Hughes v Ministry of Social Development

[2014] NZHC 3093

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

ALSO NOTE:  NAMES USED IN THIS JUDGMENT ARE ANONYMISED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-11045 [2014] NZHC 3093

BETWEEN

SARAH ELIZABETH HUGHES

as Litigation Guardian for Victoria
McDonald

AND

MINISTRY OF SOCIAL DEVELOPMENT

First Respondent

GARETH MITCHELL Second Respondent

ALAN AND JOANNE MITCHELL Third Respondent

Hearing:	17-18 November 2014
Counsel:	S E Hughes as Litigation Guardian for Victoria McDonald A Jacobs and R Rutherford for First Respondent C J Nicholls and C Leader for Second Respondent J F Sanders for Third Respondent A M Courtney for Child J L Wademan for Non-kin caregivers
Judgment:	5 December 2014

JUDGMENT OF WILLIAMS J

HUGHES v MINISTRY OF SOCIAL DEVELOPMENT & ORS [2014] NZHC 3093 [5 December 2014]

[1]      In July this year, the Family Court heard various applications in relation to the long term care of Jacob Mitchell (born on 6 January 2010) and his brother Samuel McDonald (born on 18 August 2013).

[2]      The boys are the children of Victoria McDonald and Gareth Mitchell.  At the time of the Family Court hearing Jacob and Samuel were in the temporary care of John and Lynette Dixon with whom they had been placed by the Ministry of Social Development (the Ministry).   The Ministry applied to make that placement permanent. The Dixons have no kin connection to the boys.

[3]      Meanwhile, the boys’ paternal grandparents, Alan and Joanne Mitchell, also sought custody and parenting orders.  The Mitchells (as I will call them throughout this judgment – I will distinguish them from their son by referring to him as Gareth) are Australians and live in Brisbane.   If the Mitchells were successful, the boys would move permanently to Brisbane.

[4]      Gareth and Victoria are no longer together.  He now lives in Australia with his parents.  He supports his parents’ application for custody and parenting orders.

[5]      Victoria McDonald sought access orders in the Family Court.  She appeared through her Litigation Guardian, Sarah Hughes (also her counsel), for reasons I will explain  below.    Victoria,  her  mother  Katherine  Franklin  and  step-father  Ewan Franklin all generally supported placement with the Dixons.  Such placement would ensure that the boys stayed in New Zealand and that there would be ongoing and regular contact between the boys, their mother and their maternal family.

[6]      In a judgment on 5 August 2014, her Honour Judge Moss granted custody and parenting orders to the Mitchells and dismissed the Ministry’s application for permanent placement with the Dixons.

[7]      Victoria through her Litigation Guardian appeals.  The Ministry and counsel for the boys support her appeal.  The Mitchells and (separately) Gareth, appeared in support of the judgment of the Family Court.

[8]      Having filed an appeal, Victoria sought and obtained a stay of the Family Court orders.1   The boys therefore remain in the care of the Dixons on behalf of the Ministry in the meantime but there is regular contact with Victoria, Katherine (and the boys’ Wellington-based sister Laura).   There is also regular contact with the Mitchells and Gareth.  They have set up temporary residence in Wellington pending resolution of this appeal.

[9]      The hearing before me took almost two days, reflecting both the complexity of the case and the number of parties involved.  The boys are very much in need of certainty in their lives.  They must have an end to the limbo in which they have been placed.

The facts in summary

The key players

[10]     Jacob and Samuel are young.  Jacob will start school next year and Samuel is now a toddler at 15 months.  They are good boys and seem relatively resilient in the circumstances.  Jacob has been in the care of a number of caregivers both kin and non-kin during his lifetime.  Samuel was taken from Victoria a few days after he was born and has never been in the full-time care of his parents.  He has had at least two sets  of  full-time non-kin  carers.    Inevitably therefore,  the boys  have  developed behavioural and stress-related issues arising out of the circumstances of their care and the current uncertainty over future placement.  These issues do not seem to be significant however.  They are being ameliorated as far as possible by commendable co-operation between the boys’ carers and their maternal and paternal families.

