DE v Chief Executive of the Ministry of Social Development
[2007] NZCA 453
•18 October 2007
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPELLANTS AND THE BABY
IN THE COURT OF APPEAL OF NEW ZEALAND
CA358/07 [2007] NZCA 453
BETWEEN DE
First Appellant
AND JE
Second Appellant
AND LW
Third Appellant
AND CW
Fourth Appellant
ANDCHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 29 August 2007
Court: Glazebrook, Wild and Fogarty JJ
Counsel:Appellants in person (assisted by H Smith as McKenzie Friend) V C Sim for Respondent
Judgment: 18 October 2007 at 4pm
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe respondent is to pay the appellants’ reasonable and usual disbursements in relation to the hearing in the High Court and this appeal.
CThere is an order prohibiting the publication of the names or identifying particulars of the appellants and the baby.
DE AND ORS V CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT CA CA358/07 18
October 2007
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No
A baby taken into the custody of the Chief Executive [1]
Is there power to make an ex parte order under s 78 of the
CYPF Act? [10]
Should a family group conference have been convened? [11]
Does the scheme of the Act require applications to be made
on notice? [13] Should the procedures in ss 39 or 40 have been used? [24] Did s 104 of the CYPF Act authorise the removal of Baby N? [28] Conclusion on power to make ex parte orders under s 78 [31]
Is the existence of the Family Court order conclusive on a
habeas corpus application? [32]
Were there lawful grounds for proceeding on an ex parte basis? [41] The family’s submissions [41] What material should be provided in support of an ex parte
s 78 application? [43] The first affidavit [51] The second affidavit [61] Assessment of the adequacy of information provided [71] JUSTIFICATION FOR APPLYING EX PARTE [72] INFORMATION ABOUT NOTIFIER [79] CONSIDERATION OF OTHER OPTIONS [81] INCOMPLETE INFORMATION [85] MISLEADING INFORMATION [88]
Should these inadequacies have led to the writ of habeas
corpus being issued? [90]
What is the effect of the full hearing in the Family Court? [93]
What procedural steps should occur if an order is made
ex parte? [98]
Can this Court deal with the other concerns of the family in
relation to the s 78 order? [107]
Result and costs [111]
A baby taken into the custody of the Chief Executive
[1] Baby N is the much-loved daughter of Mr and Mrs E. At the time of Baby N’s birth in April 2007 Mr and Mrs E were living with Baby N’s maternal grandparents, Mr and Mrs W, and this arrangement continued after the birth. On Friday 8 June 2007, at approximately 4.30pm, two police officers and two social workers arrived at the family’s home and took Baby N into the custody of the Chief Executive of the Ministry of Social Development. Baby N was about eight weeks old at the time and, as we understand, breastfed.
[2] The police and the social workers were acting under the authority of an order made ex parte under s 78 of the Children, Young Persons and Their Families Act
1989 (the CYPF Act). This placed Baby N in the custody of the Chief Executive until the determination of proceedings for a declaration that Baby N is in need of care and protection under s 67 of the CYPF Act.
[3] The Judge making the order, Judge McAloon, ordered that counsel for Baby N was to be appointed and a family group conference held but set no timeframes within which those things were to occur. The Judge stipulated that the proceedings be set down for review after the family group conference but that the matter was in any event to be placed on the Judge’s list on 30 July 2007.
[4] The s 78 order was made on the application of Child Youth and Family (CYF), a service of the Ministry of Social Development. Mr and Mrs E had had no contact with CYF since May 2007 when they were told that CYF had closed its file in their regard. We understand that CYF had closed its file on the basis that a number of private agencies would be available to support the family.
[5] The application for the s 78 order was made on the morning of 8 June 2007 without notice to Mr and Mrs E. CYF, in applying for the s 78 order, was acting on information received some eight days before, on 1 June 2007, from a non-statutory social worker and counsellor, Ms A, who had been working with Mrs E for a number of years. Ms A had the confidence of the family and was Baby N’s godmother.
Ms A’s name was not disclosed in the application but her role became known to the family shortly afterwards.
[6] The family applied to the High Court for a writ of habeas corpus in relation to Baby N on 22 June 2007. In his judgment of 25 June 2007 (DE v D HC HAM CIV2007-419-844), Asher J expressed some concerns about the procedure followed by CYF but refused to issue the writ, holding that the Family Court order of 8 June
2007 was valid and that Baby N’s detention was lawful. He transferred the file to the Family Court under s 13(2) of the Habeas Corpus Act 2001.
[7] After the hearing in the High Court and at Asher J’s instigation, the Family Court heard an application by the family to set aside the s 78 order. That application was refused by Judge Cocurullo on 27 June 2007 (HAM FAM 2007-075-143). On
6 August 2007, Baby N was, against the wishes of the family, moved from foster parents, who lived in the same town as the family, to the custody of her paternal grandmother in another town over 100 km away. A family group conference was finally held on 20 July 2007 but failed to reach agreement.
[8] We understand from a letter from Mr and Mrs W and Mrs E of 17 September
2007 and from their further submissions of 26 September that Mr and Mrs E have now separated. Mr E has moved to his mother’s house. We also understand that a five day hearing of the CYF application for a declaration under s 67 of the CYPF Act was set down from 1 October 2007 in the Family Court. Mr E has informed us in a letter of 28 September 2007 that he no longer wishes to pursue this appeal and that he will be supporting the making of a s 67 declaration in the Family Court.
[9] This judgment concerns Mr and Mrs W and Mrs E’s appeal against Asher J’s decision of 25 June 2007. The issues arising are:
(a) Is there power to make an ex parte order under s 78 of the CYPF Act?
(b)If so, is the existence of the Family Court order conclusive on a habeas corpus application?
(c) If the existence of the order is not conclusive, were there lawful grounds in this case for proceeding on an ex parte basis?
(d)Were there inadequacies in the material provided that should have led to the writ being issued in the High Court?
(e) What is the effect of the full hearing in the Family Court?
(f) What procedural steps should occur when an order is made ex parte? (g) Can this Court deal with the other concerns of the family in relation to
the s 78 order?
Is there power to make an ex parte order under s 78 of the CYPF Act?
