Dillon v Chief Executive, Ministry of Social Development

Case

[2017] NZHC 1487

30 June 2017

No judgment structure available for this case.

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

1980.  FOR FURTHER INFORMATION, PLEASE SEE THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

THIS JUDGMENT USES FICTITIOUS NAMES AND MAY BE PUBLISHED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2017-454-14 [2017] NZHC 1487

BETWEEN

MARK DOUGLAS DILLON

Appellant

AND

CHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT

First Respondent

MICHELLE AUDREY WILSON Second Respondent

Hearing: 21 June 2017

Counsel:

E R Bruce for Appellant
R Bowe and H McKenna for First Respondent
R Walker for Second Respondent and Lawyer for the Children

Judgment:

30 June 2017

JUDGMENT OF WILLIAMS J

Introduction

[1]      In a reserved decision issued on 30 November 2016 in the Family Court at Palmerston North, Judge Smith struck out the appellant’s application for access to his six children, all of whom are subject to unopposed custody orders under s 101 of the Children, Young Persons, and their Families Act 1989 (CYPFA) in favour of the

Chief Executive.1

1      Dillon v Chief Executive of the Ministry of Social Development [2016] NZFC 9946.

DILLON v CHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT & ANOR [2017] NZHC 1487 [30 June 2017]

[2]      Mr Dillon now appeals.

Background

[3]      Mr Dillon is the step-father of Gemma Wilson aged 16 years, and Katherine Wilson aged 11 years; and he is the biological father of Charlie Dillon aged 10 years, Michelle Dillon aged six years, Mark Junior Dillon aged three years, and Annabelle Dillon aged two years.

[4]      The  second  defendant,  Michelle  Wilson  is  the  biological  mother  of  all children.

[5]      On 8 May 2015, the Chief Executive sought a declaration that the children were in need of care and protection and a custody order under s 78 CYPFA.  This followed a “report of concern” made the previous day in which Gemma alleged that Mr Dillon had raped her when she was 10.  The custody application was granted and the children were uplifted.  On 14 July 2015, the Family Court declared the children to be in need of care and protection. The order was made by consent.

[6]      The Chief Executive then filed plans in the Family Court pursuant to s 128. The goal of these plans was to see each of the children placed permanently with their current non-kin caregivers.

[7]      On 17 November 2015, the Family Court accepted the Chief Executive’s plans and made new custody orders under s 101 and guardianship orders under s 100(2)(b), all in favour of the Chief Executive.

[8]      The background to these interventions is amply set out in the decision of Judge Smith.  It is necessary for my purposes simply to record that over a seven year period from 2008 until May 2015, the Ministry received 18 reports of concern for the children while they were in the care of Mr Dillon and Ms Wilson.   The reports reflected a home that was in a chaotic and dysfunctional state.

[9]      Mr Dillon and Ms Wilson were reported as abusing alcohol and drugs; the children  were  being  exposed  to  serious  domestic  violence  by  Mr  Dillon  on

Ms Wilson;  there  were  allegations  of  sexual  abuse  on  Gemma  by  a  friend  of Mr Dillon, but with him present and condoning it; there were reports Mr Dillon physically abused Gemma and he and Ms Wilson verbally abused her; there were also reports the children were not attending school and were essentially neglected.

[10]     In  that  seven  year  period,  49  agencies  (both  government  and  NGO)

intervened to assist the family but to no avail.  The Chief Executive’s application on

8 May 2015 was thus the final step in a process that had been building for some time.

[11]     On 21 June 2016 Mr Dillon applied for access in respect of all children but then withdrew the application in respect of Gemma because she made it clear she did not wish to see him.  The Chief Executive then applied under s 206B(a) to have the application for access struck-out.   And in his judgment, Judge Smith granted the application.

[12]     The current position is that Katherine, Charlie, Michelle and Mark Junior are placed together with non-kin caregivers but Annabelle who was removed at aged two months is at a separate placement having been there from the outset.  Gemma is also separately placed, but as I have said Mr Dillon’s application does not relate to her.  It is common ground that the children are safe and secure in their placements, and are doing well.  Ms Wilson now has regular contact with the children but Mr Dillon does not.

The Family Court decision

[13]    In a careful decision of some length, Judge Smith rehearsed the factual background to  the case.    He had  the advantage of multiple affidavits  from  the Ministry’s social worker, Ms Kauika-Stevens; Ms Wilson and Mr Dillon; together with a very full memorandum from Mr Walker as lawyer for child.