[11]     Though  Victoria  is  a  loving  and  devoted  mother,  she  suffers  from  a psychiatric illness that sometimes – and I stress, sometimes – compromises her ability to care for her children.   She has four children in total.   Two older girls (Kelly 13 and Laura 9) who now live with their respective fathers; and the two younger boys  the subject  of this  appeal.   All  have been  subjected to  extensive intervention by both the Ministry and the Family Court.  Her mental health issues are

the reason that Ms Hughes was appointed litigation guardian.

1      Hughes v Ministry of Social Development & Ors [2014] NZHC 2170.

[12]     Though  Gareth  is  equally a  loving  and  devoted  father,  he  has  struggled greatly in his relationship with Victoria to cope with her bouts of unwellness.  Even without Victoria’s issues, he seems generally to have been less resilient than needed when facing the stresses of raising a young family, holding down a job and making good decisions for the benefit of all.   He has often lacked the good judgement required of a father and partner. And he has a troublingly erratic work history.

[13]     Over the years, Katherine has been a patient yet firm support person for Victoria.  She has maintained ongoing and regular contact with Victoria’s children in particular when, due to unwellness, Victoria has been a patient in mental health facilities or when, for the same reason, Victoria’s life turns chaotic.  Katherine has ensured that the two older girls maintain contact with their maternal family and that the girls see their brothers as regularly as possible.  Victoria and the boys have lived with Katherine and Ewan on occasion as circumstances have dictated.

[14]     On the other side, Alan and Joanne are 69 and 73.  They have been patient supporters of Gareth and (when they were together) Victoria.   They have visited New Zealand on 15 occasions in the last three or four years, most visits to see their grandchildren and to deal with managing relationships between the paternal family and officialdom over the care of the boys.   Some visits have been for extended periods.  They have committed a great deal of time, energy and money to supporting the boys and Gareth.   They are deeply committed to the idea of raising the boys themselves with the help of Gareth and their other children.

[15]     John and Lynette Dixon have had care of the boys since March this year. They are the second of the boys’ “non-kin carers” in the period since they were uplifted in August last year.  The Dixons have had full-time care of the boys for nine months.  All parties accept that they are a wonderful couple and that they are loving and competent caregivers for the boys.

[16]     Inevitably over the period of the placement, the boys and the Dixons have developed attachments, especially in the case of Samuel for whom that nine month period represents more than half of his life.   The Dixons love the boys and want them to remain in their permanent care.   They support the Ministry’s application

accordingly.   But, if they are successful, they have made it clear that they do not wish to cut off contact between the boys and their blood families.  Rather, they say that the fostering of ongoing healthy relationships between the boys and their maternal and paternal families is important to the boys’ development.

A truncated chronology

[17]     Victoria met Gareth in April 2009 and they moved in together the following month.  Victoria had for much of that year been engaged with the Ministry and the Family Court over the care of her two daughters Kelly and Laura.  A family group conference had been held in March 2009 over the question.   The Family Court finally made orders in favour of Kelly and Laura’s respective fathers in December

2009.

[18]     The relationship between Victoria and Gareth seems to have been rocky from the outset.   Jacob was born in January 2010.   Toward the end of 2010, Victoria’s family doctor referred her to community mental health services because she had become mentally unwell.  This reference followed a difficult year in which Victoria obtained a protection order against Gareth.   The order was finally discharged in November of that year.   At the time, Victoria also (wrongly) feared (or perhaps became fixated on  the idea) that  she had  cancer.    She underwent  a number of invasive procedures.   Those treating her came to the view that her concerns were delusional.  At the end of the year, Victoria was still under the care of community mental health.  Gareth moved to Wairarapa in the hope that they could set up a fruit juice business there.  It seems the business did not pan out.

[19]     As Judge Moss notes, the relationship between Victoria and Gareth reached crisis in January 2011 when Gareth was arrested and charged with intimidation and cruelty to animals.  The charges related to a confrontation between the couple over the care of kittens at their address.   Following a defended hearing in June 2011, Gareth was found guilty but was discharged without conviction.   Victoria became deeply distressed over the whole experience and was admitted to hospital involuntarily.   Gareth, it seems, was equally scarred.   Judge Moss described his emotional response to the episode as “disproportionate”.

