HAE v Parr HC Christchurch CIV-2011-409-002010

[2011] NZHC 1818

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-002010

BETWEEN  HAE Applicant

ANDGEOFFREY FRANCIS PARR Respondent

Hearing:         19 October 2011

Appearances: A G James for Applicant

C Lange for Respondent
P O'Donnell for the Applicant's Child

Judgment:      19 October 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      The applicant,[1]  who has been in custody since October 2010, is seeking cancellation of an order for his deportation back to Nigeria.  The substantive hearing is scheduled for 9 November 2011.

[1] His name has been anonymised to protect the interests of his son.

[2]      The purpose of this hearing is to determine whether or not counsel should be appointed to represent the applicant’s four and a half year old son who is in the day to day care of his mother.  The applicant supports the appointment of independent counsel for the child, and the interests of the child form one of the main planks of his application for judicial review.  On the other hand, the respondent believes that the interests of the child can be adequately represented by the applicant.

[3]      Mr O’Donnell was appointed counsel for the child in relation to proceedings under the Care of Children Act 2004 between the applicant and the child’s mother. Reports from Mr O’Donnell are attached to the respondent’s affidavit which was

sworn on 18 October 2011.

HAE V PARR HC CHCH CIV-2011-409-002010 19 October 2011

[4]      A further report was provided by Mr O’Donnell this morning.  That report discusses the child in general terms and also recounts a discussion Mr O’Donnell had with the child on 17 October.  This morning Mr O’Donnell appeared as a courtesy to the Court.  Having gained the impression that Mr O’Donnell thought it unlikely that he could assist the Court further I granted him leave to withdraw.

Argument for the applicant

[5]      Mr James considered that he should take steps to have counsel appointed for the child because of the relatively unusual circumstances of this case.  He believed that he would be open to criticism if he did not take that step.  While he accepts that representation by parents will usually be sufficient in this type of situation, he noted that there are exceptions and that these are not necessarily rare.  He emphasised that if the application for judicial review fails the applicant and his son will be permanently separated.

[6]      In support of the proposition that separate representation would be in the interests of the child Mr James submitted:  the applicant has been in custody since October 2010; as a consequence contact between the applicant and his son has been limited; counsel for the child has already been appointed in relation to Family Court Proceedings; the child’s parents’ views are effectively in conflict; the cases relied on by the Crown are distinguishable; it is important for a separate and independent perspective to be advanced on behalf of the child; in this case counsel for the child is particularly senior and experienced; and the applicant does not have the ability to bring evidence, including psychological evidence, as to the impact of separation on the child.

Response

[7]      Mr Lange accepted that the reports from Mr O’Donnell, including the latest report, can be admitted and considered by Fogarty J on 9 November.   He also submitted:   a psychological report is exhibited to Mr Parr’s affidavit; this is not a case where the threshold for the appointment of independent counsel can be surmounted; counsel for the child can advance all relevant matters about the impact

of separation; the Court is well experienced in considering issues of this type; there would be no benefit to the Court if counsel for the child was appointed because all relevant information is before the Court; while there are factual differences between this case and the cases relied on by the respondent those differences are not critical and the underlying principles followed in the previous cases should also be followed now.

Discussion

[8]      In Ye v Minister of Immigration[2] the Supreme Court observed:

[2] Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [47]-[53]

[49]     ... Generally children’s interests in this kind of litigation should be represented by parents. A child may, however, need to be separately represented if there is good reason to believe that the parent will not adequately represent the child’s interests.  In  that event the  court  should appoint counsel to represent the child. If that occurs it is not necessary to make the child a formal party to the proceedings.

Later the Court went on to say at [50] that litigation in this field should not be complicated by a separate representation of children or by the children becoming formal parties unless that is necessary to enable their interests to be properly addressed.

[9]      In this case the reports from Mr O’Donnell will be before the Court, and I will shortly make an order admitting those reports.  The issue is whether the Court should take the further step of formally appointing Mr O’Donnell so that he can advance submissions or call evidence on 9 November.   Despite Mr James’ well considered submissions I have concluded that step is not justified in this case.

[10]     In reality the interests of the applicant and his child are synonymous.   I cannot see any conflict by virtue of the fact that the applicant has been in custody for a lengthy time or by virtue of the child being in the day to day care of his mother. All relevant information concerning the child’s views will be before the Court.

[11]     To my mind it is significant that Mr James, on enquiry from the Bench, appeared to express reservations about his ability to further assist the Court.   No

doubt that reflects the reality of the situation.  Submissions advanced on behalf of the applicant should be just as powerful as any submissions to the same effect on behalf of the child.  The application is therefore refused.  However, I direct that the latest report provided by Mr O’Donnell is to be admitted.  It is unnecessary to make such an order in relation to his earlier reports because they are already before the Court by virtue of Mr Parr’s affidavit.

[12]     One final matter, Mr O’Donnell prepared a report and appeared this morning out of courtesy to the Court.  Hopefully he will be remunerated in his role as counsel for the child.  However, should that prove not to be the case I reserve leave for the matter to be brought back before the Court so that an order for costs can be considered.

Solicitors:

Alister James, PO Box 130180, Christchurch 8141,  [email protected]

Raymond Donnelly, P O Box 533, Christchurch

Peter O’Donnell, P O Box 8517, Riccarton, Christchurch 8440,  [email protected]