[14]     It is unnecessary to attempt to capture the detail of that background but I note by way of example that the Judge sets out a letter written by senior child and family

therapist, Ms Scott, which was annexed to one of Ms Kauika-Stevens’ affidavits.

The letter related to Gemma, Katherine and Charlie.  It provided:2

All three children demonstrated areas of concern as a result of their family home environment in their parents care.   [Gemma Wilson] has reported physical, emotional and sexual abuse by her step father Mr [Mark Dillon] which she reports began around five years to age and continued until she was taken into care.   By age 10 years, this has progressed to full penetration. [Gemma] continues to suffer encopresis and at time enuresis.  Both of these problems are highly correlated with sexual abuse in children.  Much of this was confirmed by her half sister [Katherine] who has also been traumatised by the violence she has witnessed.

[Gemma] reports her step father also touching [Charlie] sexually, although this has not been disclosed by [Charlie] at this stage.   [Charlie] however displays signs of mixed expressive language disorder, and has been referred to a language therapist to work with this, with a view to his returning to therapy if required.  [Charlie] did disclose neglect and physical abuse, and like his sister [Katherine]  reported being very careful to stay under the radar at home and out of harm’s way.   Both [Charlie] and [Katherine] were distressed by the treatment they witnessed [Gemma] undergo.

I have not worked with the children now for several months, yet all children processed trauma throughout the time of their therapy.  They are now in a very stable placement with very support (sic) caregivers and if the caregivers remain concerned as to the effects of access to Mr [Dillon] this needs to be seriously taken into account.   They are at the forefront of the process the children have been going through to regain their self esteem, confidence and sense of safety, and have been more than committed to this task, have taken four siblings alongside their own children.

[15]     Mr Dillon denies both sexual and physical abuse of the children, although he does accept there was verbal abuse.

[16]     The Judge placed particular weight on the views expressed by lawyer for child, Mr Walker.   The Judge described Mr Walker as a senior member of the Palmerston North Family Court bar who was “not prone to exaggeration or overstating his case”.3   He noted that Mr Walker described the children as “the most traumatised  children  that  he  has  ever  worked  with”.4     The  Judge  recorded

Mr Walker’s reflection that Gemma became tearful and visibly sad when asked about her experiences in the Dillon/Wilson home making it clear that she did not consider

the children would be safe with Mr Dillon.

2 At [42].

3 At [59].

4 At [58].

[17]     Mr Walker reported that Charlie and Katherine were more conflicted over this question with both of them fearful of violence and bullying.  But the Judge noted:5

When meeting with [Katherine], Mr Walker noted that she had a pronounced twitch in her left eye which got progressively worse during the discussion until the point where [Katherine] became quite emotionally distraught.   It was evident to Mr Walker that she had worries or concerns that she was either unable or unwilling to put into words.

[18]     Following that meeting, Katherine emailed Mr Walker to say: “Hi, I don’t really feel confident or safe around him.   I don’t want to see him at all (my other dad).”

[19]     The Judge noted also that Mr Walker had been in contact with the caregivers of Katherine, Charlie, Michelle and Mark. And the caregivers reported that Michelle had been having nightmares about Mr Dillon following the interviews.   The caregivers noted:

She had come out at night crying and told us her daddy pulled her mummy’s hair, slammed doors, hit [Charlie], her and [Gemma].   Each nightmare is pretty much a mix of these four things.

[20]     The  Judge  noted  also  that  Michelle  was  exhibiting  signs  that  she  was concerned that her present placement would not continue.6

[21]     The caregivers noted also that Charlie had wet his bed after a “dad-related

nightmare” for the second time.7

[22]     The Judge referred to the relevant provisions in the Act and to the judgment of Judge Callinicos  in  Chief  Executive of  the  Ministry of  Social  Development  v Shandey, accepting that the assessment may take into account what has gone before the filing of the application, and that the requirement in the subsection that the proceedings be “clearly contrary to the welfare and best interests of the child” sets a

high standard for pre-emptive intervention.8    The Judge addressed two questions:

whether there was any prospect of success in Mr Dillon’s application; and if not,

5 At [66].

6 At [69].

7 At [70].

8      Chief Executive of the Ministry of Social Development v Shandey [2015] NZFC 1728, [2015] NZFLR 963 at [22], my emphasis.