[10] The family submits that the Family Court had no power to make an order under s 78 of the CYPF Act without notice to Mr and Mrs E as the parents of Baby N. They put forward three reasons for this submission. They argue first that a family group conference should have been held. Second, they say that the scheme of the CYPF Act requires applications under s 78 to be made on notice. Third, they say that the procedures under ss 39 or 42 of the CYPF Act should have been followed. We deal with each of these arguments in turn. We then deal with the family’s submission that Asher J was wrong to hold that s 104 of the CYPF Act provided the authority for the police and the social workers to remove Baby N.
Should a Family Group Conference have been convened?
[11] The family’s first submission is that CYF should have undertaken the steps set out at ss 17 - 38 of the CYPF Act in response to the notification from Ms A under s 15 of the Act. These steps start with the investigation of any notification received pursuant to s 15 and lead through to the convening of a family group conference under s 20.
[12] This issue can be quickly dealt with. Section s 70(2) gives the power to apply for a declaration that a child or young person is in need of care and protection under s 67 without having convened a family group conference where an application for a custody order under s 78 is made and the applicant believes that the interests of the child or young person in respect of whom the application is made require that a s 78 custody order be granted as a matter or urgency - see s 70(2)(c)(ii) of the CYPF Act. This means that, as long as there is a belief that a s 78 order must be granted as a matter of urgency, the requirement for a family group conference prior to applying for a s 67 order (and thus, by necessary implication, an interim order under s 78) can be dispensed with.
Does the scheme of the Act require applications to be made on notice?
[13] The family’s next submission is that the scheme of the Act requires applications to be made on notice except where ex parte applications are expressly allowed, such as in s 50 (dealing with medical examination) and s 60 (dealing with the production of documents) and in emergency situations justifying the issuing of a place of safety warrant under s 39, a warrant to remove the child under s 40 or a search without warrant under s 42.
[14] In support of this submission, the family points to the right to the observance of the principles of natural justice guaranteed under s 27(1) of the New Zealand Bill of Rights Act 1990 and to the principles in the CYPF Act itself. They refer in particular to s 5(a) of that Act, which provides that, wherever possible, a child’s family, whanau, hapu, iwi and family group should participate in decision-making with regard to the child and that regard should be had to their views, and to s 5(e), which provides that, wherever possible, the support of the child’s family, whanau, hapu, iwi and family group should be obtained where any powers exercised under the Act are exercised or proposed to be exercised. They also rely on s 8 which provides that, where any person takes any action or makes any decision under the Act that significantly affects any child or young person, the decision maker must ensure that wherever practicable the child and every parent or guardian or caregiver are informed as soon as is practicable of that action or decision and the reasons for it.
[15] The family argues that, given that the scheme of the CYPF Act favours consultation and applications being made on notice, Parliament must have intended that ex parte orders should only be made where expressly provided for and in cases of emergency. The family submits that ss 39, 40 and 42 are the emergency powers in the Act.
[16] The family points out that the powers under ss 39 and 40 are only able to be exercised where there are reasonable grounds for suspecting that a child or young person is suffering, or is likely to suffer, ill-treatment, neglect, deprivation, abuse, or harm. The s 42 powers to search without a warrant and remove a child are only exercisable where the police officer involved believes that it is critically necessary to protect a child or young person from injury or death. By contrast, the s 78 powers can be exercised where the child is in need of care and protection, a lesser standard.
[17] The question of when applications can be made without notice is dealt with in the procedural rules that apply under the CYPF Act. Section 448 of the CYPF Act provides:
448. Rules of procedure –
(1)The Governor-General may, by Order in Council, make rules regulating the practice and procedure of Youth Courts under this Act.
(2) Rules may be made regulating the practice and procedure of Courts
(other than Youth Courts) under this Act, -
(a) in the case of the High Court, under section 51C of the
Judicature Act 1908:
(b) in the case of District Courts, under section 122 of the District
Courts Act 1947:
(c) in the case of Family Courts, under section 16A of the Family
Courts Act 1980.
[18] The Family Court Rules made under s 16A of the Family Courts Act (called the Rules in this judgment) allow ex parte applications where they are not expressly prohibited by the particular piece of family-related legislation at issue. Rule 220 of the Family Court Rules provides as follows:
220. Applications that may be made without notice
(1) An application need not be made on notice if the family law Act or District Courts Rule under which it is made provides, or any other of these rules provide, that the application, or an application of that kind, may be made without notice.
(2) An application need not be made on notice if subclause (1) does not apply and the application, or an application of that kind, is not expressly required to be made on notice by the Family Law Act or District Court Rule under which it is made or by any other of these rules and the Court is satisfied that:
(a)The delay that would be caused by making the application on notice would or might entail:
(i) In proceedings under the Children Young Person and 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;
[19] There is nothing in s 78 which expressly prohibits ex parte applications. However, we accept the family’s submission that, if the scheme of the CYPF Act requires s 78 applications to be made on notice, then Rule 220 will not apply as it is subordinate legislation and the statute would prevail.
[20] Because they depart from the fundamental requirements of natural justice, applications ex parte are to be sought and granted only in the special circumstances summarised in Martin v Ryan [1990] 2 NZLR 209 at 226 – 229 (HC). There is also no doubt that the principles of the CYPF Act favour the involvement of parents and caregivers in all decisions relating to a child or young person. It is also true, as submitted by the family, that the CYPF Act favours the convening of family group conferences before any major decisions are taken in relation to any child. However, the issue is not whether or not the CYPF Act favours a consultative process. The question is whether the scheme of the Act requires orders under s 78 to be made on notice.
[21] The family’s submission must be analysed in light of the overriding purpose of the CYPF Act, which is contained in s 6. That section provides that the welfare and interests of the child are the first and paramount consideration. The CYPF Act is thus essentially a child protection statute. Section 6 requires regard to be had to the
principles set out in ss 5 and 13 but these sections are subordinate to s 6 (and s 13 is also subordinate to s 5): In the Matter of the S Children [1994] NZFLR 971 at 979 (FC).
