F v Chief Executive of the Department of Child, Youth and Family Services CA130/05

[2005] NZCA 353

ORDER PROHIBITING PUBLICATION OF NAME OR ADDRESS OR IDENTIFYING PARTICULARS OF THE APPELLANT AND HIS SON.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA130/05

BETWEEN  F Appellant

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CHILD, YOUTH AND FAMILY SERVICES

First Respondent

ANDTHE FAMILY COURT AT LEVIN Second Respondent

Hearing:         20 July 2005

Court:            Anderson  P, Chambers and O'Regan JJ Counsel:  Appellant appears in person

V Sim for First Respondent

Judgment:      20 July 2005

JUDGMENT OF THE COURT

A        Order prohibiting publication of the name of the appellant and his son.

BThe appeal against the decision of the High Court is dismissed and consequently the application for the issue of the writ of habeas corpus is dismissed.

CPursuant  to  s  13(2)  of  the  Habeas  Corpus  Act  2001,  the  matter  is transferred to the Family Court at Levin.

F V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CHILD, YOUTH AND FAMILY SERVICES AND ANOR CA CA130/05 20 July 2005

REASONS

(Given by Anderson P)

[1]      The  Court  makes  an  order  prohibiting  publication  of  the  name  of  the appellant and his son.  This is because of the youth of the detained boy and other matters relating to his welfare that will be mentioned in the course of our brief reasons for judgment.

[2]      This is an appeal from the decision of a High Court Judge, Venning J, on an application for the writ of habeas corpus brought on behalf of and in respect of a nine year old boy, the applicant’s son.  The appeal is in response to an order of the Family Court made on 3 May 2005, on a without notice, or ex parte, application by a social worker who had been appointed by the Chief Executive of the Department of Child Youth and Family Services.  The Second Respondent has no relevant interest in the proceedings and has not participated.

[3]      The documents filed by the First Respondent cogently indicate grounds for concern  about  the  welfare  of  the  child.    His  father,  the  applicant,  is  a  serving prisoner.  His mother, it seems, has disturbing associations with the use of dangerous drugs.  The boy has complained of sexual abuse by a neighbour; he has been absent from school with a frequency suggestive of personal problems.  There are indications of violence in the relationship of his mother with a man who, apparently lives there on a regular basis.

[4]      The ex parte order put the boy in the custody of the Chief Executive Officer of CYFS, who then placed him with a close relative.  The evidence before us is that he has settled down in that domestic environment.  We note his father’s scepticism on that issue but we can only proceed on the evidence before us.  We also note that there  is  a  hearing  scheduled  before  the  Family  Court  next  week  and  that arrangements have been made for the father to participate in that hearing.

[5]      If the writ were to issue, the family member would cease to have custody of the boy but that would raise questions what would happen to him.  He is just a child and needs to be in someone’s care in the interim.

[6]      The Habeas Corpus Act 2001, at s 13, provides for ancillary powers allowing the High Court to transfer a proceeding to the Family Court where, substantially at issue, is the welfare of a young person.  This is because the writ can theoretically issue in cases involving custody of children.  Sometimes issuing the writ may be an appropriate response, but more often the appropriate response will invoke the expertise of the Family Court and its procedures.

[7]      Section 13 provides as follows:

13    Powers if person detained is young person

(1)     In dealing with an application in relation to a detained person who is under the age of 20 years, the High Court may exercise the powers that are conferred on a Family Court by the Guardianship Act 1968.

(2)      If the substantive issue in an application is the welfare of a person under the age of 16 years, the High Court may, on its own initiative or at the request of a party to the proceeding, transfer the application to a Family Court.

(3)     An application referred under subsection (2) must be dealt with by the Family Court in all respects as if it were an application to that Court under the Guardianship Act 1968.