whether those prospects could be improved by additional reports from psychologists or others and a hearing.  The Judge concluded the answer was no to both questions. He said:

[96]      On the basis of all the evidence that is before the Court at this time, and  for  matters  over  the  years  since  2008  I  can  see  no  prospect  of Mr [Dillon’s] application for access succeeding.  The views of the children and the report of the lawyer for children are damming (sic).  Irrespective of whether Mr [Dillon] has sexually abused [Gemma], even at the lowest level of the allegation, or not, the trauma that the children have suffered is clear. The mere suggestion that they should see their father has lead to physical responses of soiling, bedwetting, twitches and similar.   They are clearly petrified of Mr [Dillon] and it is inconceivable that he should be placed with them while they have those feelings.

[97]      The suggestion of having a psychologist determine this matter is not appropriate. The decision at the end of the day has to be made by the Family Court, not a psychologist.  Involving a psychologist in itself will require him or her having to meet with the children and explore these matters.  That will cause even further trauma to them.

[98]     I  do  not  consider  that  Mr  [Dillon]  being  cross-examined  will improve his situation.  He has had the opportunity to put before the Court all the evidence that he wishes.  What he has put forward does not in any way ameliorate the Court’s concern for the children.

Appeal grounds

[23]     Six appeal grounds are advanced which may be paraphrased as follows:

(1)the Judge placed too much weight on Ministry evidence that was untested and some of which was mere hearsay;

(2)      the Judge placed insufficient weight on the appellant’s response to the

Ministry’s evidence;

(3)      the  Judge  did  not  grapple  with  supervised  access  as  a  means  of

meeting the Ministry’s concerns;

(4)      the Judge failed to address the principles in s 5 CYPFA;

(5)the Judge was wrong to conclude that Mr Dillon’s access application has no prospects of success; and

(6)the Judge was wrong to conclude that access was clearly contrary to the welfare and best interests of the children.

Appeal standard

[24]     It is common ground that appeals under s 341 of the Act are general appeals by way of rehearing in accordance with Austin Nichols & Co Inc v Stichting Lodestar.9  As the Supreme Court noted in Kacem v Bashir, an assessment of what is in the best interests of the children is a matter of assessment and judgment not discretion.10      Section  206B(a)  requires  me  to  focus  on  that  question,  as  it  did Judge Smith.

[25]     I must therefore make my own assessment of the merits of the case on the basis of the record.   I owe no particular deference to the first instance Court particularly where, as here, that Court did not enjoy the usual advantage of having seen and heard the witnesses give viva voce evidence.

Relevant provisions

[26]     The strike-out provision pursuant to which the Chief Executive’s application

was made is contained in s 206B of CYPFA.  It  provides as follows:

The court may dismiss proceedings before it under Part 2 if it is satisfied—

(a)       that  the  proceedings  relate  to  a  specified  child  and  that  the continuation of the proceedings is, in the particular circumstances, clearly contrary to the welfare and best interests of the child; or

(b)       that the proceedings are frivolous or vexatious or an abuse of the procedure of the court.

[27]     That section is, in its terms, materially identical to s 140 of the Care of

Children Act 2004.11   There are a number of decisions under s 140, but the relatively

9      Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

10     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

11     Section 140 of COCA provides as follows:

The court may dismiss proceedings before it under this Act if it is satisfied—

(a)    that  the  proceedings  relate  to  a  specified  child,  and  that  the  continuation of  the proceedings is, in the particular circumstances, clearly contrary to the welfare and best interests of the child; or

(b)   that the proceedings are frivolous or vexatious or an abuse of the procedure of the

recent enactment of s 206B (it was inserted on 31 March 2014) means there are few decisions in relation to that provision.  It is common ground that decisions relating to the former help to elucidate the meaning of the latter.

[28]     The decision of Judge Callinicos in Chief Executive of the Ministry of Social

Development v Shandey is the most comprehensive assessment of s 206B to date.12

There  the  learned  Judge  also  points  out  that  s 140  and  s 206B  are  materially identical.  And he then refers to various authorities under s 140 in order to assist his appraisal of the s 206B threshold.   The Judge’s comprehensive treatment of those authorities makes it unnecessary for me to address them in any detail.  He makes two points that bear repeating for the purpose of this appeal.

[29]     The first is that with respect to s 206B(a), the proceeding sought to be struck- out must be shown to be “clearly” contrary to the child’s welfare and best interests. The case for doing so must be a “distinct, unambiguous, [and] manifest” one.13    I agree.