[22] There is no doubt that the ss 39, 40 and 42 powers are designed to be used in emergency situations and can be used where there is no pending substantive application. This does not mean, however, that ex parte orders cannot be made under other sections. Section 78 was placed in the CYPF Act, despite the existence of ss 39 and 42. Its terms contemplate it being used both after and independently of ss 39, 40 or 42: see s 78(2). Given the overriding importance of the welfare of the child, the scheme of the CYPF Act cannot forbid ex parte applications under s 78 no matter how urgent or compelling the circumstances. However, the Rules restrict such applications to cases where the delay caused by making the application on notice would cause 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. These requirements in the Rules align with the child protection purpose of the CYPF Act.
[23] Ex parte orders under the CYPF Act are not limited to orders under ss 39 and
40. Ex parte applications for s 78 orders are expressly allowed under the Rules and are not excluded by the scheme of the CYPF Act. The checks on the exercise of the s 78 power ex parte are those in the Rules and in the terms and conditions that may be made by the Judge who makes the order.
Should the procedures in ss 39 or 40 have been used?
[24] The next issue is whether the alternative procedures in ss 39 and 40 should have been used in this case. The family’s first argument under this head was based on the scheme of the Act. We have dealt with this argument in the previous section.
[25] The family’s next argument is that the powers in ss 39, 40 and 42 are subject to the safeguard in s 45 that the child be brought before the Court not later than the fifth day after they are exercised. That such a safeguard is not contained in relation
to s 78 points, in the family’s submission, towards notice being required before s 78 powers can be exercised.
[26] Asher J considered this to be explicable by the fact that ss 39 or 40 warrants may be issued by a person other than a District Court Judge, and that under s 42 no warrant is required. We agree. There is no need to put in such a protection where the order is made by a Judge. The Judge can and should put in suitable conditions to make sure that the parents or caregivers have the opportunity to be heard at the earliest possible time. (We discuss the measures that should be put in place in this regard below at [98] - [105]). It is also significant that, where ss 39, 40 or 42 apply, there is not necessarily any substantive application before the Court. This is not the case with s 78 orders as those orders will be linked with a s 67 application that remains to be determined.
[27] The family’s final submission under this head is that it is clearly contemplated that a warrant under ss 39 or 40, where required, will precede a s 78 warrant – see s 45(a)(i) and s 46(b). These provisions in our view entitle the court to exercise the s 78 powers after the issue of a warrant pursuant to ss 39 or 40 but do not require that to occur.
Did s 104 of the CYPF Act authorise the removal of Baby N?
[28] The family’s submission that s 104 of the CYPF Act did not give the authority to the police and the social workers to remove Baby N can also be answered shortly. Although s 104 gives the authority to “place” rather than “remove” a child when a s 67 declaration is made accompanied by a custody order under s 101, it clearly envisages removal will be an element of “placing”.
[29] Section 104(3)(a) provides that a person authorised by the section may use “such force as is reasonably necessary” for the purposes of placing, and s 104(3)(c) provides that the powers under s 105 (to enter and search premises for the purpose of removing a child) may be exercised.
[30] Section 80 provides that s 104 applies with all necessary modifications to a custody order under s 78 as if it were an order made under s 101. Therefore, as long as the s 78 order was legitimate, the authority to remove Baby N clearly existed.
Conclusion on power to make ex parte orders under s 78
[31] For the above reasons, we hold that there is power to make an ex parte interim custody order under s 78, provided that the proper procedural requirements are followed and the threshold set out in the Family Court Rules is met: see [17] and [22] above. We discuss the procedural requirements for ex parte applications below at [43] - [49] but first we turn to the question of whether the Court can legitimately enquire into the validity of an order of the Family Court on a habeas corpus application.
Is the existence of the Family Court order conclusive on a habeas corpus application?
[32] The Chief Executive submits that, as there is power to make an ex parte order under s 78 of the CYPF Act, the production of the copy of the interim custody order made by the Family Court on 8 June 2007 provides a conclusive answer to the habeas corpus application. In the Chief Executive’s submission, the Family Court order is valid unless and until it is set aside. The order establishes the lawfulness of the “detention” of the child. In making this submission, the Chief Executive relies on the comments of this Court in F v The Chief Executive of the Department of Child Youth and Family Service CA130/05 20 July 2005 at [15] - [16].
[33] Section 14(2) of the Habeas Corpus Act requires the Judge hearing an application for a writ of habeas corpus to enquire into the “matters of fact and law claimed to justify the detention”. It is expressly provided that the Judge “is not confined in that enquiry to the correction of jurisdictional error”. The only limitation in s 14(2) is that the Judge cannot call into question a person’s conviction for an offence or a ruling as to bail (ss 14(2)(a) and (b)).
[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].
[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.
[37] The Chief Executive relied on F v Chief Executive (2005) in support of the submission that the existence of the order of the Family Court is a conclusive answer to the application by the family for a writ of habeas corpus. That case is not authority for that proposition. It is true that the Court commented that the order of the Family Court in that case was valid unless and until it was held to be invalid. The Court in making that statement, however, was not intending to lay down a general proposition. The statement was made in the context of that case where a hearing to consider the issues relating to the child was scheduled in the Family Court the following week, obviously a more suitable forum for the resolution of custody issues. The comment was also made in the context of a case where there were clear, immediate and obvious concerns about the welfare of the child, set out at [3] of the decision.
[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] NZFLR 613 at [14]. This is clearly in line with the authorities discussed above at [34] - [35].
[39] For the above reasons, we reject the Chief Executive’s submission that the existence of the Family Court order is a conclusive answer to the family’s application. Where the interests of justice require, the Court will always have the power to inquire into the legality of such an order, provided the issues are apposite for determination within the parameters of a habeas corpus hearing.
[40] On this basis, we now turn to examine the validity of the interim custody order in this case.
Were there lawful grounds for proceeding on an ex parte basis?
The family’s submissions
[41] The family submits that the material provided to the Family Court did not justify the making of the s 78 order and certainly did not justify it being made without notice.
[42] We examine that submission under the following headings:
(a)The material that should be provided in support of an ex parte s 78 application;
(b) The affidavit in support filed in this case;
(c) The further material placed before Asher J; and
(d) Assessment of the adequacy of the material provided.
What material should be provided in support of an ex parte s 78 application?
