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Adamson v Oranga Tamariki [2022] NZHC 2153 (26 August 2022)

Last Updated: 9 September 2022

JUDGMENT OF GWYN J

• [1] On 24 August 2022 the applicants filed an application under the Habeas Corpus Act 2001 on behalf of the child of the second applicant and grandchild of the first applicant.

ADAMSON v ORANGA TAMARIKI [2022] NZHC 2153 [26 August 2022]

• [2] As in earlier litigation,¹ in order to protect the identity of the child, I will refer to her as Alice, the first applicant as Mr Adamson and the second applicant as Ms Jones. This will allow this decision to be reported, while protecting the identity of the whānau, consistent with ss 11B, 11C and 11D of the Family Court Act 1980 and s 437A of the Oranga Tamariki Act 1989.

• [3] The application alleges that Alice is being held without proper grounds under the Oranga Tamariki Act 1989 (the Act).

• [4] I convened a telephone conference with the applicants and counsel for the respondent, Mr Britton, on 25 August 2022. After reading the written material filed and hearing from the parties, I declined the application, but said I would issue a written judgment setting out my reasons for doing so.

Background

• [5] The background to this case is set out in some detail in the judgment of Cooke J in Adamson v Oranga Tamariki.² In summary, Alice was born with complications affecting her ability to feed and to grow. She was removed from the care of her mother because paediatricians and other health professionals had significant concerns that Alice’s special needs were not being properly addressed in the care of her mother and maternal grandparents.

• [6] A guardianship order under s 110(1) and (2)(b) of the Act, in favour of the Chief Executive of Oranga Tamariki, was made by Judge T M Black in the Family Court on 11 April 2021 (guardianship order). That order was confirmed on appeal on 12 September 2021.³

• [7] A custody order under s 101 of the Act was made by Judge Black in the Family Court on 12 October 2021 (custody order). That order was appealed but deemed abandoned for non-payment of security for costs on appeal.⁴

¹ Adamson v Chief Executive of Oranga Tamariki [2021] NZHC 2530, at [1].

² At [5]-[21].

³ Adamson v Chief Executive of Oranga Tamariki, above n 1.

4. Adamson v Chief Executive of Oranga Tamariki HC Wellington CIV-2021-485-627 & CIV-2021- 485-640, 11 March 2022 (Minute of Cooke J); and Certificate of Result of Appeal, 28 March 2022.

• [8] Alice is presently in the custody and guardianship of the Chief Executive and in her paternal grandmother’s day-to-day care.

• [9] Extensive litigation has followed the making of the guardianship and custody orders. Alice’s maternal family have filed at least 11 proceedings in relation to Alice’s care and protection in 2021. In November 2021 Isac J struck out five further proceedings brought by the whānau.⁵ That decision was appealed to the Court of Appeal but deemed abandoned for failure to pay security for costs on appeal.⁶

• [10] In the application before me, the applicants point to two things which, they say, mean that the guardianship and custody orders are not valid. First, at a judicial conference on 15 December 2021 Judge Black stated to all parties that “the medical risks to Alice had now been mitigated”. Second, on 13 April 2022 Judge Black raised with Mr Schaare, counsel for Oranga Tamariki, the Judge’s view that the proceedings should now move back to being Care of Children Act proceedings. The applicants say that these two statements from Judge Black demonstrate that there is no longer a proper basis under ss 68 and 73 of the Act for the orders in favour of Oranga Tamariki and the orders should be discharged.

• [11] There are several current proceedings relevant to the application before me. The first is the applicants’ 26 November 2021 application in the Family Court for access to Alice, pursuant to s 121 of the Act. That matter was to be the subject of a mediation conference in March 2022, but in the intervening period the applicants filed a number of applications which effectively sought the immediate return of Alice to their care. In a minute of 8 June 2022 Judge Black indicated a provisional view about access, but explicitly noted that he was not predetermining the issue. The applicants submit that there has been undue delay in that proceeding. While it is correct that no hearing has yet been allocated, the last call was a teleconference on 18 July 2022 and counsel for Oranga Tamariki confirms that the Chief Executive’s submissions were filed on 11 August 2022 and counsel will cooperate with the applicants to expedite a hearing date.

⁵ Adamson v Chief Executive of Oranga Tamariki [2021] NZHC 3044.

⁶ Adamson v Chief Executive of Oranga Tamariki [2022] NZCA 89.

• [12] The applicants have also filed a without notice application in the Family Court on 26 January 2022 seeking to vary and/or discharge the guardianship and custody orders. It appears that application remains before the Family Court.

• [13] In addition to the Family Court proceedings, there is an application for judicial review filed in this Court on 25 July 2022 (judicial review proceedings). The statement of claim in that application substantially mirrors the material filed in support of this habeas corpus application and essentially seeks the same relief, that is, that the custody and guardianship orders are unlawful. Most recently in that proceeding, the applicants filed an interlocutory application without notice which sought to have the Court set aside “all current orders in favour of Oranga Tamariki”. In a minute of 5 August 2022 Cooke J said:⁷
  • [3] The current judicial review seems to be a further attempt to challenge the Family Court decisions in a way that circumvents the rights of appeal in s 341 of the Oranga Tamariki Act 1989.

• [4] The interlocutory application without notice simply seeks orders that the decisions challenged by way of judicial review be set aside without notice to the respondents. This is plainly not an interlocutory order. Neither is there any basis to make orders without notice. The application is an abuse of process. The interlocutory application is accordingly dismissed.

• [14] The validity of the custody and guardianship orders are squarely in issue in these proceedings. I expect the Family Court hearing will also consider Alice’s medical needs and whether they have changed, thus justifying a change in the guardianship and custody orders, regardless of any conclusions as to the validity of those orders.

Habeas Corpus Act 2001

• [15] Applications for a writ of habeas corpus are determined under s 14 of the Act:

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.

7. Adamson v Chief Executive of Oranga Tamariki HC Wellington CIV-2021-485-414, 5 August 2022 (Minute of Cooke J), at [3]-[4].

(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) All matters relating to the costs of and incidental to an application are in the discretion of the court and the court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.

(5) A writ of habeas corpus may be in the form set out in the Schedule.

• [16] Section 14(1A) is relevant. This provision was added by Parliament in 2013 to modify the normal requirement that the respondent must establish the detention is lawful once an applicant has demonstrated that he or she is detained. The Court may refuse to issue a writ of habeas corpus without requiring the respondent to establish that the detention is lawful if the Court is satisfied that habeas corpus “is not the appropriate procedure for considering the allegations made by the applicant”.⁸

• [17] The issues raised by the applicants are not ones that are properly susceptible to fair and sensible summary determination on an application for a writ of habeas corpus. They are matters that would require considerable evaluation⁹ and are already squarely before this Court and the Family Court.

⁸ Habeas Corpus Act 2001, s 14(1A)(b).

9. Manuel v Superintendent of Hawke’s Bay Regional Prison [2005] 1 NZLR 161 (CA) at [46] and [49].

• [18] Because habeas corpus is not the appropriate procedure for considering the applicants’ allegations, it is not necessary for the respondent to establish that Alice’s detention is lawful, or for the Court to determine the lawfulness of her detention. Nevertheless, I am satisfied that the matters raised by the applicants do not go to the validity of the custody and guardianship orders.

Result

• [19] The application for a writ of habeas corpus is dismissed.

Gwyn J