[30]     Further the Judge notes in reliance on a decision of this Court in H v F14 that it is likely to be inconsistent with the welfare and best interests of any child to permit proceedings   to   continue   where   they   display   no   prospect   of   success.15

Judge Callinicos continues:16

Conversely, if a preliminary assessment of a proceeding indicated reasonable merit or prospects of success, it would not be in the child’s interests to dismiss them.

[31]     Again, I agree.

[32]     To this I would add the following.  Sections 206B and 140 are unique to the family jurisdiction.   They take the pre-emptive power of the Family Court well beyond the usual standards of the frivolous, vexatious and abuse of process grounds

that are the standard thresholds for the strike-out jurisdiction in the general courts.  I

court.

12     Shandey, above n 8.

13 At [22].

14     H v F HC Christchurch CIV-2010-409-905, 3 September 2010.

15     Shandey above n 8 at [27].

16 At [27].

infer that wider powers than those are necessary because proceedings over children can, in and of themselves, be damaging to, and indeed abusive of, those children. This wider power is necessary because children are uniquely vulnerable to what elsewhere is called “systems abuse”.17   Given that both CYPFA and COCA prioritise the welfare and interests of the child or young person, the Family Court must be vigilant to avoid allowing its own processes to become damaging of that which it must protect, whether intentionally or inadvertently.

[33]     The test then must be whether the proceeding would amount not to an abuse of process, but to an abuse of the children, that is damaging to and therefore “clearly contrary to” the welfare and best interests of the children.  It is of necessity a high test because the price of striking out an application is to remove the important right in the applicant to a full hearing including the ancillary right to test the evidence advanced by his or her opposition.   As the cases say, this right to be heard is important and not lightly to be set to one side.  See for example, G v L in relation to s

140:18

All of the case law recognises that to prevent a parent from pursuing proceedings in the Family Court is a significant step and the threshold for such action is accordingly high.  It is inherent in the wording of s 140, which requires that the continuation of the proceedings must be clearly contrary to the best interests of the children.

[34]     The test is not, and should not, be easily met, but it is important to reiterate that it is a child centred test.  This proposition, inherent to s 206B, is also made plain in s 6 CYPFA which provides that:

… the welfare and interests of the child or young person shall be the first and paramount consideration, having regard to the principles set out in sections 5 and 13.

[35]     This provision makes specific reference to the s 5 principles.  There are two aspects of s 5 of relevance here. The first is that the Court shall be guided by:

(b)       the  principle  that,  wherever  possible,  the  relationship  between  a child or young person and his or her family … should be maintained and strengthened[.]

17     See the use of this term in “Best Practice Guidelines for Lawyer for Child” Family Law Section,

New Zealand Law Society at [5.7].

18     G v L (2007) 26 FRNZ 418 (FC) at [25].

[36]     The second is that the Court must also be guided by:

(d)       the principle that consideration should be given to the wishes of the child or young person, so far as those wishes can reasonably be ascertained ... [.]

[37]     It will thus be incumbent on the Court to obtain the views of the children and to give real weight to those views.

[38]     At the time of the application, s 11 of the Act provided as follows:

Where, in any proceedings under this Act, a child or young person appears before a Family Court or a Youth Court, that  court and the barrister or solicitor representing the child or young person shall, where necessary and appropriate, encourage and assist the child or young person to participate in those proceedings to the degree appropriate to the age and level of maturity of the child or young person.

[39]     On 1 April this year, that section was repealed and replaced with a more comprehensive section placing a duty on the Judge in relation to decisions of the kind contemplated in this appeal, to encourage and assist the child or young person to participate in the proceedings in a manner that is age-appropriate; to give such child or young person reasonable opportunities to freely express their views; and to

take such views into account.19   This matrix of provisions makes it clear that, while

the child’s views may not be decisive, they will always be very important in the

process.

Appellant’s submissions

[40]     First, Ms Bruce submits that the evidence the Judge relied on to substantiate the  allegations  of  sexual  and  physical  abuse  –  affidavits  and  reports  from  the Ministry, and reports from lawyer for the child – was untested.  She submits that in the face of Mr Dillon’s clear denials of sexual and physical violence, a hearing was required so that the evidence could be tested and expert evidence could be obtained. In addition, some of the evidence relied on by the Ministry and then the Judge was hearsay evidence, which, although potentially admissible in the Family Court, has

limitations which ought to have been noted.

