Health New Zealand - Te Whatu Ora, Te Toka Tumai Auckland v Hill
[2025] NZHC 427
•7 March 2025
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-443
[2025] NZHC 427
IN THE MATTER of an application pursuant to s 31 of the Care of Children Act 2004 to place a child under
the guardianship of the Court
AND
IN THE MATTER
of “Flower”
BETWEEN
HEALTH NEW ZEALAND | TE WHATU ORA, TE TOKA TUMAI AUCKLAND
Applicant
AND
“OCTAVIA HILL” and “ROBERT WINSTON”
First Respondents
THE CHIEF EXECUTIVE OF ORANGA TAMARIKI
Second Respondent
Hearing: 6 March 2025 Appearances:
P White for the Applicant
O Hill self-represented via AVL
R Winston self-represented with support person
SBC O’Connor and L K Eastlake for the Second RespondentJudgment:
7 March 2025
JUDGMENT OF GAULT J
HEALTH NEW ZEALAND | TE WHATU ORA, TE TOKA TUMAI AUCKLAND v HILL and WINSTON [2025] NZHC 427 [7 March 2025]
This judgment was delivered by me on 7 March 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
[1] Flower1 is a six-year-old girl who has been diagnosed with B-cell acute lymphoblastic leukaemia, a type of cancer that develops in the bone marrow. Flower completed induction chemotherapy treatment, but after beginning consolidation treatment on 13 January 2025, Flower’s parents withdrew consent to her ongoing treatment.
[2] Health New Zealand | Te Whatu Ora, Te Toka Tumai Auckland (Health NZ) seeks an order under the Care of Children Act 2004 (the Act) that Flower be placed under the guardianship of the Court and appointing three clinicians at Starship Children’s Hospital (Starship) as agents of the Court for the purpose of consenting to medical treatment for Flower’s leukaemia and any other medical condition that, due to her leukaemia or its treatment, requires medical intervention. The order sought also provides for the Chief Executive of Oranga Tamariki – Ministry for Children (Chief Executive) to be appointed as agent of the Court for specified purposes, and otherwise appointing Flower’s parents as general agents of the Court.
[3] Flower’s parents oppose the application on various grounds. I record at the outset that there is no doubt they are loving parents genuinely wanting what they think is best for their daughter at this frightening time.
Background
[4] Flower was diagnosed with this leukaemia on 3 December 2024. This diagnosis was confirmed the following day. Flower’s primary physician at Starship,
1 The public version of this judgment anonymises names to protect the identity of Flower and her family.
Dr Lochie Teague, a consultant paediatric haematologist, said that this type of cancer, when treated according to protocols, such as Starship’s current standard of care, is highly curable with in excess of a 90 per cent rate of success with early intervention.
[5] Flower’s family consented to chemotherapy and she commenced induction therapy on 6 December 2024. This is a four-week block of therapy aimed at getting the leukaemia to an undetectable level (remission). It involves administration of oral steroids, IV chemotherapy and intrathecal chemotherapy, which is followed by a reassessment of the bone marrow.
[6] Flower completed her induction treatment. She had residual leukaemia cells detectable at the day 29 reassessment at a level of 0.08 per cent which is considered minimal residual disease “positive”. Together this established her final risk classification of Standard risk – High. With conventional therapy as per Starship’s standard recommended protocol, and if Flower establishes minimal residual disease assessment in negative state at the next time point (which is expected), her three year disease free survival rate would be estimated to be 94-95 per cent.
[7] Flower began consolidation treatment on 13 January 2025 with a dose of subcutaneous and intrathecal chemotherapy agents which was to be followed by 27 days of oral chemotherapy to be given at home and to attend weekly clinic visits. However, that same day, Flower’s father (Robert2) told the medical team that he and Flower’s mother (Ms Hill) did not want Flower to receive any more chemotherapy and preferred alternative lifestyle therapies instead. Dr Teague explained that chemotherapy is the only proven cure for this type of cancer but confirmed that the team could accommodate complementary therapies as long as they did not disrupt the chemotherapy treatment. Robert communicated that, in his view, it was a choice between therapies and there was no potential for co-existence.