[20]     At the end of June 2011, the Ministry applied for a declaration that Jacob was a child in need of care and protection. The Ministry also obtained an interim custody order  under  s 78  of  the  Children, Young  Persons  and  Their  Families Act  1989 (CYPFA).  Victoria was discharged from care in July and returned to Wellington to live.   Jacob, who had been placed elsewhere was returned to his parents’ care but subject to the custody order in favour of the Ministry.   In August and September

2011 a family group conference and mediation were held.  Following the mediation the declaration earlier sought (that Jacob was in need of care and protection) was made by consent.

[21]     At this point Gareth and Victoria separated, with Victoria and Jacob moving to Katherine’s home.   Gareth stayed on at the former home of the couple at Strathmore Park in Wellington.

[22]     In February 2012, the Family Court made final custody orders for Jacob in favour of the Ministry under s 101 CYPFA.  Despite the orders, Victoria nonetheless retained day-to-day care of Jacob.

[23]     By June 2012, Victoria was again unwell and Gareth took over Jacob’s care. In July, Gareth applied for orders granting him day-to-day care of Jacob.   It was generally hoped (even by the Ministry at that stage) that Gareth would take over long term  care  of  Jacob.    That  failed,  the  Judge  records,  because  Gareth’s  housing situation was unstable and his focus seemed to shift from parenting Jacob to the idea of re-establishing his relationship with Victoria.  This, all seemed to agree, was part of Gareth’s wider strategy of reuniting his family back into a single unit.   This became his all consuming objective.  Jacob’s immediate needs were relegated in the queue behind this objective.   By the end of July, the Ministry was no longer advocating Gareth as a care solution.

[24]     But by August 2012, the situation changed markedly.   Victoria and Gareth unilaterally took Jacob to Australia intending the move to be permanent.  Though the Ministry had formal custody of Jacob, it was not advised. When Ministry staff found out, they were very concerned for Jacob.

[25]     Between August 2012 and March 2013, Gareth, Victoria and Jacob moved from Brisbane to Darwin to Cairns (where Gareth was raised), back to Brisbane and then north to Stradbroke Island in search of work, financial independence and family stability.  Gareth met with only limited and temporary success on the work front.  On Stradbroke Island, Gareth obtained work driving buses, but that did not last.  They then tried to open a bar/restaurant on the island but that too failed.  The relationship again took a turn for the worse.

[26]     Victoria left Gareth and Stradbroke Island in February 2012 taking Jacob with her.   She fetched up at an emergency shelter in Brisbane two days after a missing person’s report was filed by Gareth.  By this time Victoria was also pregnant with Samuel.

[27]     Meanwhile the Ministry in New Zealand prevailed upon Queensland child protection authorities to undertake (on the Ministry’s behalf) a “Kinship-Whanau Carer Assessment” of the Mitchells.  The assessment was the work of a Queensland social worker, Shirley Roy, pursuant to an intergovernmental agreement styled the Protocol  for  the  Transfer  of  Care  and  Protection  Orders  in  Proceedings  and Interstate Assistance 2007.  Ms Roy completed her assessment in November 2012.

[28]     Back in New Zealand, the Ministry social worker responsible at the time for Jacob’s welfare was Allan Treacher.2    Mr Treacher said that the assessment of the Mitchells was arranged as a kind of an emergency stopgap measure because the Ministry had  formal  custody orders  in  New  Zealand  but  Jacob  was  out  of  the jurisdiction.   It was, he said, intended to be focused on the Mitchells’ ability to support Gareth in his role as carer, rather than to assess the Mitchells as lead carers. In the event, by the time the assessment was completed, Victoria, Gareth and Jacob had left Brisbane and headed north.  Nonetheless, it became important evidence in

the case before Judge Moss because it was the only independent assessment before

her of the Mitchells’ suitability, at any level, as caregivers for the boys.

2      In the early stages he was directly responsible for Jacob, and more latterly was the manager of the responsible social worker Clare Briggs.