19     Section 11(2)(a), (b), and (d).  Note also s 9B(1)(b) Family Court Act 1980 requiring lawyer for the child to ensure views expressed by the child are communicated to the Court.

[41]     The second submission for Mr Dillon is that the Judge placed insufficient weight on the steps he has taken to address the Ministry’s concerns, particularly around violence and alcohol issues.   This evidence countered the Ministry’s submission  that  Mr  Dillon  was  resistant  to  change.    The  Judge  did  refer  to Mr Dillon’s  evidence  in  this  respect,  but  did  not  comment  on  its  strength,  and referred to the social worker’s view that he was skilled at convincing professionals that he has changed when he has not.  That view was based on a complaint made to police, which is untested and had been explained by Mr Dillon.  Further, the Judge was wrong to say that Mr Dillon’s 11 November 2016 affidavit did not add anything new.

[42]     Thirdly,  Ms  Bruce  submits  that  the  Judge  failed  to  address  whether supervised access would address the Ministry’s concerns.   Mr Dillon had in the Family Court proposed that access be supervised, but this was only briefly referred to by the Judge.   A professional supervisor could prevent domestic violence or alcohol abuse occurring during contact, and address any concerns that Mr Dillon could intimidate the child in relation to their disclosures.  She points to a number of cases where supervision has been considered appropriate in the context of allegations of violence.  She also points to the fact that the Ministry allowed Mr Dillon to have supervised access prior to the allegations of sexual abuse (despite its other care and protection concerns) and that the Ministry continues to allow Ms Wilson to have supervised access, despite allegations that she did not take steps to stop the sexual abuse.   And the question of whether supervised access was appropriate could be determined following a hearing.

[43]      Ms Bruce’s fourth submission is that the Judge did not address the principles in  s 5  CYPFA.    Before  him,  she  had  emphasised  the  principles  that  a  child’s relationship with his or her family should be maintained and strengthened, that consideration must be given as to how a decision will affect the stability of a child’s family, and that endeavours should be made to obtain the support of the child’s parents.   Declining to consider these principles was an error of law, because the Court in making any decision under CYPFA must be guided by these principles.

[44]     Fifthly, Ms Bruce submits that the Judge erred in finding that Mr Dillon’s application had no prospects of success.   She argues that the case is clearly distinguishable from  the two  s 206B cases  relied  on  by the Ministry.    In  those proceedings, the appellants sought to discharge custody and additional guardianship orders, and the proceedings had already been the subject of significant Court time. This case, on the other hand, was only about supervised access.  In this case, unlike those cases, Mr Dillon provided clear evidence that he understood the potential consequences for the children, and of steps he had taken to address the care and protection concerns.  He also provided detail around steps which could be taken to ensure his proposal was realistic.

[45]     Finally, Ms Bruce submits that the Judge erred in finding that the application for access was clearly contrary to the welfare and best interests of the children.  The threshold under s 206B is very high, and caution is needed.   There was sufficient ambiguity and doubt in this case to conclude that the application was no “clearly contrary” to the children’s welfare and best interests.

Analysis

[46]     While the six  grounds  advanced  address  different  aspects  of the Judge’s reasoning, I consider it is unnecessary to address each ground separately.   That is because taken together, they essentially argue that the Judge was wrong to conclude the “clearly contrary” test had been met because he failed properly to consider s 5, relied on untested and poor quality evidence, disregarded Mr Dillon’s evidence, and failed to consider the possibility of alternative methods of access such as supervised access.   I mean no disrespect to Mr Bruce’s careful submissions in the approach I have decided to take.

[47]     It is my view that the evidence in this case, even in its untested state, gives a great deal of room for confidence that the test in s 206B(a) is well met. As the Judge found, the impact of this proceeding on the children is demonstrated both by their words and their actions – at least in relation to the three older children.  Each of them has said orally and in writing, and in the case of Katherine, in pictorial form, that

they have no wish to have contact with Mr Dillon.  They accept that they may wish to revisit this when they are older but not now.

[48]     In addition, Judge Smith described in some detail the evidence in relation to physical manifestations of the children’s anxiety about the prospect of having further contact with Mr Dillon.  There is no need for me to repeat it here.  These symptoms (if that is the right term) speak more eloquently than words or pictures can to the re- traumatising effect of the mere suggestion of contact with Mr Dillon.  If ever there was a case in which the continuation of a proceeding could amount to an abuse of the children, this is it.  It frankly does not matter whether the allegations of sexual abuse are true.  Nor does it really matter whether the allegations of violence are true. It is enough that the children’s anxiety is truly felt and plain to see.