[8] Since Flower was discharged on 13 January 2025, Dr Teague said on 24 February 2025 that she had missed receiving 28 days of oral chemotherapy. She also appears to have missed three subcutaneous injections administered by community nurses during that period and had not attended weekly therapy visits.
2 At his request, I will refer to Mr Winston as Robert.
[9] After a period of correspondence, on 17 February 2025 Starship sent a report of concern to Oranga Tamariki. Flower’s parents responded by agreeing to a meeting at Starship on 21 February 2025. At that meeting, Ms Hill explained that she did not accept that chemotherapy was required, and that she intended to treat Flower by natural and spiritual means. Robert explained his thoughts that the motivation for using chemotherapy was driven by “Big Pharma”. Dr Teague explained that the team wanted to start the treatment at 10am on Monday (24 February). Ms Hill responded that they would not agree to any more chemotherapy, but Robert said they would consider the issue over the weekend. Dr Teague hoped they would attend on the Monday, but they did not do so.
Court proceeding
[10] On 25 February 2025, Health NZ commenced this Court proceeding seeking an order that Flower be placed under the guardianship of the Court until the earliest of completion of her medical treatment for leukaemia or three years, and appointing Dr Teague, Dr Mark Winstanley and Dr Leander Timothy as agents of the Court for the purpose of consenting to the medical treatment and any other medical condition that, due to her leukaemia or its treatment, requires medical intervention.
[11] The order sought also provided for the Chief Executive to be appointed as agent of the Court for the purpose of ensuring that Flower receives the medical treatment including, if necessary, the uplifting of Flower and placement of her at a residence where her receipt of the medical treatment is assured, and otherwise appointing Flower’s parents as general agents of the Court. The order sought also directs the clinicians to keep Flower’s parents informed at all reasonable times of the nature and progress of Flower’s condition and treatment.
[12] The same day, I granted Health NZ permission to commence this proceeding by originating application, in the interests of justice, and made directions as to service and timetable directions towards an urgent fixture.3
3 Minute dated 25 February 2025.
[13] On 3 March 2025, I determined it was unnecessary to appoint a separate lawyer to represent Flower in this proceeding.4
[14] On the evening of 5 March 2025, the night before the hearing, Health NZ made an urgent oral without notice application for an interim guardianship order on the basis that the Department of Internal Affairs had advised that Flower and her mother (and siblings) were booked on one or more international flights scheduled to depart Auckland later that night with the ultimate destination of [REDACTED].
[15] I convened a telephone conference at 7:45 pm that evening (on a Pickwick basis) to give the respondents an opportunity to be heard before determining Health NZ’s urgent application. Ms Hill and Robert did not participate. I made an interim order placing Flower under the guardianship of the Court; appointing the Chief Executive as agent of the Court for the purpose of the safe placement of Flower pending further order of the Court; together with ancillary orders.5
[16] As a result, at the hearing yesterday Mr O’Connor for the Chief Executive advised on instructions (as no updating evidence was available) that police and social workers had attended the airport and located Ms Hill and three of her children about to board a flight. They were taken aside and informed of the order. Rather than hand over Flower to social workers and police, all were taken to the police station. Flower and Ms Hill spent the night in a motel with a social worker.
[17] Given these developments, Health NZ and the Chief Executive proposed amended orders at the hearing, seeking to extend the scope of the Chief Executive’s agency role for the following purposes:
(a)ensuring that Flower receives medical treatment recommended by a medical practitioner who considers treatment is in accordance with good clinical practice and in Flower’s best interests;
4 Minute dated 3 March 2025.
5 Minute dated 5 March 2025 and Order/Minute (No 2) dated 5 March 2025.
(b)power to remove and place Flower at a place approved by the Chief Executive or his delegate;
(c)power to control access; and
(d)power to control education.
[18] Mr White, for Health NZ, acknowledged that this order sought was more invasive but submitted it was necessary here – on the basis that obstruction by Flower’s parents meant that Flower could not be located with the family during treatment (at least initially). He proposed a review in three months. He also sought an order that Flower’s parents surrender her passport.
