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LA on behalf of WA (child) v Chief Executive of the Ministry of Social Development [2016] NZHC 1141 (30 May 2016)

High Court of New Zealand

LA on behalf of WA (child) v Chief Executive of the Ministry of Social Development [2016] NZHC 1141 (30 May 2016)

Last Updated: 12 August 2016

NOTE: PURSUANT TO S 437A OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT

1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT-US/ABOUT- THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001062 [2016] NZHC 1141

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 30 May 2016 at 2.15 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date..............................}

LA v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 1141 [30 May

2016]

Introduction

[1] This proceeding is an application for an order of habeas corpus in respect of a nine-year-old child, W. The applicant, Mr A, describes himself as W’s foster parent. Until 27 April 2016 Mr A had day-to-day care of W pursuant to a parenting order. On 27 April 2016 Judge E Smith made an order under s 78 of the Children Young Persons & Their Families Act 1989 granting custody of W to the Chief Executive of the Ministry of Social Development pending final determination of the proceedings and subject to a review. W was immediately removed from Mr A’s care.

[2] The Chief Executive’s application was made without notice. Mr A applied unsuccessfully to discharge the order. There is to be a review hearing in June 2016. In the meantime, Mr A has brought the present proceedings. He asserts that Judge Smith’s order is invalid because the prerequisites of r 220(2) of the Family Courts Rules 2002 were not satisfied so that there was no jurisdiction to make the order on a without notice basis.

Relevant principles

[3] Section 14 of the Habeas Corpus Act 2001 relevantly provides that:

(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; but this subsection does not entitle a Judge to call into question—

(a) a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or]

(b) a ruling as to bail by a court of competent jurisdiction.

(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.

[4] Because of W’s age s 13 applies. It allows for the transfer of an application in which a child’s welfare is in issue to the Family Court without first determining it:

(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].

[5] The determination of applications for habeas corpus involving children in the context of an ex parte order under s 78 of the Children Young Persons & Their Families Act was considered by the Court of Appeal in DE v Chief Executive.¹ The Court accepted that there was power for the Family Court to make an ex parte interim custody order under s 78 provided the proper procedural requirements had been followed and the threshold set out in the Family Court Rules was satisfied. The

Court did not accept that the mere existence of such an order was a conclusive answer to a habeas corpus application; where the interests of justice require the Court will inquire into the legality of the order, provided the issues are apposite for determination within the parameters of a habeas corpus hearing.² However, the general position is that stated in Manuel v Superintendent of Hawkes Bay Regional Prison:³

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 and

¹ _{DE v Chief Executive [2007] NZCA 453.}

² _{At [39].}

³ Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).

determination ... 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.

[6] The Court also pointed out that where such an inquiry was not possible judicial review proceedings could be a more suitable vehicle⁴ and noted that in F v The Chief Executive of the Ministry of Social Development a custody order had been treated as a conclusive answer to the habeas corpus application 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.⁵

[7] As to the making of an order under 78 the Court in DE noted the duty on the applicant to provide all relevant information including that which might point away from the application being granted.⁶ Further, even if the prerequisites are met it is for the Court to consider whether it was necessary to proceed ex parte; that course should only be taken if it is in the interests of the welfare and best interests of the child involved, and the concerns cannot be met with an urgent or Pickwick hearing.⁷

Any delay on the part of the applicant should be explained.⁸

Mr A’s application

[8] The Chief Executive’s application for the s 78 order was supported by an affidavit from a social worker, Paul Jones. He set out the events over the two months preceding the application that led up to the order being sought. The essential aspects of the chronology outlined in Mr Jones’ affidavit were:

• On 26 February 2016 the Ministry received a confidential report regarding W being late to school, coming to school without food, being unsupervised to and from school (with an increased risk due to his ADHD diagnosis and threatening and intimidating behaviour observed by Mr A toward school staff).

⁴ _{At [35].}

⁵ _{F v The Chief Executive of the Ministry of Social Development [2007] NZCA 50; [2007] NZFLR 613 at [14].}

⁶ _{At [43].}

⁷ _{At [44].}

⁸ At [45].

• On 1 March 2016 the Ministry made an official request to the Police for records relating to Mr A and his then partner Ms C. The information it received included three reported family violence incidents and an attempted suicide by Mr A on 20 January 2016.

• On 7 March 2016 a social worker interviewed W at school and W made negative statements about Mr A, including W’s perception that Mr A wants to hurt him when he gets angry. He also said that he gets hit (though was not specific about who hit him).

