Henderson v Chief Executive of Oranga Tamariki - Ministry for Children

[2025] NZHC 144

NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2025-454-000011

[2025] NZHC 144

UNDER

the Habeas Corpus Act 2001

IN THE MATTER OF

An application for a writ of Habeas Corpus

BETWEEN

MS HENDERSON

Applicant

AND

CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN

Respondent

Hearing:

11 February 2025

Counsel:

Applicant in person

V E Squires for Respondent

Judgment:

12 February 2025

JUDGMENT OF LA HOOD J

A habeas corpus application relating to the care of a child

[1]                 Ms Henderson applies for a writ of habeas corpus in respect of her son, Ryan.1 Ryan is subject to Family Court orders placing him in the care of Oranga Tamariki. Ms Henderson says those orders are unlawful and therefore Ryan is unlawfully detained.

1      The applicant and her son’s name have been anonymised in this judgment in compliance with ss 11B–11D of the Family Court Act 1980 and s 437A of the Oranga Tamariki Act 1989.

HENDERSON v CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN [2025]

NZHC 144 [12 February 2025]

[2]                 The Chief Executive of Oranga Tamariki | Ministry for Children is named as a respondent.2 Ryan is subject to orders made by the Family Court on 17 March 2023 placing him in the custody of the respondent under s 101 of the Oranga Tamariki Act and appointing the respondent as an additional guardian under s 110 of that Act (the care orders).

[3]                 Ms Henderson pursued a similar application for habeas corpus in 2023, which Grice J declined,3 and the Court of Appeal dismissed an appeal on 11 March 2024.4 Around the same time, Ms Henderson’s appeal of the underlying Family Court orders was also dismissed by Grice J.5

[4]                 Ms Henderson’s primary ground is that the orders placing Ryan in the care of the respondent are unlawful because the Court has failed to comply with s 138(1) of the Oranga Tamariki Act 1989 by failing to fix a date by which a review of the revised plan prepared in relation to the care orders is to be carried out. Ms Henderson submits this failure means the care orders made under s 128(2) are unlawful. And it follows that Ryan is unlawfully detained.

[5]                 Ms Henderson also submits that Ryan’s detention is unlawful because the care orders were unlawfully made for a variety of other reasons. She summarised these as the deliberately deceptive conduct of the respondent’s employees and the unlawful conduct of the counsel and Judges involved in the care order proceedings. This includes the High Court and Court of Appeal’s conduct and decisions in respect of her previous habeas corpus application, and Grice J’s conduct and decision on her appeal against the care orders. In accordance with s 14(1A) of the Habeas Corpus Act 2001, I am satisfied that an application for writ of habeas corpus is not the appropriate process for considering such allegations. In addition to these arguments appearing to be precluded by the doctrine of res judicata, enquiry into such matters cannot

2      The application also improperly named counsel for the child appointed by the Family Court as a second respondent.

3      Henderson v Chief Executive of Oranga Tamariki [2023] NZHC 2766.

4      Adamson v Chief Executive of Oranga Tamariki [2024] NZCA 52.

5      Henderson v Oranga Tamariki—Ministry of Children [2023] NZHC 3018; Ms Henderson advised at the hearing that she did not seek leave to appeal this decision for financial reasons.

“appropriately be dealt with in a summary manner in the context of a habeas corpus application”.6

[6]                 The remainder of this decision will therefore only address the point relating to the alleged failure to fix a date for review of the plan.

The alleged failure to fix a date for review of the plan

[7]                 One of the main focuses of Ms Henderson’s previous habeas corpus application was the breakdown of the s 128  plan  that  accompanied  the  care  orders.  The  High Court and Court of Appeal determined that any breakdown of a plan had no bearing on the validity of the underlying care orders.7

[8]                 When care orders are made under s 128(2), a plan must be prepared before that order is made. The plans address, among other things, the objectives to be achieved for the child, the time period for this and the responsibilities of the individuals involved in the child’s care.8

[9]                 Sections 134(1) and 138(1) are in substantially the same terms, but s 134(1) applies prior to a review of the plan and s 138(1) follows a review. Section 134 provides that on the making of a care order under s 128(2), the court shall fix a date by which a review of the plan is to be carried out, which must be within 12 months from the date of making the order where the young person is aged at least 7 years.9 Section 138 provides that if a decision is made on review that an order should remain in force, the court shall fix a date by which a review of the revised plan is to be carried out, which again must be within 12 months of the date of the order. Ms Henderson’s

6      Adamson v Chief Executive of Oranga Tamariki, above n 4, at [20]. Custody orders are amenable to a writ of habeas corpus, but only in rare circumstances: Adamson v Chief Executive of Oranga Tamariki [2022] NZCA 505 at [28]; and DE v Chief Executive of the Ministry of Social Development [2007] NZCA 453, [2008] NZFLR 85. Establishing that there has been a valid order made by the Family Court is not a conclusive answer to an application for habeas corpus, but any challenges are more appropriately pursued by way of review or judicial review: D (CA504/2020) v Adams [2020] NZCA 454 at [9].