[19] Mr White also indicated that given the timing, the proposed lumber puncture and bone marrow aspirate would not take place until Monday (10 March 2025).
Guardianship orders – applicable principles
[20]Section 31 of the Act provides as follows:
31 Application to Court
(1)An eligible person may make an application to a Court with jurisdiction under this section for—
(a)an order placing under the guardianship of the Court a child who is not married, in a civil union, or in a de facto relationship:
(b)an order appointing a named person to be the agent of the Court either generally or for any particular purpose.
(2)In this section, eligible person, in relation to a child, means any of the following persons:
(a)a parent or guardian of the child:
(b)a grandparent or an aunt or an uncle of the child:
(c)a sibling (including a half-sibling) of the child:
(d)a spouse or partner of a parent of the child:
(e)the child himself or herself (who may apply without any litigation guardian):
(f)the chief executive:
(g)any other person granted leave to apply by the Court.
[21]The High Court and the Family Court have concurrent jurisdiction under s 31.6
[22]Section 33(1) provides:
33 Orders of Court
(1)A Court to which an application is made under section 31 may—
(a)make an order described in section 31(1)(a); or
(b)make orders described in section 31(1)(a) and (b); or
(c)make—
(i)an order described in section 31(1)(a); and
(ii)an order appointing any person whom the Court thinks fit to be the agent of the Court either generally or for any particular purpose.
[23]Section 36(3) relevantly provides:
(3)If the consent of any other person to any medical, surgical, or dental treatment or procedure (including a blood transfusion) to be carried out on a child is necessary or sufficient, consent may be given—
(a)by a guardian of the child; …
[24]Importantly, s 4(1) of the Act provides:
(1)The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—
(a)in the administration and application of this Act, for example, in proceedings under this Act; and
(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
(2)Any person considering the welfare and best interests of a child in his or her particular circumstances –
(a)must take into account –
6 Care of Children Act 2004, s 30.
(i)the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and
(ii)the principles in section 5; …
[25] As the Court of Appeal confirmed in Re J (An infant): B and B v Director-General of Social Welfare,7 this Court has jurisdiction, where the interests of the child so require, to place the child under the guardianship of the Court and authorise a suitable person (such as a doctor) on its behalf to consent as guardian to medical treatment.
[26] Every child has the right not to be deprived of life except on such grounds as are established by law and consistent with the principles of fundamental justice.8 Even in cases where the parents rely on the right to manifest their religion and practice,9 the scope of that right excludes doing or omitting anything likely to place at risk the life, health or welfare of their children.10
[27] Mr White, for Health NZ, acknowledged the approach where parental rights are to be overridden, by analogy with this and other blood transfusion cases, is that there must be a real or substantial risk that the medical care would call for the proposed treatment and that treatment is accepted medical practice.11
Analysis of the application
Leave for Health NZ to apply under s 31 of the Act
[28] Health NZ seeks leave, pursuant to s 31(2)(g) of the Act, to apply for an order placing Flower under the guardianship of the Court. Section 31(2) specifies persons who are eligible to apply for an order placing a child under the guardianship of the
7 Re J (An infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA) at 142 (under s 9 of the Guardianship Act 1968). In this Court, see for example Auckland District Health Board v S [2020] NZHC 300 and Auckland District Health Board v E [2013] NZHC 2154, [2014] NZFLR 451. The Court’s jurisdiction is unaffected by the restructuring of the hospital system such that the applicant is Health NZ instead of the District Health Board: Te Whatu Ora, Health New Zealand, Te Toka Tumai v C and S [2022] NZHC 3283, [2022] NZFLR 398 at [35].
8 New Zealand Bill of Rights Act 1990, s 8.
9 New Zealand Bill of Rights Act 1990, s 15.
10 Re J (An infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA) at 146.
11 At 143.
Court and requires any other person to seek leave to apply. The leave requirement is an additional safeguard. The focus is on the standing or interest of the person seeking leave rather than the merits of the application which must be considered if leave is granted. Here, the applicant is Health NZ (not the clinicians proposed to be appointed as agents of the Court if an order placing a child under the guardianship of the Court is made). Health NZ is charged with Flower’s medical care and treatment and has a bona fide interest in her welfare. This is a sufficient basis to be granted leave to apply for an order placing Flower under the guardianship of the Court. I grant leave under s 31(2)(g).