[29]     The  assessment  ran  to  22  pages  and  was  generally  supportive  of  the

Mitchells.  It concluded:3

… the assessor is of the view that Mr and Mrs [Mitchell] are willing and able to  provide  family-based  care  and  protection  to  their  paternal  grandson, [Jacob McDonald-Mitchell] and as such are deemed suitable to be approved as kinship carers for the primary placement of [Jacob].

[30]     While  supportive  of  the  Mitchells,  the  assessor  expressed  a  number  of concerns in relation to Gareth and Victoria, and their impact on Jacob’s wellbeing. The  assessor  described  Gareth  and  Victoria’s  relationship  as  “co-dependent”. Ms Roy recommended that Gareth undertake a mental health assessment and that Victoria should be provided with counselling and other support to deal with her trauma.

[31]     In March 2013, Victoria and Jacob returned to New Zealand to live with Katherine.   Gareth came to New Zealand for a short while in July but returned to Australia after a fortnight.  He came back to New Zealand in August around the time of Samuel’s birth and took Jacob into his day-to-day care.

[32]     Samuel  was  born  on  18 August.    On  the  21st,  the  Ministry  obtained  a declaration that Samuel was a child in need of care and protection, together with an interim custody order under s 78 and an order under s 205 preventing his removal from New Zealand.

[33]     The boys were uplifted by the Ministry the next day in what can only be described as poorly managed and harrowing circumstances.

[34]     Unsurprisingly, Victoria became very unwell as a result and required mental health treatment.  In the meantime, the Family Court directed under s 178 CYPFA that Dr Justin Barry-Walsh provide a psychiatric report in relation to Gareth and Victoria, and that Mr Nigel Fairley provide a psychological report in relation to them.  Both reports were completed in December 2013.

[35]     Meanwhile, from November 2013 until March 2014, the boys were placed in the temporary care of John and Andrea Lopdell.  In March this year, the Dixons took over and have had the children ever since.

[36]     I note here, because it is a matter that takes on some importance later, that the Dixons say they were told by the Ministry from the outset that the placement would be permanent.  They say they had taken the boys in, believing that to be the case. Their perspective in this regard is corroborated by Mr Fairley.   He said that in November the Ministry also communicated to him that it had a clear plan to place the boys outside the family on a permanent basis.

[37]     Thus, when the matter came before the Family Court, the Ministry sought permanent placement with the Dixons but the Mitchells wanted to take the boys to Australia.

The decision

[38]     In a comprehensive decision, Judge Moss concluded that the boys should go to their grandparents in Australia.  She made orders under CYPFA:

(a)      Declaring that Samuel was a child in need of care and protection (a similar declaration had  already been  made in  relation to  Jacob in

2011).

(b)      That a plan be established to facilitate Victoria’s supervised contact

with the boys when they were visiting New Zealand.

(c)      Discharging previous orders granting custody and care to the Ministry, and discharging the prohibition on removal of the boys outside the jurisdiction.

(d)      Dismissing Victoria’s application for access.

[39]     Orders were also made under the Care of Children Act 2004 (COCA):

(a)       Granting day to day care of Jacob and Samuel to the Mitchells. (b)    Making the Mitchells additional guardians.

(c)       Granting  Gareth  reasonable  contact  as  may  be  agreed  with  the

Mitchells.

(d)Granting Victoria supervised contact in Australia as may be agreed with the Mitchells.

(e)      In New Zealand, requiring the boys to visit at least three times to enable contact with Victoria, Katherine, Kelly and Laura, such contact to be facilitated by the Ministry and through an approved supervisor.

[40]     The learned  Judge found  that  the  Mitchells  were excellent  candidates  to undertake parenting responsibilities  for the boys.   The positive reasons  for that choice were succinctly set out in the judgment as follows:4

·     They have stable accommodation and personal credentials which appear to render them fit as caregivers.   They hold the necessary blue card. The grandmother has extensive experience working in day care centres with small children.

·     The kinship assessment undertaken by the Queensland equivalent of Child, Youth and Family in 2012 concluded that they would be well positioned to care for these children.

·     The observations of the Queensland Authority and of the Ministry in New Zealand are that the grandparents are commendably devoted to and connected with their grandchildren.

