parent.

[6] TW is under the guardianship of the Court under ss 31 and 33 of the Care of

Children Act 2004, pursuant to an order made in the Family Court on 29 October

2012. The Chief Executive is appointed as agent for the Court generally. I have

been provided with a copy of the relevant guardianship order and have reviewed it carefully.

[7] There have also been care and protection proceedings in relation to TP. On

22 August 2012, Judge R J Russell made various orders in the Family Court regarding TP. This included the appointment of Mr and Mrs D as guardians of TP pursuant to s 27 of the Care of Children Act 2004, as well as the appointment of the Chief Executive as a guardian of TP for specified, fairly narrow, purposes. In addition, Judge Russell made a parenting order granting day to day care of TP to Mr and Mrs D. I have been provided with a copy of Judge Russell’s judgment and have also carefully reviewed that. I note that at [26] the Judge ordered that no further applications in relation to TP were to be filed by either Mr or Mrs G for a period of two years, without leave of the Court.

[8] Recently, TP has made an allegation of abuse against her caregiver. As a result, a temporary care agreement has been entered into pursuant to s 139 of the Children, Young Persons, and Their Families Act 1989 (“CYFPA”) placing TP in the care of the Chief Executive for a period of 28 days, ending on 27 November 2013. Under this agreement, TP is currently placed by the Chief Executive with a Ministry approved caregiver.

Habeas Corpus Act 2001

[9] Applications for the writ of habeas corpus must be determined under s 14 of the Act, which relevantly provides:

14 Determination of applications

(1) If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

(1A) Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that—

(a) section 15(1) applies; or

(b) an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.

(2) A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors....

(3) Subject to section 13(2), a Judge must determine an application by—

(a) refusing the application for the issue of the writ; or

(b) issuing the writ ordering the release from detention of the detained person.

[10] Section 13 is also relevant in this case:

13 Powers if person detained is young person

(1) In dealing with an application in relation to a detained person who is under the age of 18 years, the High Court may exercise the powers that are conferred on a Family Court by the Care of Children Act 2004.

(2) If the substantive issue in an application is the welfare of a person under the age of 16 years, the High Court may, on its own initiative or at the request of a party to the proceeding, transfer the application to a Family Court.

(3) An application referred under subsection (2) 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.

[11] The interrelationship between ss 13 and 14 of the Act was considered by the Court of Appeal in F v Chief Executive of the Department of CYFS.¹ In that case the Court of Appeal held that a determination must be made under s 14 before a referral to the Family Court could be made pursuant to s 13. The Law Commission subsequently expressed concern about this interpretation,² observing that if the application has been determined by the High Court under s 14 by a finding that the “detention” of a child is lawful, “then it must be that there is nothing live to be transferred to the Family Court”.³ The Law Commission therefore recommended an

_{amendment to the Act, to make clear that, were the High Court to transfer a habeas}

¹ F v Chief Executive of the Department of Child, Youth and Family Services CA130/05, 20 July

_2005.

² _{Law Commission Habeas Corpus: Refining the Procedure (NZLC R100, 2007).}

³ At 16.

corpus application to the Family Court, it need not “determine” the application in

accordance with s 14 first.⁴

[12] The recommended amendment has now been enacted. It came into force in March of this year. It was effected by the addition of the words “subject to s 13(2)” at the beginning of s 14(3).⁵ This Court accordingly now has jurisdiction to transfer a habeas corpus application directly to the Family Court, without first determining it, if the substantive issue raised by the application relates to the welfare of a person under the age of 16 years.

[13] The leading decision on habeas corpus applications in relation to children in care is the Court of Appeal decision of E v Chief Executive of the Ministry of Social Development.⁶ That case arose in a somewhat different context to this one, but nevertheless includes a number of helpful observations on the correct approach to such applications, including the following:

[34] If we had regard only to the bare words of the statute the Chief Executive’s argument would not be sustainable. However, it was held by this Court in Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1

NZLR 161 (CA) that, correctly interpreted, the Habeas Corpus Act contemplates a consideration of the underlying questions of fact and law only to the extent to which the arguments at issue are properly susceptible to fair and sensible summary determination: Manuel at [47] – [51]. Any inquiry into underlying facts and law must be 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: Manuel at [47].