Dr Teague’s medical evidence
[29] I have already referred to the survival rates for this type of cancer when treated according to Starship’s protocols. Dr Teague acknowledges that the chemotherapy agents used are not without risks. The risk can be mild, moderate, or in some cases severe and even life-threatening, or, in very rare circumstances, result in death. When these agents are delivered in an appropriately supported manner with engagement with healthcare, these risks are minimised. The proposed treatment has reported mortality from treatment related effects of less than two per cent. Although the chemotherapy agents used can have significantly longer term impacts, the vast majority of survivors of standard risk leukaemia treated with modern therapy go on to be healthy survivors with good quality of life and only a small risk of significant long term chemotherapy related toxicity.
[30] Dr Teague said the team’s treatment approach is internationally established and is constantly refined to both improve survival but also to reduce short and long term toxicity. The protocol uses a multiagent multi-route chemotherapy regime over a period of approximately two and a half years. He said that failure to strictly adhere to the protocol will put Flower at risk of developing resistant disease and/or risk of progression and death if not treated.
[31] A substantial proportion of the treatment is required to be administered by a caregiver to Flower in the community rather than in hospital. Of the anticipated 882 days of treatment, 865 of those days Flower could be in the community.
Additional day-stay visits for supportive care such as infection prevention and blood transfusions would be expected. Additional inpatient stays are common, particularly during the first 10 months of therapy, and are required for treatment toxicity, such as infection. These can be short (one to two days) but are often a week or more in duration. They are uncommon during maintenance cycles, with most children returning to normal activity such as school during the last 18-20 months of therapy.
[32] After completing the approximately two and a half years of chemotherapy, Flower will need long term monitoring to check for recurrence and any long term chemotherapy toxicity. Starship Blood and Cancer Centre has an established programme for follow up.
[33] Flower’s case has been reviewed at a multi-disciplinary team meeting and agreement was reached at that meeting that the proposed treatment was in Flower’s best interests. Her treatment would be continually reviewed at departmental multi-disciplinary meetings.
[34] Dr Teague said that any delay in treatment will result in significant reduction of the success rate of the overall therapy as, with gaps in therapy, residual leukaemia cells emerge with resistance to standard risk therapy. If left untreated these will result in relapse / recurrence. Although relapse is still curable in a significant portion of cases, relapse therapy is more complex and significantly more toxic with a much lower risk of survival (40-70 per cent depending on the mode of relapse) and an almost inevitable risk of long term health impacts. Predicting time periods to relapse with treatment abandonment is difficult but would be expected within a matter of months.
[35] Flower is now over seven weeks behind in her chemotherapy treatment. Dr Teague said that every day that she is not receiving treatment, her leukaemia cells are multiplying. This means her chances of survival diminish, and she is at the increased risk of complications. He considers that the reality of her unwellness will not be visibly noticeable at present as it was when she first presented in December 2024. This may be falsely leading her parents to believe that she is stable, when in fact she is not.
[36] In summary, Dr Teague’s opinion is that good clinical practice will require that Flower is administered medical treatment to treat her leukaemia as soon as possible, and that this is in her best interests. His reply affidavit confirms the clinicians still believe it is absolutely necessary for Flower’s survival that she be provided chemotherapy – the only option available that has a reasonable chance of curing her.
[37] Dr Teague acknowledges the natural therapies referred to by Ms Hill may provide some benefit, but he considers they will not cure Flower nor prevent her death from the leukaemia. He said that she will have been affected by the chemotherapy and then her condition (as perceived by others) would have improved when this ceased, but it would be wrong to associate natural therapies as being the cause of her improvement.