[43] When making an application for an ex parte order under s 78, there is a duty to provide all relevant information, including that which might point away from the application being granted: United Peoples’ Organisation (Worldwide) Inc v Rakino Farms Ltd (No 1) [1964] NZLR 737 at 738 and McGechan on Procedure HR240 and HR259.03. In the affidavit accompanying the application, all material relevant to whether or not the requirements for a s 78 order are met should be provided as well as an explanation as to why the order should be granted ex parte and, in particular, whether or not the requirements in the Rules are met.
[44] It must be remembered that the Rules give authority to act ex parte where the requirements set out in them are met. They do not require the Court to proceed ex parte in those situations. The Court still has to decide whether the circumstances are such that it is necessary to proceed on an ex parte basis. Given the importance in our system of justice of natural justice and the scheme of the CYPF Act, such a decision
should only be taken, even if the requirements in the Rules are met, 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 – see Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213 (Ch).
[45] This means that the applicant must explain in any affidavit accompanying the application why an urgent hearing on notice or a hearing on a Pickwick basis would not suffice to address the concerns. We consider too that any delay on the part of the applicant in making the application must be explained. We also consider that any applicant for an ex parte s 78 order should indicate whether there was any consideration of using the ss 39 or 40 powers and why they were not used. Although the test for making an ex parte order under s 78, even with the additional criteria in the Rules, is arguably less stringent than that in ss 39 and 40, it would be unusual to make an ex parte order under s 78 in a case thought unsuitable for a ss 39 or 40 warrant, except where an application on notice might trigger a particular risk to the child.
[46] Further, where an application is made which relies on information provided by a notifier, full information about that notifier should be given, including in particular the likely reliability of the information received and also full details of any investigation made by CYF to verify the information provided. We consider that the guidelines at R v Williams (2007) 23 CRNZ 1 at [224] (CA) would, with necessary modification, set out the type of information that should be provided. If there is concern about confidentiality, an application for suppression of any details given that might lead to the identification of the notifier should be made.
[47] Finally, we consider that the availability and efficacy of any alternative method of protection for the child should be disclosed and assessed in any application under s 78, particularly where the application is made ex parte. Section 73 provides that the Court is not to make a declaration under s 67 unless satisfied that the child’s or young person’s need for care or protection cannot be met by other means. It follows, in our view, that the same must apply to any application for an order under s 78 pending consideration of the application for a s 67 declaration.
[48] In addition, even if a s 67 declaration is made, there is a hierarchy of orders that can then be made. These range from a discharge from the proceedings without further order under s 83(a), through to a custody order under s 101 or a guardianship order under s 110. In between, there are provisions for ordering counselling for the child or the parents under s 86(c), a services order under s 86, requiring services and assistance to be provided to the family for a specified period, a restraining order under s 87, or a support order under s 91, which is an order directing any person or organisation to provide services and assistance to a parent, guardian, or caregiver, or to the child or young person.
[49] The scheme of these provisions suggests that the least intrusive order that meets the care and protection needs of the child should be chosen when a s 67 declaration is made. This is also implicit in the principles and purpose of the Act (ss 5 and 13) which emphasise the importance of maintaining and supporting family unity. We consider that the scheme of the Act suggests that the same principles apply to s 78 orders. As Judge Adams has noted, “ [i]t is a serious step to break up a family, even for a temporary period of time, by the making of a custody order under section 78 [and] although such orders are made frequently…they are never made lightly”: D-GSW v K CYPF048/172-179/98 23 September 1998 (FC). There is provision under ss 86A, 88 and 92 for interim orders to be made. Any application for an interim order under s 78 should, in our view, explain why another interim order, such as an interim service, restraining or support order, would not serve adequately to protect the child.
[50] In light of these standards, we now turn to examine the application in the present case.
The first affidavit
[51] The application for a s 67 declaration and the s 78 order was accompanied by an affidavit sworn by a social worker (the first affidavit). In that affidavit, the social worker deposed that both parents had been known to CYF throughout their own childhoods. With regard to Mr E, there had been concerns about poor hygiene, lack of food and violent behaviour on his part as well as on the part of his father who was
his caregiver at the time. This led to Mr E being transferred to his mother’s care. At the time of the transfer, testing revealed Mr E to have an IQ of below 70.
[52] With regard to Mrs E, the social worker deposed that she had been known to CYF as a child because of poor and unhygienic home conditions and the difficulty she had in controlling her anger. The social worker deposed that Mrs E has an intellectual disability but no specifics or grounds for that belief were given.
[53] The social worker noted that there had been concern before Baby N’s birth in April 2007 about the intellectual disability of both parents, the father’s anger management and the poor relationship between Mrs E and her mother, Mrs W. The family agreed to allow “Strengthening Families” to become involved to support the family following the birth of the baby. When Baby N was born, a referral was made to a residential parenting programme for couples but the parents did not wish to attend, preferring to remain with the maternal grandparents. It was noted that both parents are unemployed.
[54] The affidavit then went on to say that, in May 2007, CYF closed the case on the understanding that the Strengthening Families community services would monitor the situation and contact CYF if they identified care and protection concerns. Mr and Mrs E did not want CYF to continue its involvement.
[55] The affidavit said that, on 1 June 2007, CYF received a notification expressing concerns regarding the ability of the parents to understand and provide for the needs of Baby N. The social worker deposed that, “during the investigation” it was found that community agencies shared a number of concerns for the care and protection of Baby N. These included poor hygiene, unhygienic home conditions, the father constantly smoking in the bedroom when the mother was breastfeeding and the baby sleeping in the parents’ bed, despite a cot having been provided.
[56] Two incidents regarding the care of Baby N were then described in the following terms:
• It is reported that [Baby N] had fallen out of bed when she was three weeks old. Medical attention was not sought.
• [Baby N] has been crying for most of the weekend and was taken to the Doctor on the following Monday. The family believed that the crying was due to teething, however when her nappy was taken off at the doctors it was clear [Baby N] had a severe nappy rash.
[57] The following specific concerns about the adults in the household were then set out:
• The relationship between the adult family members is often volatile and very loud. Professionals have observed verbal altercations between the adults whilst [Baby N] is being held.
• A recent disability assessment of [the father] completed by Disability Living, has stated that due to his unpredictable and aggressive behaviour he would need one to one supervision if he were to engage with any programme they offer.