[35] Where that is not the case, judicial review proceedings may be a more suitable vehicle for addressing the complaints: Manuel at [48] and [49]; Campbell v Superintendent Wellington Prison [2007] NZAR 52 at [35] (CA). In such cases, the production of a warrant or other document which provides the basis for the detention may be a decisive answer to a habeas corpus application. Where a case is not suitable for summary determination, rights of appeal will also be relevant to a determination of whether a writ of habeas corpus should be issued: T(CA222/07) v Regional Intellectual Care Agency [2007] NZCA 208, at [28] – [30]. Any alternative remedy, however, must be either equally efficacious or even more so than a writ of habeas corpus: T(CA222/07) at [28].

⁴ _{At 16.}

⁵ _{Habeas Corpus Act 2013, s 6(2).}

⁶ E v Chief Executive of the Ministry of Social Development [2007] NZCA 453; [2008] NZFLR

85.

[36] The existence of another remedy is not a jurisdictional bar to any inquiry into the underlying facts and law in terms of s 14(2) of the Habeas Corpus Act. That there is another remedy gives a Court power to refuse to make such inquiries where the matter is incapable of summary determination. It does not prevent it from making inquiries in the context of a habeas corpus application into the underlying facts and law if the interests of justice so require: Manuel at [49]. To hold that the existence of another remedy, even one equally or more efficacious, prevents a court examining the underlying facts and law when considering a habeas corpus application would not accord with the statutory language in s 14(2) and with the scheme and purpose of the Habeas Corpus Act.

...

[38] We consider that the position was more accurately put by this Court in its judgment on a later habeas corpus application made by the same father. The Court said that a custody order made in 2006 was a conclusive answer to the application but it explained that this was because the matters raised were more properly dealt with by way of an appeal from the Family Court decision or possibly by way of judicial review: F v The Chief Executive of the Ministry of Social Development [2007] NZCA 50; [2007] NZFLR 613 at [14]. This is clearly in line with the authorities discussed above at [34] - [35].

[14] Against this background, I turn to consider the specific issues raised by Mr G

in support of his application and the Chief Executive’s submissions in opposition.

Mr G’s submissions

[15] Mr G appeared in person, with the support of Ms Raewyn Gerrard who informed me that she was representing Mr G as his “Maori Agent”.

Ms Gerrard’s involvement

[16] I note that the habeas corpus application was filed by Ms Gerrard as Mr G’s agent. Ms Gerrard asserted that, as a Maori Agent, she was authorised to represent Mr G in these proceedings pursuant to both the Law Practitioners Act 1982 and the Lawyers and Conveyancers Act 2006.

[17] I have now had an opportunity to review the relevant legislation. It is apparent that Ms Gerrard’s understanding of her entitlement to represent parties in proceedings in this Court is incorrect. There appears to be no reference at all to Maori Agents in the Lawyers and Conveyancers Act 2006. In relation to predecessor

legislation, Hardie Boys J held in Mihaka v Police⁷ that the reference to a “Maori agent” in s 17(2) of the Law Practitioners Act 1955 is a reference to a person who appears, subject to the approval of the Maori Land Court, before that Court in accordance with the authority conferred by s 58 of the Maori Affairs Act 1953. His Honour held that that Act does not, and cannot, give that person authority to appear in any other Court. Accordingly Ms Gerrard has no authority to represent parties to litigation in this Court, although, with leave of the Court, she may be able to appear as a McKenzie friend.

Mr G’s reasons for bringing the application

[18] Mr G advised that his issues with CYFS go back to 1995. In relation to his daughter, TW, his view is that she was abducted from him by CYFS and that she has no valid birth certificate. He loves her and cares for her. He is not happy with the current arrangements for her care.

[19] In relation to TP he noted that there is currently an investigation into her care and that concerns have been raised regarding her current situation.

