AB v Chief Executive of Ministry of Social Development

[2012] NZHC 3168

NOTE:  PURSUANT TO S437A OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1194 [2012] NZHC 3168

UNDER  The Children, Young Persons & Their

Families Act 1989

IN THE MATTER OF     an appeal against a decision of Family

Court at Upper Hutt

BETWEEN  AB AND BC Appellants

ANDTHE CHIEF EXECUTIVE OF MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:         23 November 2012

Counsel:         J Sanders for the Appellants

P Paino for the Children
R Chan for Respondent

Judgment:      26 November 2012

JUDGMENT OF MALLON J

Introduction

[1]      Before me for determination is an interlocutory application in relation to an appeal from a Family Court decision.  The applicants, and the appellants in the

AB AND BC V THE CHIEF EXECUTIVE OF MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV-2012-

485-1194 [26 November 2012]

appeal, are the biological parents of eight children ranging in age from two to 15 years old.  The eight children are in the care of Child, Youth and Family Services. The appeal is from the Family Court’s decision to reduce the contact that the parents have to their eight children.   The interlocutory application is for leave to adduce further evidence on the appeal, in the form of a report from a psychologist.

[2]      The application is opposed by the respondent (“the MSD”).  The lawyer for

the children takes a neutral position.

Leave required

[3]      It is common ground that r 20.16 of the High Court Rules applies in relation to the appeal from the Family Court decision.  Under that rule, a party to an appeal may adduce further evidence only with the leave of the Court.  Further, leave may only be granted by the Court if there are “special reasons” for hearing the evidence.

Factual background

[4]      In early 2009 the parents sought assistance from government agencies in relation to their eldest child’s behaviour.  As a result of that approach, a declaration that this child was in need of care and protection was made with the consent of the parents in November 2009.  The next six children were removed from the parents’ care shortly afterwards.  A declaration that they were in need of care and protection was made following a defended hearing in April 2012.   The youngest child was removed from the parents’ care following his birth in April 2010.   Following a hearing on 16 June 2010, a declaration was made that the youngest child was in need

of care and protection.[1]  The parents have a mild intellectual disability and, at least in

respect of the middle six children, the declarations were made largely due to issues of neglect.

[1] The declarations in respect of all children were made pursuant to the grounds in s 14(1)(a), (d)

and (f) of the Children, Young Persons, and their Families Act 1989.

[5]      At the time of the hearing before the Family Court, the eldest child was in the care  of  a  non-kin  caregiver  by  himself.    At  the  time  of  the  hearing  of  the

interlocutory application before me, the eldest child’s placement had broken down. He  had  left  his  placement  and  ridden  his  bicycle  to  his  parents’ place.    He  is currently cared for in a home facility.  The other seven children are being cared for by a couple, who are also non-kin caregivers.

[6]      The parents have had various contact arrangements for their children since

2009.   For a period, the parents had unsupervised contact with their seven older children for six to eight hours a day during the weekend, while their contact with their youngest child was supervised and for a few hours at a time.  From November

2011 until 7 May 2012, the parents’ contact with the children was reduced to one hour of supervised contact per week at the office of Child, Youth and Family in Upper Hutt.

[7]      The present  appeal  concerns the  Family Court’s  decision,  in  a judgment delivered on 7 May 2012, on an application by the MSD to reduce the parents’ contact to supervised contact, four times per year for a period of two hours at a time. The Family Court Judge granted that application.  Since then, contact has occurred on two occasions in accordance with this decision.  On the first occasion there was supervised  contact  with  the  eight  children  at  McDonald’s.    The  lawyer  for  the children reports that this was not terribly successful.  The second occasion was at a facility arranged by Barnardos.  The lawyer for the children reports that this contact went very well.

The Family Court decision

The evidence considered

[8]      Because of the history of the proceeding and its nature, the Family Court’s file is substantial.  It is therefore not clear precisely what parts of the file the Judge would have considered in determining the application.  The lawyer for the children submits that the safest course is to proceed on the basis that the Court relied on those matters that the Judge refers to in his judgment, namely:

(a)      an affidavit filed by the MSD reporting on the children’s behaviour

before and after contact visits;

(b)an  affidavit  from  a  coordinator  employed  by  IDEA  Services  in relation to the eldest child;

(c)      assessments by ICAFFS in respect of the third eldest child prepared in

April 2011;

(d)an  assessment  by  ICAFFS  in  respect  of  the  fourth  eldest  child prepared in September 2011;

(e)      assessments on the parents (not specifically identified).

[9]      Except possibly in relation to the reference to “assessments on the parents”, the District Court Judge did not refer to the most recent psychological report on the Court file, which is dated 18 December 2009.  The referral issues considered by the psychologist in that report are mostly concerned with issues relating to the parents. However some of the referral issues related to the children, including that the psychologist was to “consider which access arrangements will best meet the needs of the children in both the short and long term”.  The conclusion on that issue was as follows:

In the short-term, until the long term care arrangement is known, I think that weekly contact is appropriate, but I would suggest two hours rather than one and more effort to provide enjoyable activities for the children.  In the long- term, if the children remain in care and not with their parents I think that contact should be less frequent, maybe fortnightly or monthly, but the actual frequency should be guided by the ability of [AB] and [BC] to accept the arrangement and not undermine it.