• [The father] is said to be staying up all night playing on the computer and sleeping all day. This is consistent to his behaviour prior to [Baby N’s] birth.
• Both parents’ intellectual functioning is considered to impair their ability to adequately care for and protect [Baby N] from harm.
[58] The social worker stated that Baby N was just eight weeks old (at the time of the affidavit) and fully reliant on adults to meet all her needs. She then stated her belief that, as CYF and other professional agencies had endeavoured to support the family, with little success, the risk of significant harm was unmanageable should Baby N remain in the care of her parents. She said that the parents had previously refused to attend any residential programme but she hoped that, should the Court see fit to grant an interim custody order, that path could be further explored.
[59] The social worker then expressed her belief that Baby N was likely to be harmed if left in the care of her parents. She stated that CYF was seeking a declaration that Baby N was a child in need of care and protection on the grounds set out in s 14(1)(a), (b) and (f) of the CYPF Act. CYF also sought a without notice s 78 interim custody order pending determination of the proceedings. She stated her belief that, if an order was sought on notice, Mr and Mrs E would flee with the child, saying that “[t]his view has been expressed by the parents to professionals previously.”
[60] The affidavit stated that counsel for the child had not yet been appointed. It also disclosed that a family group conference had not been held in respect of the s 67 application and that there had been no medical examination of the child under s 50 or s 53 of the Act.
The second affidavit
[61] Asher J had further information before him in the form of an affidavit filed by the same social worker in opposition to the application for habeas corpus (the second affidavit). In that affidavit, the social worker said that she had been provided with information by the notifier, Ms A, who had been Mrs E’s youth counsellor for the five years before Baby N’s birth. She said that the information she had received included the learning difficulties of both Mr and Mrs E, the family relationship difficulties, the father’s anger management issues and the mother’s lack of understanding of the needs of the child.
[62] The social worker disclosed in the affidavit that the last involvement she had had with the family was on 4 May 2007. She describes a visit to the family home which gave rise to significant concerns. The bedroom where Mr and Mrs E and Baby N slept was extremely unhygienic with soiled nappies on the floor around the bedding, dirty and clean clothes mixed together, and full ashtrays and general household rubbish scattered about the room. The social worker says that she physically showed them how to clean the room.
[63] At that point, she did not take any statutory steps in relation to the parents’ care of the child as Mr and Mrs E agreed to work with community support agencies to look after Baby N and maintain hygiene within the household. As she was satisfied that those other agencies would support the family and monitor the situation, CYF closed its file in respect of involvement with the family. The social worker said that this was consistent with CYF’s philosophy of minimising its intervention with families.
[64] The social worker deposed that she had ascertained that Ms A had visited the family home daily for the two weeks before the notification on 1 June 2007, and on a
regular basis from 4 May until about mid-May 2007. Ms A would spend about four hours with the family on those occasions.
[65] Of the notification itself, the social worker said that the concerns relayed by Ms A were not of such a nature that CYF felt that Baby N was in immediate danger such that an application for a place of safety warrant was justified. Instead, the case was identified by CYF as one requiring an application within a seven day time period for an interim custody order (under s 78) and a declaration (under s 67) that Baby N was in need of care and protection.
[66] She explained that CYF’s position at the time of applying for the s 78 order was that the series of incidents and behaviour described by Ms A, taken cumulatively, established the grounds for these applications. She noted that, while the allegation of Baby N falling from the bed was disconcerting as a three week old would have no independent means of moving, she did take into account that the incident was five weeks old when brought to her notice and had not, to her knowledge, been repeated.
[67] The social worker then said that her concerns were heightened as a result of investigations undertaken after 1 June 2007 to ascertain the actual involvement of support groups. Plunket and Parents as First Teachers had each visited only twice, and Disability Services for Living had not completed the assessment they had committed to completing in February that year. This, however, appeared to be a comment that the support groups had not visited rather than a criticism of the parents not co-operating with visits by those services.
[68] It was disclosed that the file had been discussed by CYF members on 2 and
5 June 2007 (either side of a long holiday weekend). Possible placements were investigated, including with other family members, but CYF was unable to identify any suitable family member to care for Baby N in that timeframe.
[69] The social worker said that Ms A went to the house every day between 1 and
8 June 2007 and reported back that none of her concerns were diminished. (We note at this point that the family says that there were no visits from Ms A or anyone else
in the period from 1 – 8 June). The social worker says that Ms A provided CYF with further information in that period which fortified the social worker’s concerns. Baby N had been taken to hospital over the long weekend because of an apparent choking incident when breastfeeding. The difficulty appeared to be a positional one in breastfeeding which resulted in Baby N struggling for breath.
[70] The social worker deposed that the decision to apply without notice is not entered into lightly. She said that part of the reason for making the application ex parte was Mrs E’s indication that she would run away with Baby N if CYF intervened. This had been said both to her (although she does not say when) and to Ms A as late as Wednesday 6 June 2007. The social worker says that the other reason the application was made ex parte was that an on notice application would have led to a delay of several weeks at the least before a Court hearing could be arranged and, in the meantime, Baby N would have remained with the parents in a situation where she was at risk of being harmed.
Assessment of the adequacy of information provided
[71] The ex parte application in this case was of poor quality and did not reach the expected standards. The first affidavit did not address in any proper way why there was a need to act without notice and why, in the opinion of CYF, the test in the Rules in that regard was met. The affidavit also did not establish the reliability of the notifier. Nor did it attempt to explain why a less intrusive solution could not be found for Baby N, particularly as she was being breastfed. The second affidavit provided more information but even that was arguably inadequate to justify an ex parte application. In addition, much of the information in the first affidavit as to the circumstances of the family was incomplete and, at times, misleading.
JUSTIFICATION FOR APPLYING EX PARTE
[72] We have held that there is power to apply for a s 78 order ex parte, but that any affidavit accompanying an application made without notice must explicitly deal with why it is alleged that the criteria for applying without notice have been met.