7      Henderson v Chief Executive of Oranga Tamariki, above n 3, at [11]–[12]; Adamson v Chief Executive of Oranga Tamariki, above n 4, at [15]–[16]. The Court of Appeal noted that s 137(5) explicitly provides that where a report is furnished in respect of the review of a plan, any s 128(2) care order remains in force until a decision has been made with respect to that order: at [16].

8      Oranga Tamariki Act 1989, s 130(1).

9      Section 134(1) and (2)(b).

submissions focused on s 138(1), presumably on the basis that the current approved plan was a result of a review under s 135.

[10]              There is a hearing to determine Ms Henderson’s application to discharge the care orders scheduled as a back-up fixture on 25 and 26 March.10 The s 128 plan in place for Ryan is dated 7 October  2024.  At  a  hearing  on  17  October  2024,  Judge Hickman (among other things) approved the s 128 plan.11 Judge Hickman noted that Ms Henderson did not consent to the plan, that the objection will be addressed at the substantive hearing in March, and that an internal monitoring date to discuss progress of the plan should be convened and a report of a social worker under s 186 of the Act obtained to update on progress of the plan.12 A judicial conference was convened on 16 December 2024 to monitor the plan, which also dealt with issues to ensure that the March back-up fixture is able to progress.13

[11]              The time to review the current plan does not expire until 17 October 2025. It appears that Judge Hickman has in effect fixed the date by which a substantive review of the plan is to be carried out as the 25 to 26 March back-up hearing date (and a monitoring review has already been carried out at the conference on 16 December 2024). Therefore, on the information available to me, it appears there has been substantive compliance with the requirement to fix a date for review of the plan.

[12]              However, if I am wrong about this, I accept the respondent’s submission that any failure to formally fix a date for review of the plan under s 138 (or s 134) does not have the effect of invalidating the underlying care orders and rendering Ryan unlawfully detained.

[13]              It is well-established that procedural error does not necessarily invalidate official action.14 Whether non-compliance with a procedural requirement is fatal

10     See Chief Executive of Oranga Tamariki—Ministry of Children v [Henderson] FC Palmerston North FAM-2021-054-405, 9 January 2025 (Minute of Judge Hickman) at [3(a)].

11     Chief Executive of Oranga Tamariki—Ministry of Children v [Henderson] FC Palmerston North FAM-2021-054-405, 17 October 2024 (Minute of Judge Hickman) at [3(e)].

12 At [3(e)] and [4].

13     Chief Executive of Oranga Tamariki—Ministry of Children v [Henderson] FC Palmerston North FAM-2021-054-405, 16 December 2024 (Minute of Judge Hickman) at [2].

14     Sestan v Director of Area Mental Health Services, Waitemata District Health Board [2007] 1 NZLR 767 (CA) at [44].

depends on the place of the requirement in the scheme of the Act and the degree and seriousness of non-compliance.15 For example, any non-compliance with mental health or intellectual disability legislation may not result in invalidation of care orders.16 In such circumstances, the “Court must assess what happened, why it happened and how it happened, remembering that the protection of a vulnerable person, and potentially the community, is at the heart of the legislative framework.”17

[14]              The s 128 plan is a necessary part of the directions put in place for a child’s care, but the plan’s ongoing status does not impact upon the lawfulness of the underlying care orders. For example, to make a custody order under s 101, the Court must be satisfied that the child is in need of care and protection in line with the Act’s child protection purpose.18 The fixing of a date for review under s 138(1) is a procedural step to ensure the effective review of a plan within 12 months, but invalidating an underlying child protection order for any non-compliance with such a step would be contrary the scheme of the legislation.

[15]              The conclusion that any non-compliance (if there has been any) should not invalidate the underlying orders in this case is reinforced by the steps taken by the Family Court to keep the care orders and associated plan under review and tracking towards a substantive hearing in March 2025. If that back-up hearing cannot proceed, I expect the Family Court to progress matters as swiftly as possible and in line with the requirements of the Act.

[16]              I therefore dismiss the application for habeas corpus and direct that this judgment be provided to the Family Court.

La Hood J

Solicitors:
Luke Cunningham Clere, Wellington for First Respondent

15 At [45].

16     Sestan v Director of Area Mental Health Services, Waitemata District Health Board, above n 13; Care Co-ordinator v R [2020] NZCA 574.

17     Sestan v Director of Area Mental Health Services, Waitemata District Health Board, above n 13, at [90].

18     Section 4(1)(b).