The Court’s reasons for the decision

[10]     The Family Court Judge’s reasons for his decision on the application were as follows:

[34]      In  a  case  where  the  goal  is  for  long-term  permanent  placement outside the family, the intent is for the child to be able to form secure attachments with that child’s caregivers.  Consequently any regular

access has the effect of being disruptive and undermining that ultimate goal.  This cannot be in the best interests and welfare of the child.  Ultimately it is the best interests and welfare of the child that must be the primary goal in cases such as this and not the best interest and welfare of parents.

...

[36]      The Department is perhaps fortunate in this situation in that they have caregivers who are prepared to take seven children, two of whom clearly have difficulties, and care for them on a long-term permanent basis.   It is quite clear from the evidence that has been before this Court previously, and which is by and large confirmed through the assessments now undertaken on the parents, that the parents cannot expect the children to be returned to their care.   It would  not  be  in  the  interests of  the  children  for  them to  be  so returned, so consequently long-term placement is the only viable option.

[37]      When one reaches that conclusion, then the issue of access becomes quite straightforward.   Its purpose must be to only maintain knowledge and awareness of one’s family connections, and that can be achieved by limited contact during a year.  Frequent access as is proposed by the parents would clearly undermine the stability, security, safety and development of these children and would therefore undermine their long-term best interests and welfare.

[38]     In those circumstances I have come to the clear view that the application should be granted.

Grounds of appeal

[11]     The parents’ points on appeal are as follows:

(a)      the Court failed to request an updated report from a psychologist so as to have information as to the welfare and interests of each individual child;

(b)      the  Court’s  decision  did  not  differentiate  between  each  child’s

particular needs and circumstances;

(c)      the Court failed to consider the wishes of the children, because the five older children indicated through their counsel that they enjoyed their contact visits with their parents;

(d)the Court placed undue weight on the hearsay evidence of the social worker as to what the caregiver of the seven children had allegedly reported to the social worker, and did not counterbalance this with any reference to the children’s wishes as reported through the lawyer for the children.

Special reasons?

[12]     Counsel for the parents submit that there are special reasons to grant leave to adduce an updated psychologist’s report.   She submits that the family situation is unusual because:

(a)       of the number of children;

(b)      the children range in age between two and 15 years;

(c)      each child has their own issues (eg. one child has an eating disorder and two of the children may have intellectual disabilities similar to their parents); and

(d)the  children’s  previous  contact  with  their  parents  have  differed (eg. the eldest child lived with his parents until he was 10 years old, whereas the youngest child has never lived with his parents).

[13]     Counsel for the parents submits that the Family Court was in error in making a global assessment of what was in their best interests by ordering the same contact for all of them, regardless of their particular circumstances.   She submits that an updated psychologist report under s 178 of the Act would provide the Court with relevant, reliable and probative information in ascertaining the welfare and best interests of each child.

[14]     Counsel for the MSD submits that the matters relied on by the parents are not special reasons.  Under s 178 of the Act, at any stage of the proceedings the Judge may request that a psychological report be obtained on application by the parties or

the lawyer for the children or on the Judge’s own motion.   Counsel for the MSD submits that if anyone had considered the report to be relevant, they would have sought a report for consideration in respect of the application to reduce contact.

[15]     In my view, this is not the strongest submission for the MSD because it may be that the parties ought to have requested an updated report given that the last report was over two years old.  If I were persuaded that a psychologist report would assist in the determination of the appeal, I would be open to ordering it even if the parties ought to have requested it at the time of the Family Court hearing.

[16]     I consider that the stronger point submitted by counsel for the MSD is that a report from the psychologist will not assist the Court as to whether the Family Court erred as alleged by the parents.  I agree with counsel for the MSD that obtaining an updated psychologist report will not assist with whether the Family Court Judge wrongly made a global assessment of the best interests of the children, did not consider the children’s wishes and placed too much weight on the hearsay evidence of the social worker.

[17]     A psychologist report might, however, be relevant to remedy if the Family Court erred in any of the respects alleged.   One possible approach is to obtain a psychologist report now in case the appeal is upheld and the report assists with what contact should be ordered in the place of the existing contact order.  The alternative is to determine the appeal and, if it is successful, to refer the appeal back to the Family Court to obtain a psychologist report (if appropriate) and to reconsider the contact orders in the light of any such report.

[18]     I consider that the latter alternative is the preferable course.  If a psychologist report is obtained now, it may end up being unnecessary if the appeal grounds are not successful.   If the appeal is successful, the better place to determine new contact arrangements, if there are to be any, is the Family Court.   It is the court of first instance, it has all the background material, it receives the regular care plans the MSD is required to submit, and as the lawyer for the children submits, the situation with the children is fluid (as is illustrated by the recent change to the eldest child’s care arrangements).    I consider that,  for the purposes  of the appeal  which  will

determine whether the Family Court erred as alleged, the Court will be sufficiently informed of the individual positions of the children, via an updated memorandum from the lawyer for the children.

Result

[19]     Accordingly, the application for leave to adduce further evidence in the form of an updated psychologist report is dismissed.  A timetable for the hearing of the appeal needs to be put into place.   The proceeding should be listed in the next Judge’s chambers list for that purpose.

Mallon J

Solicitors:

Julia Sanders, Upper Hutt for the Appellants

Crown Law, Wellington for the Respondent