Chief Executive of the Ministry for Vulnerable Children v Grant-Shepherd

[2018] NZHC 1260

NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, CHILDREN AND YOUNG PERSONS ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE

FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2259

[2018] NZHC 1260

BETWEEN

CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN
Appellant

AND

JUSTINE GRANT-SHEPHERD AND DAVID BRUCE MENZIES

First Respondents

AND

AND

ALISON LESLIE PRINCE

Second Respondent

JOHN FRANCIS MENZIES

Third Respondent

Hearing:

7 March 2018

Appearances:

S Jerebine and T Burgess for Appellant H Ellis for Respondent

S Jefferson QC, Amicus Curiae

Judgment:

31 May 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 31 May 2018 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:           Crown Law, Wellington Counsel:     S Jefferson QC, Auckland

CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN v GRANT-SHEPHERD AND ORS [2018] NZHC 1260 [31 May 2018]

[1]    The question in this appeal is whether the Court has the power to appoint as a special guardian under s113A of the Oranga Tamariki Act 1989 (the Act) a person who is appointed a guardian or additional guardian when considering an application under s 125 to vary a guardianship order made under the Act.

[2]    The case concerns Oliver Prince, who was born on 15 December 2015. Prior to Oliver’s birth, a declaration was made under s 67 of the Act that Oliver was in need of care and protection, and orders were made granting custody of Oliver to the Chief Executive of Oranga Tamariki and appointing the Chief Executive as an additional guardian.

[3]    The case arises because Justine Grant-Shepherd and David Bruce Menzies, the grandparents and current caregivers of Oliver, have applied under s 125 of the Act to:

(a)Discharge the existing custody order in favour of the Chief Executive;

(b)Vary the existing additional guardianship order to substitute themselves as additional guardians of Oliver in place of the Chief Executive; and

(c)Have themselves appointed special guardians of Oliver under s 110(4).

[4]    There is no issue regarding the validity or appropriateness of the original custody and guardianship orders or the lawfulness or appropriateness of discharging the custody order and varying the additional guardianship order as requested. The only issue is whether there is power under the Act to appoint the grandparents as special guardians if they are appointed additional guardians.

[5]    The Chief Executive supports the grandparents’ application. A plan prepared under s 128 of the Act and a social worker’s report prepared under s 186 of the Act also support the grandparents being made additional guardians and special guardians of Oliver.

[6]    Judge Goodwin in the Family Court1 held the drafting of s 110 to be flawed and decided there is no power to make a special guardianship order under s 110(4). The Judge also decided he could not interpret s 83(1)(h), which empowers a court to make an order under s 110 appointing a guardian, as including a power to appoint a special guardian. Accordingly, the Judge concluded the Court had no jurisdiction to make the special guardianship order sought by the grandparents.2

[7]    The Chief Executive appeals that decision. Her position is that once a person has been appointed a guardian or additional guardian under s 110(2) of the Act,      ss 110(4) and 113A gives the Court the power to appoint that person a special guardian and no separate authorisation or power is required.

[8]    Although named as respondents, the grandparents support the Chief Executive’s position.

[9]    Simon Jefferson QC was appointed to assist the Court. Mr Jefferson submitted two memoranda which endorsed the Family  Court’s  reasoning  and  conclusions. Mr Jefferson also referred the Court to other relevant Family Court decisions, some of which took the same approach as Judge Goodwin.

Agreed position on application of Oranga Tamariki Act and Care of Children Act

[10]   The question for determination is one of statutory interpretation. There is no difference among counsel about the purpose of special guardianship orders which were introduced into the Act as ss 113A and 113B in June 2016 by the Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014. The Amendment Act also introduced the definition of “special guardian” into s 2 of the Act as follows:

special guardian means a guardian of a child or young person appointed under section 110 who is appointed as a special guardian under section 113A.

[11]There are two pathways by which a special guardianship order may be made:

1  v Oranga Tamariki, Ministry for Vulnerable Children [2017] NZFC 6962.

2  v Oranga Tamariki, Ministry for Vulnerable Children [2017] NZFC 6962 at [21]- 23] and [38]-[39].

(a)Pursuant to s110A of the Act, in which case:

(i)the application must be made to replace an existing guardianship order made under s 27 of the Care of Children Act 2004; and

(ii)the Court  must  be  satisfied  as  to  the  matters  specified  in  s 110A(4)(a) of the Act regarding the reasons an applicant has been unable to exercise their existing guardianship responsibilities and the resulting effect on the welfare of the child or young person;

(b)Under the Oranga Tamariki Act itself when there is no existing guardianship order under the Care of Children Act.

[12]   Counsel agree the grandparents’ application falls for consideration under the second pathway, if that pathway is available. If that pathway is not available, the only option for the grandparents to be appointed special guardians would be for the grandparents first to be appointed as guardians under the Care of Children Act and then to apply under s 110A of the Act to replace that order. That would be a curious result.

[13]It is common ground that:

(a)As members of Oliver’s whanau, the grandparents are able,  under     s 126(e) of the Act, to apply under s 125 to vary the existing additional guardianship order made under s 110;

(b)The application under s 125 to vary the existing additional guardianship order is properly  made  because  the  existing  order  is,  in  terms  of s 125(1)(g), a guardianship order made under s110;

(c)Section 127 sets out the Court’s powers upon the hearing of an application under s 125 to vary a guardianship order, which include powers to:

(i)Vary the order under s 127(1)(a) to remove the Chief Executive as an additional guardian of Oliver;

(ii)Make any other order referred to in s 83(1), whether or not the Court  exercises  the  power  to  vary  under  s 127(1)(a)  (see  s 127(1)(ca));

(d)Section 83(1)(h) empowers the Court to make an order under s 110(2) appointing the grandparents as additional guardians of Oliver.