[73] The reason CYF gave in the first affidavit for using the ex parte procedure was the concern that the parents would flee with Baby N. While this could well have provided the necessary justification for acting without notice, no details were given in the affidavit of the content and timing of the remarks by the parents that they would flee if CYF tried to take Baby N away. Nor is it clear from the first affidavit to whom the remarks were made or how serious the threat was. Neither is there an assessment of the ability of the parents, given their supposed intellectual disabilities, to abscond (particularly without detection). Nor is there a description of the likely risk to the safety of Baby N if the threat was carried out. In the second affidavit, some further detail was given of the alleged remarks and the timing of these but, even in that affidavit, the information appears to us to have been far from complete. (We note that Asher J expressed similar concerns at [25] of his judgment).
[74] A further justification for acting without notice was put forward in the second affidavit. In that affidavit, the social worker said that there was a concern that acting on notice would take some weeks and this would place Baby N at unacceptable risk. There was still no attempt to assess that risk in terms of the test set out in the Rules.
[75] In this case, the concerns expressed in the first affidavit were not, on the whole, new concerns that had arisen since CYF closed its file in May. This might suggest that there was no urgent need to act. We acknowledge that there was a new concern raised in the second affidavit. It recorded that Baby N had been taken to hospital following a choking incident over the long weekend of 2 – 4 June – see at [69]. In our view, this could equally have been taken as a positive sign that the family was careful to check out any worries about Baby N and might have been seen as alleviating any immediate concerns about the safety of Baby N in the short term.
[76] In addition, there had been a delay of some eight days between the receipt of the information from the notifier and the application under s 78. Both the reason why it was now thought vital to act with urgency, despite there being few new concerns since closing the file in May, and the delay between receiving the notification and the application should have been fully explained in the first affidavit.
[77] On the whole too, the concerns expressed in the first affidavit related to medium term harm (hygiene/smoking) rather than immediate danger to Baby N’s safety. Any possible harm revealed through the affidavits was through neglect and lack of understanding, rather than intentional harm. It should have been explained in the first affidavit why any concern about short term risk could not have been managed with an application for the matter to be heard on notice with urgency. It is our understanding that the Family Court considers it important to accommodate such requests if the best interests of the child require urgency. In this case, because of the pattern of sitting of the Family Court, urgency might have been difficult to accommodate in the town where the family lived but it could have been accommodated in another centre.
[78] Finally we note that, in the second affidavit, the social worker acknowledged that there were insufficient grounds of concern to apply for a place of safety warrant and that a delay of one week had been considered acceptable after receiving the notification. As we noted above at [76], this should have been acknowledged in the first affidavit.
INFORMATION ABOUT NOTIFIER
[79] There is no indication in the first affidavit as to the source of the notification on 1 June 2007, what grounds there were for considering that the notifier was reliable and no description of the level of contact that the notifier had had with the family. All of this information should have been provided – see at [46].
[80] We understand that CYF did not wish the parents to know who had notified them because it thought that Ms A could still maintain a relationship with the family, a hope described Judge Cocurullo in his judgment of 27 June 2007 as being “respectfully a triumph of optimism over commonsense” – at [15] of his judgment. However, this should not have prevented enough information being given (accompanied by an application for suppression if necessary) to enable the Judge to assess the reliability of the information that had been provided.
[81] In some cases, the risk to the child in its current environment is so great that it will be obvious that any lesser solution than removing the child is not possible. In the circumstances of this case, however, where there did not appear to be any issue of intentional harm, we would have expected a full explanation as to why other less intrusive intervention was not suitable – see at [47] - [49]. This would also have been in line with CYF’s stated policy of minimal intrusion.
[82] There was nothing in the affidavit to suggest that there had been any consideration of any other solution short of removing Baby N, despite the fact that she was being breastfed. Some of the concerns expressed, particularly about hygiene, would seem to have been particularly suited to an interim services or support order being made. Even if it was thought essential that Baby N be removed from the maternal grandparents’ house, there seems to have been no investigation of any possible placement of Baby N that gave Mrs E the choice to go with the baby and maintain breastfeeding.
[83] The Ministry of Health recommends that infants be fed on breast milk from birth to between four and six months – see generally September 2007). From the point of view of Baby N, she was abruptly weaned without even the reassurance of being with people with whom she was familiar who could comfort her at such a time. Further, we are not aware of Mrs E being offered any help to cope with the effects of the abrupt cessation of breastfeeding.
[84] In our view, the fact that Baby N was being breastfed was not properly highlighted for the Judge in the first affidavit. If that had been done, placement options accommodating the continuation of breastfeeding could have been properly explored.
[85] In addition to these key omissions, the CYF affidavits failed to give sufficient detail of all relevant information. The most immediate and serious allegation in the affidavit was as to Mr E’s unpredictable, aggressive and violent behaviour. Such behaviour is obviously of major concern where a baby or child is involved. However, there are no details given of the form Mr E’s behaviour takes, its frequency, to whom it is directed, what triggers it and the date of the latest manifestation of such behaviour. There is no indication that this violent behaviour has extended to assaults or threats of assault on any members of his current household, including Baby N. Indeed, the affidavit only refers to verbal altercations between family members when the difficult relationship among the adults in the household are described. (We note as an aside that Mr E is now living with his mother with whom CYF has placed Baby N.)
[86] It is also stated in the first affidavit that Mrs E has an intellectual disability. The evidence set out in the first affidavit as to lack of hygiene and the failure to use a cot could have been taken as showing that Mrs E lacked in some respects a current understanding of the needs of Baby N, but it is not explained whether any intellectual disability would preclude her developing a better understanding. Neither was it explained in any detail why the maternal grandparents would not have been able to assist her in this task. Mrs W, in her submissions before us, thought that CYF considered that she and her husband were also intellectually disabled. We did not understand from the affidavit that this was alleged.
[87] The first affidavit also states that Mr and Mrs E had decided not to attend a residential programme but the only residential programme mentioned was one offered just after the birth of the baby. As we understand it, this was before CYF decided that it did not need to take further action because of the community services that had been put in place. There was no indication in the affidavit that there had been any further attempt to place the couple in a residential programme which they had decided not to attend.
[88] The affidavit speaks of an investigation by CYF after the notification. The natural assumption on reading such a statement is that CYF independently investigated the complaints made by the notifier by visiting the family. As we understand it, this was not the case. In our view, CYF should have disclosed that it had not visited after the notification and that it had had nothing to do with the family since May. Details of any investigations actually undertaken should have been given.