[20] It was clear to me that Mr G’s motives are genuine and that his pursuit of a habeas corpus application, although misconceived, was motivated by his love for his two daughters and his concerns regarding their welfare.

[21] Given the restrictive nature of the habeas corpus jurisdiction I asked Mr G to focus his argument on matters which may be relevant to the lawfulness of the guardianship and custody arrangements that are currently in place.

[22] Ms Gerrard then advised that Mr G’s position is that the children are unlawfully detained because they were originally taken from their parents without consent, in breach of the Magna Carta. In addition, she expressed concerns that important procedures and principles under the “Family Court Act” have not been followed. In particular she said that there was an obligation to keep parents

_{informed regarding the whereabouts of their children and that this had been}

⁷ Mihaka v Police [1981] 1 NZLR 54.

breached. It was also alleged that a Family Court group conference that was recently held was a “farce” and that the facilitator had walked out and had a “private meeting” on the phone with an interested party outside of the conference.

[23] Concerns were also raised about the quality of the care and supervision being provided being provided to Mr G’s daughters by their current caregivers.

The Chief Executive’s submissions

[24] In his notice of opposition the Chief Executive set out the following grounds of opposition:

(a) Neither TP nor TW are detained by, or at the direction of, the Chief Executive and he is therefore unable to return a writ of habeas corpus in respect of them.

(b) To the extent that the Chief Executive is able, through the exercise of powers under the Care of Children Act 2004 or CYPFA, to influence decisions as to the custody, care and protection of TP and TW, the exercise of those powers is not a matter that is capable of summary determination under the Habeas Corpus Act 2001, and the application should be transferred to the Family Court, pursuant to s 13 of that Act.

[25] In oral submissions Mr Crayton did not develop these arguments (no doubt in part due to the limited time available) but instead focused on the specific jurisdictional requirements of a habeas corpus order. In particular, he submitted that the orders made by the Family Court concerning the custody and guardianship of the children are clearly lawful. He observed that, despite the latitude extended by the Court in effectively hearing unsworn evidence from both Mr G and Ms Gerrard, they have not been able to identify any matters which cast doubt on the lawfulness on the arrangements which have been made in relation to the children.

[26] Finally, Mr Crayton submitted that if this Court was of the view that there was any justification for further investigation of the lawfulness of the decisions made in the Family Court then the application should be transferred to the Family Court pursuant to s 13(2) of the Act.

Discussion

[27] Given that both children are subject to orders made in the Family Court in relation to their care and welfare, I have carefully considered whether the best course would simply be to transfer this application to the Family Court pursuant to s 13(2) of the Act. If I had any reservations at all about the lawfulness of the current care and welfare arrangements I would have done so. I concluded, however, that the habeas corpus application was misconceived. Transferring it to the Family Court would simply delay the inevitable.

[28] The reason that Mr G’s habeas corpus application is misconceived is that there is simply no basis for any finding of unlawfulness in respect of the relevant Family Court orders. All of the orders which have been made in relation to the custody, guardianship or parenting of the children were made pursuant to specific statutory provisions and are clearly within the jurisdiction of the Family Court. There are no factors in this case that indicate that any of the orders may have been made unlawfully or improperly.

[29] To the extent that Mr G takes issue with the arrangements that have been made for the care and protection of his children, his proper remedy lies in an appeal from the Family Court or, possibly, judicial review. The habeas corpus jurisdiction is not the proper forum for the airing of issues that are best raised on appeal. As the learned authors of The Law of Habeas Corpus observe:⁸

Nor ought habeas corpus proceedings to be brought to challenge the exercise of local authority powers in relation to children who are the subject of ongoing care proceedings in the family courts. To the extent that the lawfulness of local authority actions can be ventilated in the care proceedings, an additional challenge by application for habeas corpus, or indeed by way of application for judicial review, is inappropriate. The

8. Judith Farbey and RJ Sharpe The Law of Habeas Corpus (3^rd ed, Oxford University Press, New York, 2011) at 55.

position is different in relation to local authority decisions that cannot be subsumed in other pending or future proceedings. In such a situation, habeas corpus may be a possible remedy but in S. (A Minor) v Knowsley Borough Council. Charles J commented that judicial review is likely in most cases to be the most appropriate remedy.