[38]Dr Teague concluded:12
Our sole aim is to maximize [Flower's] chances of survival so that she can continue to enjoy a happy life with her family. The delay in treatment will already have reduced her chances of survival from around 95% to a lower figure we cannot quantify. If we do not provide treatment, her chances of survival will be 0%. If we have further delays or pauses in treatment, her chances of relapse will increase, and her chance of cure will drop to around 20-30%.
Ms Hill’s position
[39] Ms Hill is a doctor of natural sciences. Her affidavit explained being by Flower’s side along this journey. Ms Hill said how, during her last round of chemotherapy, Flower had complications. For Ms Hill, to watch her daughter experience this was horrifying. She believes the root cause of the illness is an imbalance from toxicity and that a healthy body with a robust immune system is capable of getting rid of cancer cells. She refers to their approach of supporting Flower’s immune system and says Flower’s wellbeing has skyrocketed. This approach included the work of a naturopath who works from a system based on natural supplements and remedies derived from plants and minerals. She doubted Flower still has cancer in her body and challenges Dr Teague’s evidence, asking for proof. Ms Hill
12 This is consistent with a review article in the New England Journal of Medicine in 2015 attached to Dr Teague’s reply affidavit.
said that Health NZ is incorrect when stating that Flower’s condition has been getting worse as they have not seen her progress over the past two months.
[40] At the hearing, she explained the decision to leave the country by saying she does not feel safe in New Zealand. She also said Dr Teague has not responded to her treatment view, that she has not neglected Flower, has supported her and notes the fine line between treating effectively and poisoning. She said that Flower is now happy and has vitality.
[41] Flower, through her mother, is half [REDACTED]. Ms Hill said she was taking her there for a second opinion and to pursue alternative treatment options. Taking Flower away from the family would mean losing her roots, and would result in fear. Ms Hill submitted that healing could not happen in these conditions. She referred to Flower’s best interests. She believes that their unique approach to Flower’s treatment could have contributed to Flower’s spontaneous remission. She said a further test is paramount and she is open to finding treatment, but they need to heal the root cause. She feels they have not been heard or understood; that they have been overridden. She notes that two and a half years is an extremely long time and Flower needs to remain part of the family. Also, her parents are ageing and all of her family are in [REDACTED]. They are supportive. Ms Hill notes her sadness that if Flower were to undergo treatment, given the timeframe, it would likely mean that Flower may not be able to see her grandparents again.
[42] Ms Hill said that she is open to finding the next protocols and treatments that would be the most beneficial for Flower. She said she is willing to cooperate with Health NZ, but expressed her concern over a focus on one specific protocol of treatment – being chemotherapy – rather than considering other treatments.
[43] Finally, at the end of the hearing Ms Hill said that if treatment is the only option, she is the one who would have to administer treatment at home and take Flower and to the hospital, and that she would do it, that is she would honestly comply. Her priority is to keep Flower in their home, well and happy.
[44] I accept that Ms Hill genuinely has what she believes are Flower’s best interests at heart.
Robert’s position
[45] Robert reiterated many of Ms Hill’s points. He emphasised their qualifications and interest in research. He said that Flower is the youngest of [REDACTED] daughters, she is smart and has high sensitivity. He expressed concern about the extreme trauma for Flower if “stolen” by Oranga Tamariki given its record.
[46] He referred to the many fruits and salad plants at their rural property with medicinal and mineral benefits. He said they had worked with 12 practitioners, and said Dr Teague’s understanding was extremely narrow and alarming. He said the 21 February meeting was like talking to a brick wall. Unlike Ms Hill, he is not willing to conditionally accept further treatment if a bone marrow test is done. He said he is disgusted with the New Zealand system and that their close-knit [REDACTED] family, including a doctor, shared this disgust. He expressed alarm at the medical “industry”.
[47] He said his only interest was Flower’s health and confirmed she is healthy, cheeky and has her vitality back. They are supporting her diet with 12 or more supplements.
[48] Robert remained opposed to Health NZ and especially to the involvement of Oranga Tamariki. Some of his submissions reflected a genuine view that natural remedies were healing Flower and a genuine concern about the trauma for her if relocated with Oranga Tamariki. However, some of his strongly worded statements reflected a lack of appreciation of the medical evidence and a lack of insight.