[89] In its first affidavit, CYF said that other community agencies shared the concerns outlined by the notifier but no details of the agencies approached were given. It appears from the later affidavit filed in the High Court that part of the problem was that those other agencies had had minimal contact with the family (see at [67]) since CYF closed its file in May and so there must be some doubt as to whether there was a fair basis for the concerns expressed by those agencies. None of this was, however, disclosed in the affidavit accompanying the ex parte application.
Should these inadequacies have led to the writ of habeas corpus being issued?
[90] We have identified serious inadequacies in the material filed in support of the ex parte application. While further information was available to Asher J in the High Court, even that information was still incomplete, particularly in relation to the alleged need to proceed without notice to Baby N’s family. The decision to proceed ex parte and the manner and timing (late on a Friday afternoon) of the execution of the removal of Baby N has caused the family (and, we assume, Baby N) significant and avoidable distress. We are not alone in our concerns as to the procedure followed in this case by CYF. Both Asher J and Judge Cocurullo also pointed to what they saw as unsatisfactory aspects of the procedure followed.
[91] Despite these inadequacies, in light of the principles discussed above (at [33] - [36]), it was certainly open to Asher J to decide that the matter was not suitable for summary determination and therefore to refuse the application for a writ, particularly as he had facilitated an early hearing of the application to set aside the
s 78 application in the Family Court. There were options for the family in this case other than a habeas corpus application. There is provision in the CYPF Act to apply to set aside the s 78 order (s 125(1)(a)) and, with leave, to appeal to the High Court (s 341)(3)). Judicial review was also available. These options would have allowed a fuller determination of the issues than is possible in a habeas corpus application, and, in particular, would have allowed a proper resolution of conflicts of evidence – see, for example, at [107](d) below. The appeal must therefore be dismissed.
[92] On the other hand, we do not think that the family can be criticised for bringing an application for habeas corpus, particularly as there had been no early date set for a further court date at the time the s 78 order was made. (The date set was some seven weeks hence and for mention only). It appears from Judge Cocurullo’s judgment of 27 June 2007 that CYF was not even inclined to arrange a family group conference in the near future. We have identified above serious inadequacies in the affidavit filed in support of the application that were not rectified in the High Court. An argument that such deficiencies rendered the interim order unlawful because of unfairness due to serious procedural defects was certainly not frivolous.
What is the effect of the full hearing?
[93] The Chief Executive submitted that, whatever the merits of the family’s criticisms of the initial decision to proceed without notice, they have since had the opportunity to put their arguments against the making of an interim custody order to the Family Court which has declined to set aside that order. This, in the Chief Executive’s submission, provides a full answer to the application for the writ. We do not strictly need to decide this point, given our conclusion that Asher J was justified in refusing to issue the writ – see at [91]. However, for completeness, we deal with this issue.
[94] It is clear that the validity of the order now rests on the decision made at the full hearing, as opposed to the earlier ex parte order and that this decision must now be considered to be the basis for Baby N’s continuing detention. The family had the opportunity at that hearing to put forward its side of the story and to cross-examine
CYF’s witnesses. Much fuller information was also provided by the witnesses for CYF to justify the s 78 order. In other contexts, a full hearing has been held to “cure” irregularities and unfairness in any initial proceedings: Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 at 435-437 (CA) and Drew v Attorney-General [2002] 1 NZLR 58 at [72] (CA).
[95] After the full hearing, Judge Cocurullo upheld the s 78 order. He found that the case involved a very young baby, a decreasing level of care, difficulties in adult relationships and a lack of insight by Baby N’s parents about her needs. He noted, however, that he was in no way saying that the parents and maternal grandparents intended to harm Baby N and made a positive finding that the family adore and love Baby N. He also said that it was important for the family to know that Baby N’s place ultimately is with her parents. He considered that there should be urgent meetings about a care plan for Baby N which should significantly involve the family.
[96] One of the matters that weighed with Judge Cocurullo was the unwillingness of the family to acknowledge the validity of any of the concerns expressed by CYF. We comment that this unwillingness could have stemmed from the understandable distress felt by the family on the removal of Baby N without notice, the lack of contact with CYF in the period before the removal, the timing of that removal (late on a Friday at a time legal advice was not available), the lack of sufficient subsequent access visits, and the delay in organising a family group conference. As Judge Cocurullo observed, such a conference might have averted much of the heartache involved in the proceedings (at [20] of his judgment).
[97] The full hearing by the Family Court of the application to set aside the s 78 order satisfied the requirements of natural justice and the decision after that full hearing must now be the operative decision justifying the detention. To that extent, the full hearing must be seen as having “cured” the defects in the s 78 interim custody order. This is another reason that the appeal cannot succeed.
What procedural steps should occur if an order is made ex parte?
[98] We have held that there is power to make an order ex parte under s 78, provided the requirements in the Rules are met – see at [31]. We have also set out the required information that should accompany any ex parte application, including all information that would justify the order being made ex parte and an explanation of why no options less intrusive than a s 78 order would adequately protect the child in question – see at [43] - [49].
[99] It is incumbent on a Judge who makes a s 78 order upon an ex parte application, if at all possible, to provide at least brief reasons to explain to parents and caregivers why the order has been made and in particular why the requirements in the Rules for ex parte orders were met. At the least, the court should organise a review hearing date, preferably within the timeframe set out at s 45 of the CYPF Act but in any event within 14 days. The date of this hearing should be notified to the parents or caregivers when they are served with the order.
[100] At that review hearing, the parents or caregivers can advise the court of their views on the order and what they think should happen next. The court would also, at the review hearing, set a timetable for the substantive hearing. This is consistent with Family Court practice in relation to Domestic Violence Orders.
[101] There should also be a short timeframe set within which a family group conference must be convened. We note that Asher J made similar suggestions (at [23] – [24] of his judgment). We also consider it proper for a court making a s 78 order to inquire into any proposed access arrangements and, to the extent practical, ensure that there are generous access rights pending full determination of the merits as long as this is in the best interests of the child.