Point of divergence

[14]   Where counsel diverge is whether the above provisions, in combination with s 110(4) and s 113A(1), give the Court the power also to appoint the grandparents as special guardians. The divergence flows from the fact s 83(1) does not specifically provide that a Court may make an order appointing a special guardian under s 113A.

[15]   Mr Jefferson endorses the Family Court conclusion that the absence of a specific reference to s 113A in s 83(1) means the Court cannot appoint a person as a special guardian on an application under s 125. Counsel for the Chief Executive and the grandparents disagree.

Analysis of ss 110(4) and 113A

[16]Section 110 provides:

110     Guardianship orders

(1)Where the court makes a declaration under section 67 in relation to any child or young person, or on an application referred to in section 110A, it may make an order appointing any of the following persons to be a guardian of the child or young person:

(a)…

…

(e)       any other person.

(2)A guardian appointed under subsection (1) must be appointed as—

(a)the sole guardian of the child or young person; or

(b)a guardian of the child or young person in addition to any other guardian.

(3)       …

(4)If a person who is appointed as a sole or additional guardian of a child or young person under this section is a natural person, the court may also make an order under section 113A appointing the person as a special guardian of the child or young person (including when the order under this section is made at a hearing under section 127).

[17]Section 113A(1) provides:

113     A Special guardianship orders

(1)The court may make an order under this section appointing a person referred to in section 110(4) as a special guardian of a child or young person only if—

(a)the appointment is made for the purpose of providing the child or young person with a long-term, safe, nurturing, stable, and secure environment that enhances their interests; and

(b)either—

(i)the child or young person has no other guardian; or

(ii)the special guardian either replaces, or is additional to, an existing guardian of the child or young person.

[18]   The Family Court said the power to appoint a special guardian resides in       s 113A and not in s 102(4) and, since s 113A is not referred to in s 83(1), the consequence is the Court has no jurisdiction to appoint the grandparents as special guardians when considering an application under s 125 and exercising its powers under s 127.

[19]    I consider the Family Court has misunderstood the interaction of ss 127(1), 83(1), 110(2) and 110(4). It is not necessary for there to be any reference to s113A in s 83(1) for the Court, when exercising its powers under s 127, to have the power to appoint as special guardian a person who is appointed a guardian or additional guardian under s 110(2).

[20]I consider the legislation was designed to work, and does work, as follows:

(a)On the hearing of an application made under s 125, the Court may make any order referred to in s 83(1);3

(b)That includes an order appointing a person as a guardian or additional guardian under s 110(2);4

(c)If a person  is  appointed  a  guardian  or  additional  guardian  under  s 110(2), the Court may also appoint that person a special guardian under s 113A(1);5

(d)Section 113A(1) provides the power to appoint a special guardian provided it is for the purposes set out in s 113A(1)(a) and in the circumstances set out in s 113A(1)b).

[21]   Section 110(4) does not provide a separate power of appointment but it does provide the link between s 83(1), s 110(2) and s 113A. When a Court is appointing a guardian or additional guardian under s 110(2) as provided for in s 83(1)(h) it has, under s 110(4), the authority also to appoint a special guardian under s 113A. It is not necessary, therefore, and would be superfluous for s 83(1) to refer to s 113A.

[22]   Section 110(4) confirms this interpretation by its parenthetical statement “(including when the order under this section is made at a hearing under section 127)”. Those words would have no meaning if the Court was precluded, at a hearing under  s 127, from appointing a guardian or additional guardian a special guardian.

Policy considerations

[23]   The policy rationale for the above interpretation is apparent: the intention is that only persons who are appointed as guardians or additional guardians can be considered for appointment as special guardians. It would not be appropriate, therefore, for s83(1) to make separate reference to the power to appoint special

3      Section 127(1)(a) and (ca).

4      Section 83(1)(h).

5      Section 110(4).

guardians, whether in the context of an application under s 125 or when an initial order is made under s 67 that a child or young person is in need of care or protection.

[24]   Mr Jefferson acknowledged no policy mischief results from this interpretation. Ms Jerebine for the Chief Executive said to hold there is no jurisdiction to appoint a special guardian on an application under s 125 would render invalid the many appointments of guardians as special guardians on applications made under s 125, although that was not a factor in my decision.

Conclusion

[25]   There is jurisdiction under the Oranga Tamariki Act to appoint Oliver’s grandparents as special guardians on an application made under s 125 of the Act if they are appointed additional guardians of Oliver. The requirements to be satisfied for appointment are set out in s113A of the Act.

Referral back to Family Court

[26]   Counsel for the Chief Executive and for the grandparents invited me to appoint the grandparents as additional guardians of Oliver rather than refer the matter back to the Family Court. While that would be expedient, given the time passed since preparation of the plan and report under ss 128 and 186, I am referring the matter back to the Family Court in case updating is required to make the assessment required by  s 113A(1)(a).

Result

[27]I set aside the decision of the Family Court.

[28]   I refer back to the Family Court for decision the application by the first respondents for appointment as special guardians of Oliver Prince.

G J van Bohemen J