H v Family Court at Tauranga

[2018] NZHC 3459

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-000183

[2018] NZHC 3459

UNDER

The Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

H

Applicant

AND

FAMILY COURT AT TAURANGA

First Respondent

CHIEF EXECUTIVE, MINISTRY FOR VULNERABLE CHILDREN, ORANGA TAMARIKI

Second Respondent

Hearing:

21 December 2018

Appearances:

Applicant in person (via AVL)

RW Belcher for Second Respondent

Judgment:

21 December 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 21 December 2018 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland. EL Ross, Tauranga.

Copy to: Applicant.

H v FAMILY COURT AT TAURANGA [2018] NZHC 3459 [21 December 2018]

The issue

[1]                  Ms H has six children. The eldest is 12; the youngest 18 months. All are in the interim custody of Oranga Tamariki. On Monday, Ms H filed an application for a writ of habeas corpus in relation to the children. I heard that application today. Ms H appeared.1 So too Ms Ross,  counsel  for  the  children  in  the  Family  Court,  and Mr Belcher, counsel for Oranga Tamariki.

[2]                  Ms H’s position can be simply stated. She considers her children have been “kidnapped” by Oranga Tamariki, and should not be in its custody. Ms H wants her children home—and before Christmas. Ms H also questions the jurisdiction of the Family Court to make an interim custody order. Ms H believes the Treaty of Waitangi and Maori customary rights preclude the Family Court from exercising jurisdiction over her and her children.

[3]                  Oranga Tamariki’s position can also be simply stated. Mr Belcher contends the children are lawfully in the custody of Oranga Tamariki because of an order made by the Family Court under s 102 of the Oranga Tamariki Act 1989. Mr Belcher produced that order for my inspection. More about it shortly.

[4]                  Ms Ross appeared to assist. She filed a helpful report before the hearing. That report explains the welfare concerns in relation to the children, their progress, and all related background.

Principle

[5]                  Custody  orders  are  amenable  to  a  writ  of  habeas   corpus,   but   the Court of Appeal has discouraged use of this procedure, save in “rare” cases.2 The Family Court is a specialist one, with expertise in this area. Habeas corpus is concerned with the legality of detention; custody in the context of the care of children is a broader concern. An application for a writ of habeas corpus must be determined urgently. Associated procedure is truncated, and summary in nature. So, habeas corpus procedure is not intended—or equipped—as a substitute for proceedings by

1      Ms H conferred during the hearing with a person she described as her “Maori agent”.

2      See TWA v HC [2016] NZCA 459, [2017] NZAR 129 at [10].

appeal or judicial review. All of which explains that Court’s conclusion a “writ of habeas corpus cannot be pleaded for the collateral purpose of making such challenges”.3

Analysis

[6]                  Ms H’s children are lawfully in the interim custody of Oranga Tamariki. The order produced by Mr Belcher is unequivocal. It relates to all children, whom it places in the interim custody of the Chief Executive of Oranga Tamariki, until 13 February 2019. As observed, the order was made under s 102 of the Oranga Tamariki Act. Section 102 authorises the Family Court to make an order of this nature, which plainly it has.

[7]                  Habeas corpus procedure is not the correct one to address Ms H’s concerns. My reasons here are those identified by the Court of Appeal; this is not one of the rare cases contemplated by that Court. The essence of Ms H’s concerns is the Family Court should not have placed her children in the custody of Oranga Tamariki. Ms H may seek to review, or appeal, the order of the Family Court. Habeas corpus procedure may not be used to collaterally do so.4

[8]                  The order’s interim nature underscores this analysis. The Family Court will review the position on 13 February 2019. A writ of habeas corpus would pre-emptively terminate that review.

[9]                  Ms H’s arguments about jurisdiction must also be dismissed. Higher Courts have repeatedly held arguments based on Maori sovereignty cannot succeed.

3      L v Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki [2017] NZCA 517 at [13]; and AN v Counties Manukau District Health Board [2016] NZCA 226, [2016] NZFLR 468 at [10].

4      See also the Habeas Corpus Act 2001, s 14(1A).

Order

[10]Ms H’s application is dismissed.

……………………………..

Downs J