[102] In addition to appointing counsel for the child, the Court should also consider appointing counsel to assist the Court, in particular to assist in the preparation for the review hearing discussed at [99]. We suggest that this counsel could, if able to be appointed in time, and depending on availability, be asked to accompany the police and social workers enforcing the order to explain the order to the parents or
caregivers and to advise them in a preliminary manner on seeking legal advice and possible options with regard to the order.
[103] The Court should also make sure that the parents or caregivers have a person available at CYF (including, if necessary, after hours) to contact for information about the order and about access arrangements. In addition, where counsel to assist the court is not able to accompany those executing the order, CYF should be required to provide the parents or caregivers with a list of specialist lawyers in the area including, if possible, some who might be available after hours. It was clearly most unsatisfactory in this case to descend on the family so late on a Friday afternoon to remove Baby N, leaving the family with the papers and no access to legal advice.
[104] We note that in domestic violence orders it is the practice of the Family Court to consider the appointment of counsel for the child and/or counsel to assist the Court. The brief where such lawyers are appointed is as follows:
Brief for the lawyer to represent the child/to assist the Court
(a) Consider the allegation of domestic violence made by the applicant and, subject to any order of the Court, negotiate a safe regime whereby appropriate supervised contact is maintained between the child/ren and the party who does not have day to day care, if such is in the interests of the child/ren;
(b) Recommend whether or not the Court should seek any professional reports;
(c) As necessary, liaise with the Court, the parties and other lawyers to ensure -
• That early hearing time is made available;
•That the Court has before it all the available information to enable at least an interim decision to be made;
(d) Report to the Court, with any recommendations as to what enquiries need to be made before unsupervised contact can be contemplated.
[105] If the above steps had been followed in this case, then much of the anguish and consequent procedural imbroglio could well have been avoided.
[106] Finally on this point, we wish to emphasise that we are not to be taken as suggesting that Courts should be reluctant to issue s 78 orders ex parte where the test in the Rules is met and the order is in the best interests of the child.
Can this Court deal with the other concerns of the family in relation to the s 78 order?
[107] The family has a number of other concerns upon which they addressed us orally. For completeness, we set these out below:
(a) The family complains that CYF has ignored Judge Cocurullo’s wishes that Baby N not be moved from the Thames District. They also complain that placement has been made to the paternal grandmother when CYF knows that the parents and the maternal grandparents object strongly to her having custody of Baby N. They also allege that, although Baby N was transferred to the paternal grandmother on
16 August 2007, her medical records had already been altered to the paternal grandmother’s address on 21 July 2007.
(b)Mrs E, after an access visit to the paternal grandmother, has concerns about the alleged unhygienic state of the house where Baby N is now living. She has a particular concern about the presence of a Siberian Husky in the household which, she alleges, is temperamental because of prior abuse. Mrs E says that the dog has bitten her in the past. She also expressed concern that Baby N would have to be placed in a crèche during working hours.
(c) The family is concerned about an alleged conflict of interest at the time the application for the interim custody order under s 78 and the declaration under s 67 were made. The sister of the notifier was for that period the supervisor of the social worker who made the decision to apply to the Court. They also allege a conflict of interest related to Ms A’s attendance at a CYF Resource Panel meeting.
(d)The family complains that there was no visit from CYF in the critical period after the notification on 1 June 2007. Indeed, the family say that there were no visits from the notifier, Ms A, during that period. We understand from the papers that CYF accepts that it did not visit during the critical period but says that it was in touch with Ms A, who was visiting regularly in that period. We are obviously not in a position to resolve this conflict of evidence.
(e) The family also complains about the frequency of access visits once Baby N was removed from their care. There were only three visits arranged before the Family Court hearing which culminated in the
27 June judgment, although after that hearing access improved. The family is, however, concerned that the move to the paternal grandmother’s home in another town will create significant difficulties in this regard.
(f) The final complaint is that, although CYF says that it wishes ultimately to place Baby N back with her parents, there has been no real attempt to work out a means of doing this and certainly there has been no attempt to find a resolution acceptable to the family.
[108] We explained to the family at the hearing that this was not the place to deal with these complaints. This is because this Court can only deal with matters that are properly before it. We explained that what was before us was the very narrow question of the lawfulness of the interim custody order under s 78 of the CYPF Act. The question of whether the interim custody order, even if lawful, was inappropriately made was not before us and we were not able to make any findings in that regard. This is particularly the case as there has been a full hearing of the family’s application to set aside the order in the Family Court. The family would, however, have had the opportunity to air their concerns at the Family Court hearing on the s 67 application (to the extent they are relevant to the determination of that application) or on any appeal from the Family Court decision.
[109] It seemed to us, after the hearing of the appeal, that it was important for the s 67 hearing to be held as soon as possible, particularly given the unfortunate procedural history of this matter. We issued a minute on 30 August 2007 making it clear that the fact that this judgment on the habeas corpus appeal was reserved was no impediment to an early hearing of the s 67 application. We pointed out that the appeal related to the s 78 order and had no relevance to the application for a declaration under s 67. For the avoidance of doubt, nothing in this judgment is to be taken as expressing a view on the proper outcome of the s 67 application.
[110] We also recorded in that minute that the family, in an affidavit filed in this Court, had deposed as to the difficulty they had been experiencing in finding a lawyer able to accept their instructions. (This had led to a delay in filing a valid notice of appeal). In our minute, we noted that, if the difficulty getting legal representation continued, it may be appropriate for the Family Court to consider appointing counsel to assist the Court in relation to the application under s 67 in order to ensure that all available evidence and arguments on behalf of the family were before the Court.
Result and costs
[111] For the above reasons, the appeal is dismissed.
[112] Concerns about the procedure followed by CYF have been expressed by Judge Cocurullo, Asher J and this Court. We have also held that the filing of a habeas corpus application was not unreasonable – see at [92]. In the circumstances, we consider that the Chief Executive should pay the family’s reasonable and usual disbursements in relation to the hearing in the High Court and the appeal. For the avoidance of doubt, this includes Mr Smith’s reasonable travel and accommodation costs and any other reasonable out of pocket expenses incurred by him.
[113] Publication of the names or identifying particulars of the appellants and
Baby N is prohibited.
Solicitors:
Crown Law Office, Wellington
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