(Footnotes omitted).

[30] Although that text refers to the position in England (and cites numerous English authorities in support) the underlying principles are equally apt in New Zealand and are reflected in the passage from E v Chief Executive of Ministry of Social Development I have set out at [13] above.

[31] Similar observations have been made in other cases. In Arumalla v Kilari,⁹ the Court of Appeal upheld an appeal against a writ of habeas corpus that had been issued in a case involving custody issues. The Court held at [18], that “the proper venue for consideration of the dispute between the parties over B was the Family Court, not the High Court on a habeas corpus application”. The Court referred to various authorities, including Jayamohan v Jayamohan.¹⁰ In that case, Blanchard J

discussed the writ of habeas corpus, and considered the decision of Re D (Infants)¹¹

in which Wilson J had observed that “habeas corpus proceedings are a most

inconvenient way of deciding questions of custody”.¹² He elaborated as follows:¹³

These questions are not suitable to be decided in such an arbitrary manner as is contemplated by the rules governing the issue of habeas corpus where any alternative method is available. They are matters of the utmost importance. They require for a proper decision the fullest information about the respective parents and homes, their associates and their general fitness to bring up the children to the best advantage of those children. It is quite clear that in these circumstances that sort of inquiry could not adequately be made because habeas corpus proceedings contemplate that there should be an immediate hearing and an immediate determination.

[32] In Skelton v Jones, the Supreme Court confirmed that resort to habeas corpus in custody cases will be rare in modern times. ¹⁴

⁹ _{Arumalla v Kilari [2009] NZCA 180; [2009] NZAR 450.}

¹⁰ _{Jayamohan v Jayamohan [1995] NZFLR 913.}

¹¹ _{Re D (Infants) [1969] NZLR 865.}

¹² _{Above, n 9 at [19].}

¹³ _{At 865 – 866..}

¹⁴ Skelton v Jones [2006] NZSC 113; [2007] 2 NZLR 178 at [19].

[33] In New Zealand the particular concerns that arise when habeas corpus applications are made in relation to young people have received express statutory recognition. Section 13(1) of the Act provides that when an application relates to a person under 18 the High Court may exercise the powers that are conferred on a Family Court by the Care of Children Act 2004. Further, s 13(2) provides that the application may be transferred to the Family Court if the substantive issue in the application is the welfare of a person under 16.

[34] Accordingly, Mr G’s belief that the outcome of a successful habeas corpus application would be the automatic return of his daughters to his care is misplaced. That is not what s 13 of the Act contemplates. Rather, the appropriate course when habeas corpus issues are legitimately raised in a care and protection context would be for this Court to either itself exercise the powers conferred by the Care of Children Act 2004 or to transfer the application to the Family Court to enable it to do so. That would not necessarily result in the return of a child to its parents.

[35] The Court of Appeal has previously stated that habeas corpus should be reserved for issues properly susceptible to fair and sensible summary determination.¹⁵ The real issue underlying Mr G’s application is not the lawfulness of the guardianship, custody, and parenting orders made in the Family Court. Rather, he believes that the Family Court has made the wrong decisions. However, such concerns cannot be summarily determined in the context of a habeas corpus application. The proper course is to raise them in the context of the Family Court proceedings including, if appropriate, by way of appeal from decisions made in the

course of those proceedings.

Result

[36] For the reasons outlined I was satisfied, in terms of s 14 of the Act, that TP and TW are lawfully “detained” and that the orders made by the Family Court relating to their custody, guardianship and parenting were lawfully made under the

_{relevant legislation. I accordingly dismissed the habeas corpus application.}

¹⁵ Manuel v Superintendent, Hawkes Bay Regional Prison [2005] 1 NZLR 161 at [47] – [51] (CA); E v Chief Executive of the Ministry of Social Development [2007] NZCA 453; [2008] NZFLR 85 at [91].

[37] Finally, I make an order prohibiting publication of the names or identifying

_{particulars of the applicant and the children who are the subject of the application.}

Katz J