• On 10 March 2016 another social worker and Mr Jones met with Mr A to discuss the various concerns. Mr A’s response was that he considered the reports to have been malicious and the result of a dispute that he was having with management at the school. Mr Jones considered that Mr A’s presentation was defensive and avoidant and did not address the concerns being raised. Mr A did also speak about his attempted suicide, his recent serious illness and the stress arising from a dispute with his former wife.

• On 25 March 2016 the Ministry received a report from the Police about a domestic incident on 24 March 2016 that occurred when Ms C went to pick up her belongings from Mr A’s home. W was present.

• On 30 March 2016 MSD made a request to Barnardos for information regarding their involvement with Mr A.

• On 20 April 2016 Police Constable Green expressed concern to Mr Jones about the level of care W was receiving from Mr A and Ms C including their use of methamphetamine and/or cannabis, their unstable relationship, and the general state of the home. The Police provided a report confirming those statements.

• On 9 April 2016 the Police attended an incident at Mr A’s home and referred to Ms C’s attempted suicide two days previously.

• On 15 April 2016 Police attended another domestic incident. When they arrived W told them that Ms C was using drugs.

• On 19 April 2016 the social worker received a phone call from the Auckland Hospital emergency department regarding Ms C’s presentation and emotional state; she had presented with a self- inflicted head injury that had occurred while she was in Police custody.

• On 20 April 2016 Mr Jones received a phone call from Police Constable Green again expressing concerns about the state of the property W was living in and about the fact that W appeared scared of Ms C.

• On 21 April 2016 social workers visited Mr A’s home. W was home but Mr A was not. Other neighbourhood youths were also present but there was no designated babysitter for W. Mr Jones emailed Mr A that day asking to meet with him.

• Also on 21 April 2016 Mr A telephoned Mr Jones in response to the email. He refused to meet and was upset that Mr Jones had not responded to his request for support and his concerns about an incident at a previous holiday programme. Later Mr A telephoned again to complain about the visit from the other social workers earlier in the day.

• On 22 April 2016 social workers visited Mr A at home to discuss support services but Mr A said he did not feel the need to complete parenting programmes and deflected the issue of him agreeing to undergo a hair follicle test to ascertain methamphetamine and cannabis use.

[9] In the minute making the s 78 order Judge Smith referred to Mr Jones’ affidavit and concluded that there were significant care and protection concerns, including suggestions that W had been hit, recent severe mental health difficulties that Mr A had experienced, suggestions of neglect and potential drug use. The Judge also noted that the delay that would be caused by making the application on notice would or might entail serious injury / undue hardship / risk to the personal safety of the child.

[10] Mr A’s argument focused on r 220(2) which allows an order (including one under s 78) to be made ex parte if (relevantly) the delay that would be caused by the making of the application on notice would or might entail:

In proceedings under the Children Young Persons & Their Families Act

1989, serious injury or undue hardship or risk to the personal safety of the child or young person who is the subject of the proceedings, or any person with whom that child or young person is residing, or both ...

[11] Mr A argued that because Mr Jones’ affidavit shows that various steps were taken over the course of more than a month, W’s position could not be regarded as sufficiently concerning to warrant a without notice application. He asserted that there was no evidence that W was in any immediate danger. He also expressed disagreement with a number of statements made by Mr Jones, including Mr Jones’ reliance on statements made by Police Constable Green.

[12] The threshold for an ex parte application under r 220(2)(a)(i) is not immediate danger. Given the contents of Mr Jones’ affidavit there can be no realistic challenge to the Judge’s view that the threshold of risk to W’s personal safety was met. It was not until March that the W disclosed that he was being hit at

home. It was not until later in March that the Chief Executive received information about Mr A’s attempted suicide. It was not until April that the Chief Executive received information about drug use at the property. It is evident that during April the problems seemed to be escalating and that Mr A was not engaging with the Ministry regarding W’s safety. On Mr A’s own account this household was one in which there had been serious mental health issues and drug use. Those factors in themselves would have justified a s 78 order even without reference to the other material provided by the social worker’s report.

[13] In these circumstances there is no realistic basis on which to challenge the validity of Judge Smith’s order. Moreover, there is a review of the order scheduled for the Family Court and that is the appropriate place for Mr A to challenge the factual basis for the order.

_{[14] The application is dismissed.}

P Courtney J