[49]     The question to be addressed in Mr Dillon’s application is not whether he physically or sexually abused the children, but whether he should have contact with them.  For reasons related to the children’s own trauma, however generated, contact would be most counter-productive.

[50]   Mr Dillon suggests that a report from a psychologist trained in child interviewing techniques might have assisted Judge Smith to come to a view on the Crown’s application (and indeed Mr Dillon’s own application for access).  Mr Dillon submitted that it was dangerous at this point to rely only on the untested evidence of a social worker, hearsay statements made by a therapist and the children’s current caregivers, and the written advice of lawyer for child when deciding whether to deny him a hearing.

[51]    I accept that the Chief Executive’s case would have been stronger if a psychologist  had  provided  supporting evidence,  and  in  many cases  that  will  be positively required before strike-out should be considered.   An example might be found in S v S in which a psychologist suggested that children who were opposed to contact with their mother may well have been overly influenced by their father, and

in light of that, it was inappropriate to strike the proceeding out.20

20     S v S (2004) 24 FRNZ 685 (FC) at [8].

[52]     In this case however, there is not the slightest hint of such a possibility.  Once again, recourse need only be had to the children’s physical symptoms.  These cannot be the result of mere suggestion by the children’s current caregivers  or therapy. These were as Mr Walker indicated to Judge Smith, the most traumatised children he had ever worked with.  There was no real basis upon which it could be argued that the children’s animosity to Mr Dillon had been manufactured by others.   To delay dismissal further would be to prolong the uncertainty and anxiety of the children. The problem for Mr Dillon’s application, and what really makes the case for the Chief Executive’s application, is that it is not just that the children do not wish to have contact with Mr Dillon, but that the very thought of contact is distressing.

[53]     Like Judge Smith, I simply cannot see how the prospect of filtering that reaction through a report from a psychologist would change that.  On the other hand, I agree with the essence of Judge Smith’s concern that extending this process and requiring further input from the children is very likely to cause them greater anxiety even if it mediated through a careful and sensitive professional.  The same must also be true of the suggestion that contact be supervised.  While the suggestion may be relevant to the merits of Mr Dillon’s application, it does not meet the risk that the proceeding itself represents to the children even before its merits can be considered.

[54]     As to the steps Mr Dillon argues he has taken to address alcohol and drug addiction, and the Chief Executive’s stance that Mr Dillon remains incorrigible, the Judge does not seem to have reached a final view on these points.   Rather, he emphasised the children’s trauma, as indeed do I.  The best that can be said is that Mr Dillon has struggled with his addiction issues and his journey has been attended both  by successes  and  failures  along the way.   The important  point is  that  the evidence  in  relation  to  Mr  Dillon’s  efforts  does  not  displace  the  reality of  the children’s trauma.  That is, whatever he has done to regain control of his life cannot remove the children’s very real anxiety here and now – though perhaps it might assist when they are older.

[55]     There is one area that it might be said leaves some room for further inquiry. That  relates  to  Mark  Junior  and Annabelle  who  are  pre-literate  and  pre-verbal respectively.  I accept the specific submissions for the Chief Executive in relation to

Mark.   He is located with three of his older siblings who are likely to become anxious if they are made aware (as they must be according to the Act)21  that their little  brother  is  to  be  considered  for  contact.    As  to  Annabelle,  she  is  placed separately,  and  it  might  be  said  that  her  age  and  situation  gives  less  room  for concern.   She will not have been old enough (she was uplifted at two months) to have any memories of trauma.   It may be appropriate in the future to consider a separate application in relation to her, but not now and not within this application which is set up on  an  entirely different basis  and without the necessary expert

evidence in relation to her particular circumstance.

[56]     The  appeal  is  dismissed.    The  appellant  is  legally  aided  and  the  Chief

Executive seeks no costs orders.

Williams J

Solicitors:

Melanie Baker, Barristers & Solicitors, Lower Hutt

Ministry of Social Development and Oranga Tamariki Shared Legal Service, Wellington

Reids Family Law, Lower Hutt

Russell Walker, Barrister & Solicitor, Palmerston North

21     Section 10(1)(a) CYPFA.

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