[8]      The  father  has  filed  papers,  including  submissions,  which  challenge  the process whereby his young and vulnerable son has been committed to a relative’s care.  He has expressed concern that the application in the Family Court was made ex parte.   This seems to us to be one of those cases where avoidable distress and concern has been caused by an application issued without any notice, not even on a short term basis, or on a Pickwick basis.   Perhaps an  ex  parte application was justified.  We do not know.  That is a matter the father is going to challenge in the Family Court.  We simply note that the issuing of ex parte orders, particularly in a domestic situation, without the slightest degree of notice, may sometimes cause avoidable anger and distress.

[9]      When the matter came before Venning J he had before him the application and the father’s written submissions in support, but nothing else.  His response was by way of a minute, dated 10 June, where he noted that the application for habeas corpus was not in the form of an originating application and that the father had not been appointed guardian of the child for the purpose of the proceeding.  He found it was not apparent on the papers how it was said the child was detained in terms of the Habeas Corpus Act.   However, information supplied by the father indicated a detention pursuant to some order or direction of the Family Court.  Venning J noted the father’s concern at the orders made in the Family Court for the welfare of the boy and that there were proceedings before the  Family Court.    Without  specifically determining the habeas corpus application, either by granting it or dismissing it, he resorted to the ancillary powers in s 13(2) of the Habeas Corpus Act.  He ordered that the matter be transferred to the Family Court at Levin, where the proceedings are in train.

[10]     We consider that Venning J was not entitled to invoke s 13 without first complying with s 14 of the Act which provides:

14     Determination of applications

(1)      If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

(2)      A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

(a)    a conviction of an offence by a court of competent jurisdiction, a duly constituted court-martial, or an officer exercising summary powers under Part 5 of the Armed Forces Discipline Act 1971; or

(b)    a ruling as to bail by a court of competent jurisdiction. (3)     A Judge must determine an application by—

(a)    refusing the application for the issue of the writ; or

(b)     issuing the writ ordering the release from detention of the detained person.

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

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

[11]     The statutory provisions reflect the common law, developed over hundreds of years, to the same general effect.

[12]     The  High  Court  did  not  determine  the  application  and  did  not  act  in conformity with s 14.   The High Court merely invoked the ancillary power. Accordingly, we think it appropriate to treat the present appeal as a complete rehearing of the original application.

[13]     The fact that there is no formal originating application is no impediment because s 7(2) preserves the inherent jurisdiction of the High Court and, by other statutory provisions,  this  Court’s  inherent  jurisdiction,  to  entertain  even  an  oral application  at  any time.    We  would  not  allow  an  absence  of  form  to  defeat  a challenge to an alleged unlawful detention of a child when the child’s interests are being pursued by a parent who has physical impediments to direct access to the courts and lawyers.

[14]     Because the First Respondent is detaining the child it carries the obligation of satisfying the Court that the detention is lawful.  Having said that, we are satisfied on the evidence before us, that the detention is lawful.

[15]     The material before us includes a copy of a custody order made in the Family Court on 30 May, determining that the Chief Executive of Child Youth and Family Services shall have custody of the child in question pending determination of an application for a declaration.

[16]     Although the father wishes to challenge the appropriateness of the issuing of that order, the order is undoubtedly valid unless and until it might be held invalid. Even the discharge of the order will not characterise it as being invalid, simply either improvident or no longer appropriate.   In consequence the child’s detention is not unlawful but lawful.

[17]     The writ for habeas corpus will not issue in those circumstances and the application for habeas corpus is formally dismissed.  That determination permits the Court to resort to the ancillary powers under s 13(2) Habeas Corpus Act.

[18]     It is entirely appropriate that the power under s 13(2) be exercised and an order to that effect is made.

[19]     We note that a hearing in the Family Court is imminent and the father’s concerns may be aired there.

[20]     In the result:

(a)    The appeal against the decision of the High Court is dismissed and the application for the issue of the writ of habeas corpus is consequently dismissed.

(b)Pursuant to  s  13(2)  of  the  Habeas  Corpus  Act  2001,  the  matter  is transferred to the Family Court at Levin.

Solicitors:

Crown Law Office, Wellington