[49] Robert sought assistance at the hearing from [REDACTED], described as an “interpreter” to help Robert understand the language of the court rather than a McKenzie friend.13 Although unorthodox, by consent I allowed [REDACTED] to speak after Robert, even though he sought to make a legal submission rather than
13 Robert also said he had left his hearing aids at home, but he had no difficulty participating in the hearing.
interpret.14 He submitted that the Court does not have the jurisdiction to manage the administration of Flower on the basis that for administration one has to be dead. Such reference to administration is irrelevant to this case. He also submitted the definition of “person” in s 13 of the Legislation Act 2019 says “person includes a corporation sole, a body corporate, and an unincorporated body” which means that “person” excludes a living human being. He submitted there was no evidence that Flower, Robert and Ms Hill were “persons”, so statutory powers cannot be enforced on them. Such a submission cannot succeed. That is plainly not the effect of the word “includes” in the definition of “person”.15 This is reinforced by the definition of “child” is the Act as a person under 18 years. The Act is binding and the Court must uphold it. No family members are able to dissociate themselves from being persons so as to remove themselves from the jurisdiction of the Court.16 He also referred to the prohibition against slavery and how fraudulent acts are void. He said that the family were not giving consent to any corporation having jurisdiction over them, and that actions with intent and bad faith gave rise to criminal liability. All these submissions, which were heralded in Robert’s notice of opposition, are misconceived and did nothing to assist Robert or his family.
Conclusion
[50] I accept there is genuine concern about the risks of chemotherapy and that Flower’s health has outwardly improved since she ceased the induction treatment. However, there is no expert medical evidence doubting that the proposed treatment is necessary or accepted medical practice. Having carefully considered Dr Teague’s medical evidence and the concerns of Flower’s parents, I accept that Flower needs the ongoing treatment proposed by Dr Teague to save her life. If that treatment is followed, Flower’s prognosis is very good. Despite the risks, such treatment is accepted medical practice and is in Flower’s best interests.
14 [REDACTED] was not an interpreter in the sense that term is used in this Court and the indulgence allowed by consent in this unusual case should not be regarded as any precedent in relation to the limited role of McKenzie friends or other support persons.
15 The same applies to the nonsense argument that the family members do not have a date of birth since they are alive and therefore are excluded from the definition of “birth” in s 4 of the Births, Deaths, Marriages, and Relationships Act 2021, which states that “birth includes a stillbirth but does not include a miscarriage”.
16 See for example Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105 at [11].
[51] Given this, and the parents’ opposition to the proposed treatment, I am satisfied that a guardianship order is in Flower’s best interests.
Scope of order
[52] I accept that the undisputed attempt to take Flower out of New Zealand the night before the hearing raised further serious concern on the part of Health NZ and Oranga Tamariki as to whether Flower’s parents would comply with an order in the form originally sought. I also accept that any order needs to be sufficiently specific so as to be workable for everyone involved.
[53] However, the refusal to consent to ongoing treatment and even the plan to take Flower to [REDACTED] in what may be considered an attempt to pre-empt a Court order while the application was pending do not necessarily mean that Flower’s parents would refuse to comply with the terms of a Court order. I acknowledge Ms Hill’s ultimate position that if treatment is the only option, she would comply.
[54] An order in the amended terms sought authorising the Chief Executive to remove Flower from her family and control their access to her would be a very draconian order potentially applying for a long time in a six-year-old’s life. Insofar as the order sought also extends to education, and accepting that the Chief Executive has a responsibility in relation to education in respect of children in his care, that responsibility only arises if the agency extends to such care. The prior questions are whether such care is necessary to ensure the medical treatment is given and whether it is necessary for the Chief Executive to have authority to control Flower’s parents access to her. While I accept Mr O’Connor’s indication that the Chief Executive would be looking to allow access, I do not consider it would be in Flower’s best interests to separate her from her family at this vulnerable time unless absolutely necessary. That is consistent with Dr Teague’s position in his reply affidavit where he said they were willing to try an option involving daily observed therapy.