·     The grandparents’ behaviour since [Jacob’s ] birth.  This has included many visits to New Zealand, full participation in the formal Ministry processes, support from afar and hands on at times of difficulty, and co- operation with the Ministry in the very difficult period when the mother and father took [Jacob] to Australia in 2012.

·     The support which the grandparents have from their other children who would provide backup for the care of the boys in the event that a contingency plan is required.

·     The   adroit   way   in   which   the   grandparents   maintained   a   good relationship with the Ministry, despite the Ministry’s decisions which did not favour their son caring for [Jacob].

·     They have demonstrated many times a commitment to consult with, support and assist the parents.   Their decision to exclude the mother from their home unless she is well engaged in mental health treatment is wise and necessary to protect the children.   They accept the need for communication with the mother over guardianship issues.

[41]     The risks in such placement were also summarised:5

The disadvantages to the grandparents having the care of the boys are as follows:

·     The grandparents are 69 and 73.

·     The grandparents have been less vocal in their disapproval of some of their son’s decisions to the Ministry than would have reassured the Ministry.

[42]     It is appropriate to note here that the learned Judge accepted there was a paucity of evidence about the Mitchells’ ability to manage the boys and Gareth in circumstances where they (the Mitchells) are to perform parental functions.  Expert psychologist, Mr Fairley, considered that there was a risk that the Mitchells would not cope with the additional duties given their age.   He considered that a reconciliation between Gareth and Victoria in Australia remained a genuine possibility, while Victoria simply turning up at the Mitchells’ home one day was, he felt, inevitable.   Either scenario would, in different ways, and to different degrees destabilise the household and the Mitchells’ parenting authority.   That would inevitably take the situation back to some version of the chaos that had ruled the boys’ lives in the past.   Such risks were, in all, too great to be run, he suggested. Ministry social worker Mr Treacher echoed these concerns from his perspective as the boys’ case manager.

[43]     Dr  Barry-Walsh  was  more  circumspect  because  Gareth’s  departure  to Australia and  refusal  to  allow him  access  to  Gareth’s  personal  and  background information  made  a  full  assessment  impossible.    But  he  too  expressed  muted concerns in relation to Gareth’s ability to perform parenting functions.   The only direct evidence before the Family Court of the Mitchells’ parenting ability was the

assessment undertaken in Queensland by the social worker Ms Roy.   While that addressed some issues, the experts were concerned that it was insufficient in light of the risks.

[44]     All  of  this  evidence  was  before  the  Judge.     She  assessed  the  matter differently.  On the question of age, the Judge considered that, though aged 73 and

69, the Mitchells were fit and well.  She was impressed by the fact that the family had discussed what support would be needed as the Mitchells’ years advanced, and they had agreed that Gareth and his siblings would step in to support their parents as needed and would take over when required.

[45]     On the second point – the dynamic between the Mitchells and Gareth – considerable concern had been voiced by the Ministry about whether the Mitchells could  transition  psychologically from  grandparenting  to  parenting  while  Gareth, upon whom the Mitchells appeared to dote, was resident in the home.

[46]     Judge Moss too had those concerns.  Gareth had had day-to-day care of Jacob with the Ministry’s blessing on two occasions and had failed both times to care well for him.   She nonetheless could not decide whether Gareth was “innocently ill- equipped” for the difficult circumstances in which he found himself or had more profound “personality functioning” concerns that might speak to his long term unsuitability in parental roles.   The question thus became whether the Mitchells could  effectively  shield  the  boys  from  the  risks  Gareth  presented  if  they  were realised.

[47]     The Judge pressed both Alan and Joanne Mitchell as to their ability and willingness to control their son.  And she pressed Gareth as to whether he would comply with his parents’ directions.  She was, in the end, satisfied that the Mitchells perceived the risk they faced, would be “vigilant” in that respect, and would exert their authority over Gareth.   She was also satisfied Gareth accepted that while he would have a support role in the home, the final authority over the boys now lay with

his parents.  He promised to be ‘obedient’.6

[48]     That said, the Judge would clearly have preferred the comfort of ongoing agency supervision of the dynamic in the household.  But the cross-border context meant this could only be done in Queensland pursuant to a decision by the Chief Executive of the Ministry to transfer an order for supervision to Queensland.7    The Ministry however had made it clear that it did not support placement in Brisbane on any terms.   The Chief Executive would certainly not be making any decision to

transfer a New Zealand order in relation to the Mitchells.   Rather unsatisfactorily, this stand-off meant that the Judge then was left to make non-binding recommendations to the Mitchells and Gareth.  She said:8