[55] I do not consider it is necessary to separate Flower from her family and control access at this stage given Ms Hill’s commitment. I consider it is more appropriate to impose a less invasive order in respect of the medical treatment with sufficient safeguards to ensure compliance, and reserving leave should further order be
necessary. To ensure compliance in circumstances where Flower is not being placed into the Chief Executive’s residential care, I accept an ancillary order is necessary requiring Flower’s parents to facilitate the treatment occurring and not to obstruct it being given. This should extend to transporting Flower to in-hospital appointments as needed, and contacting Starship immediately if Flower’s condition deteriorates. If Flower’s parents do not facilitate the treatment occurring or obstruct it, a more invasive order will likely be necessary.
[56] That is not to say that the Chief Executive’s agency is unnecessary for general oversight. Further, in order to ensure that the medical treatment can continue pending urgent Court review if Flower’s parents do not facilitate the treatment occurring or obstruct it, I consider it prudent for the Chief Executive to be authorised to uplift Flower so that receipt of the medical treatment is assured (as sought even before the events of 5 March 2025).
[57] I do not consider it necessary at present to order surrender of Flower’s passport given Ms Hill’s commitment and the effectiveness of the intervention on 5 March 2025.
Non-publication
[58] Publication of information identifying Flower (such as name and address) is automatically prohibited.17 The prohibition extends to parties to the proceeding including Flower’s parents and to Robert’s support person. However, I grant leave to publish the identity of the applicant (Health NZ) and the second respondent (the Chief Executive).
Result
[59] Leave is granted to Health NZ to apply for an order placing Flower under the guardianship of the Court under s 31(2)(g) of the Care of Children Act 2004.
17 Care of Children Act 2004, s 139, and Family Court Act 1980, ss 11B-D.
[60]I make the following substantive order:
(a)placing Flower under the guardianship of the High Court from the date of the order until the earliest of completion of her medical treatment for B-cell acute lymphoblastic leukaemia or three years following the date of the order;
(b)appointing Dr Lochie Teague, Dr Mark Winstanley and Dr Leander Timothy as agents of the High Court for the particular purpose of consenting to the medical treatment for Flower’s B-cell acute lymphoblastic leukaemia and any other medical condition that, due to her leukaemia or its treatment, requires medical intervention (including but not limited to chemotherapy, surgery, the administration of blood and/or blood products and other supportive care such as treatment of infections) (hereinafter referred to as medical treatment) where the administration of the medical treatment is in accordance with good clinical practice and in Flower’s best interests as assessed by Dr Teague, Dr Winstanley and/or Dr Timothy;
(c)appointing the Chief Executive of Oranga Tamariki as agent of the High Court for the purpose of ensuring that Flower receives the medical treatment that Dr Teague, Dr Winstanley and/or Dr Timothy consider is in accordance with good clinical practice and in Flower’s best interests, including, if Flower’s parents do not facilitate the treatment occurring or obstruct it, the uplifting of Flower and placement of her at a place where her receipt of the medical treatment is assured (in which event an urgent review of the order is to be sought);
(d)appointing Flower’s parents Octavia Hill and Robert Winston as general agents of the High Court for all purposes other than those specified in (a)-(c) above;
(e)requiring Ms Hill and Mr Winston to facilitate the medical treatment occurring, including by transporting Flower to in-hospital
appointments as needed and contacting Starship immediately if Flower’s condition deteriorates, and not to obstruct the medical treatment being given;
(f)directing Dr Teague, Dr Winstanley and Dr Timothy to keep Flower’s parents informed at all reasonable times of the nature and progress of Flower’s condition and treatment; and
(g)reserving leave to the parties to apply to the High Court for a review of these orders should this be warranted by any change in circumstances.
Gault J
Solicitors / Counsel:
Mr P White, Barrister, Auckland
Ms S Tune (applicant’s instructing solicitor), Te Toka Tumai Auckland The First Respondents
Ms SBC O’Connor and Mr LK Eastlake, Luke Cunningham Clere, Office of the Crown Solicitor, Wellington
0
4
1