The reservations about the father’s capacity to prioritise the boys’ needs, and to balance the various tasks to undertake parenting is likely to need further assessment.  I recommend that.  I expect the father and the grandparents to arrange and participate in the assessment of the father’s capacity.  Similarly, I recommend  both  the  grandparents  and their  son  source  and  undertake specific training in assisting everyone to transfer the responsibility from father to grandparents and vice versa.

[49]     On appeal, the Mitchells advised me, via counsel, that they had acted on the recommendations but the training had been interrupted by the need to be present in New Zealand for the appeal.

[50]     The Judge concluded that when, as here, the Court has the option of a safe kin placement and an equally safe non-kin option, kin placement ought to be given greater weight.  This, the Judge considered, was a requirement of the CYPFA. There was no question that the Dixons were caregivers with excellent credentials.   She said:9

Placement with non-kin of high calibre meets the welfare and best interests

standard and the protection from harm mandate …

[51]     But the Judge considered that was not enough.  It would require the Court to discount the kin-focused guidance of ss 5 and 13 of the Act.  Her reasoning was as

follows:10

7      CYPFA 2004, s 207D.

8 At [150].

9 At [128].

Where there is a non-kin placement which is safe and a kin placement which is  safe,  the  principles  of  CYPFA still  give  persuasive  weight  to  a  kin placement over a non-kin placement.  The social science in favour of that proposition is well established.   Children in non-kin foster placement face risks of instability, transience, loss of personal identity and loss of cultural identity. Although not all of these risks will eventuate, the documentation of heightened risks in all of these fields is consistent over years and features in the underpinning policy behind ss 5 and 13.

[52]     Thus, having concluded that the risks in relation to Gareth (including the possibility of reconciliation between Gareth and Victoria) were manageable and not significant, the Judge essentially concluded that the kin and non-kin options were roughly equal in terms of safety and wellbeing, but that in those circumstances a kin placement will always win.  Placement with grandparents was, she considered, as a general proposition “consistent with our cultural, spiritual and social values”.11

[53]     Since the hearing and the judgment on 5 August, a further report has been undertaken. A “Family/Whanau Caregiver Assessment” was completed by Ms Nuala O’Connor, a caregiver social worker in Queensland.  This report was obviously not available to Judge Moss.  It was however, placed on the record before me and treated by all parties as admissible updating evidence.

[54]     The report was very positive with regard to the Mitchells.   The reporter described the couple as “resilient”.   It suggested that the Mitchells had properly understood, and taken appropriate steps in respect of, the issue in relation to Gareth, the transition from grandparenting to parenting roles, and the need for contingency plans given their age.

[55]     The report’s conclusions were as follows:

Mr and Mrs [Mitchell] aged 74 and 69 years respectively, are the paternal grandparents of [Jacob] and [Samuel] and have applied to become the permanent caregivers for the children; thus the proposed placement would meet the children’s needs in that the children would remain with their birth family.

[Jacob] and [Samuel] have previously had contact with Mr and Mrs [Mitchell].   The couple have unsupervised access with the children when they visit New Zealand.   [Jacob] has also previously resided with Mr and Mrs [Mitchell] when he was in his parents care.  Mr and Mrs [Mitchell] have

recently applied  to  care  for  [Jacob]  and  [Samuel], as  a  response to  the Ministry seeking Home for Life orders for the children; meaning the children were to be placed permanently in a non-kin placement.

It  is  evident  in  speaking with the applicants that they have  a  very real commitment to the long term care of their two grandchildren and that they had the skills and knowledge to provide good enough parenting and enjoy a strong support network.  They have given some thought to the needs of the children (given their experience to date) and how these needs may be dealt with.   In addition the applicants appear to have a plan in place for the continued care of the children in the event that they find themselves in a position where they are no longer able.

Factors to consider with this application are the respective ages of the applicants and them being able to realistically provide adequate long term care for the children.  In saying that, they have articulated a contingency plan involving other family members (that are known to the children) who will assume care when they are no longer able.

I recommend that Mr and Mrs [Mitchell] be approved as family/whanau caregivers for [Jacob] and [Samuel McDonald].

Appeal standard and grounds

[56]     Appeals to this Court pursuant to s 143 of COCA are general appeals by way of rehearing.  It is uncontroversial that my discretion on appeal is not constrained in the way that would be the position if this were an appeal against the exercise of a discretion.12

[57]     The notice of appeal purports to rely on COCA only and there is no formal appeal against the decision under the CYPFA to dismiss the Ministry’s application. Nonetheless the orders sought in place of those made by the Family Court are orders under ss 78 and 101 CYPFA ensuring that the boys remain in the custody of the Chief Executive.  The appeal is, in substance therefore, an appeal under the CYPFA as well.

[58]     Appeals under the CYPFA are also general appeals in form, so there is no inconsistency in jurisdictional parameter in the way the matter is bought before me.13

12     See Kacem v Bashir [2011] 2 NZLR 1 at [32].

13     See Heath J’s discussion of the application of Austin Nicholls & Co Inc v Stichting Lode to Family Court appeals in B v F [2010] NZLR 67 (HC) (at [7]-[8]). As far as I can see, none of the evaluative judgments distinguished in Kacem v Bashir are required under these provisions.

[59]     Ms  Hughes  filed  an  amended  notice  of  appeal  on  8  September  2014 overtaking the original notice of appeal drafted and filed by Victoria herself.  The amended grounds are as follows:

1.The Court gave insufficient weight to the interests of the children, in particular [Jacob’s] attachment to Ms [McDonald], in an attempt to resolve matters in a timeframe appropriate to [Samuel];

2.The Court had insufficient information regarding the ability of the Grandparents, the third respondents, ability to parent, relationship with the children, and ability to manage their Son’s expectations;

3.The  Court  has  insufficient  information  regarding  the  Father,  the second respondent, as he left New Zealand prior to the completion of the psychological report, despite acknowledging he will play a significant role in parenting the children;

4.The   applications   filed   by   the   Third   respondent’s   (sic)   were considered  by  the  Court  at  the  hearing  only  4  weeks  later,  the hearing having been set down in February 2014.

5.The Court gave greater weight than was warranted to the need for the boys to be placed with biological family, as opposed to non kin, and insufficient weight to the involvement of the Maternal Family, and the boys’ sibling relationship.

[60]     In addition at the hearing before me, the Ministry argued that this was in fact a COCA relocation case and the Court had misframed the issues it was required to address by treating the matter merely as a placement case.  Although not formally a separate ground of appeal, and although there is some overlap between this head of argument and the grounds advanced by the appellant, I have found it more useful analytically to address relocation separately.

[61]     I turn now to address each pleaded ground of appeal and the relocation issue. At the end of this analysis, I add a specific section on the boys’ views and interests. These matters were, understandably, advanced with diligence by counsel for the boys,  Ms Courtney.    I  begin  however  with  a  brief  discussion  of  the  relevant legislation.

The legislation

[62]     This  case  required  consideration  of  two  interlinked  but  distinct  statutes: CYPFA whose focus (for the purpose of this case) is State intervention to keep

children safe; and COCA, whose focus is the adjustment, in the private sphere, of rights and responsibilities in relation to children.

[63]     Under CYPFA, the Chief Executive of the Ministry has extensive powers to intervene following a declaration by the Family Court that a child is in need of care and protection.  The preoccupation of the Act is the safety of the child but within that, clear in-principle limits are placed on the permissible extent of State intervention.  Under COCA, private disputes between parents, guardians, family and whanau over children are resolved through the use of guardianship, parenting or contact orders under Part 2, although child safety remains a decisive consideration

even under COCA.14    The complication in this case is that both Acts are in play

simultaneously.

CYPFA

[64]     Section 6 sets out the Act’s first and paramount consideration:

In all matters relating to the administration or application of this Act … the welfare and interests of the child … shall be the first and paramount consideration, having regard to the principles set out in sections 5 and 13 of this Act.

[65]     The principles in ss 5 and 13 provide a menu of detailed sub-considerations aimed at giving better direction to those charged with achieving the s 6 objective. Section 5 provides as follows:

Subject to section 6, any court which, or person who, exercises any power conferred by or under this Act shall be guided by the following principles:

(a)       the principle that, wherever possible, a child's or young person's family, whanau, hapu, iwi, and family group should participate in the making of decisions affecting that child or young person, and accordingly that, wherever possible, regard should be had to the views of that family, whanau, hapu, iwi, and family group:

(b)       the principle that, wherever possible, the relationship between a child or young person and his or her family, whanau, hapu, iwi, and family group should be maintained and strengthened:

(c)       the principle that consideration must always be given to how a decision affecting a child or young person will affect—

(i)        the welfare of that child or young person; and

14 See discussion below at [76].

(ii)       the stability of that child's or young person's family, whanau, hapu, iwi, and family group:

(d)       the principle that consideration should be given to the wishes of the child or young person, so far as those wishes can reasonably be ascertained, and that those wishes should be given such weight as is appropriate in the circumstances, having regard to the age, maturity, and culture of the child or young person:

(e)       the principle that endeavours should be made to obtain the support of—

(i)        the parents or guardians or other persons having the care of a child or young person; and

(ii)       the child or young person himself or herself—

to  the  exercise  or  proposed  exercise,  in  relation  to that  child  or  young person, of any power conferred by or under this Act:

(f)        the principle that decisions affecting a child or young person should, wherever practicable, be made and implemented within a time-frame appropriate to the child's or young person's sense of time:

(g)       the principle that decisions affecting a child or young person should be made  by  adopting  a  holistic  approach  that  takes  into  consideration, without limitation, the child's or young person's age, identity, cultural connections, education, and health.

[66]     I note that in addition to a focus on family, whanau, hapū and iwi, paragraphs (a), (b) and (c) also mention an entity called the “family group”.  This is defined in s 2.  It provides:

Family group in relation to a child or young person, means a family group, including an extended family,—

(a)      in which there is at least 1 adult member—

(i)      with whom the child or young person has a biological or legal relationship; or

(ii)     to  whom  the  child  or  young  person  has  a  significant psychological attachment; or

(b)      that  is  the  child's  or  young  person's  whanau  or  other  culturally recognised family group.

(my emphasis)

[67]     Thus, the linkage between adults and the child within a family group can either be based on kinship or psychological attachment.  I point this out here because the appellants argue that the Judge was wrong to privilege the boys’ kin group over non-kin carers.  I will come back to this issue below.

[68]     In any event, the essential ideas reflected in s 5 are that:

·     the family or family group should participate in decision-making under the Act;

·     family   or   family   group   relationships   should   be   maintained   and strengthened if possible;

·     the effect of a decision under the Act on the child’s welfare and the

stability of his or her family or family group must be considered;

·     the wishes of the child must be considered in light of his or her age, maturity and culture;

·     the Court should try to secure the support of parents, guardians or those having care of the child, as well as the child him or herself for any decision under the Act;

·     the need to make decisions within a timeframe appropriate to the child’s

own sense of time;

·     a holistic approach is required, including (relevantly) considering the

child’s identity.

[69]     These considerations appear to reflect deeper values that should be expressed in all decision-making under the Act – maintaining and engaging family in decisions; ensuring the child and his or her perspective (including time perspective) are in focus; keeping focus also on the whole child in all of his or her circumstances; and so on.  Many (but not all) of these principles are process based.  They relate to how a decision should be made and rather less on what the decision should be.

[70]     Section  13  is  subject  to  ss 5  and  6.    It  (relevantly)  applies  to  care  and protection proceedings under Part 2.  That is, to the basis upon which and procedures

by which, the State is empowered to intervene in family life in order to protect children from harm. That section relevantly provides:

(1)       Every court or person exercising powers conferred by or under this Part, Part 3 or 3A, or sections 341 to 350, must adopt, as the first and paramount consideration, the welfare and interests of the relevant child or young person (as required by section 6).

(2)       In determining the welfare and interests of a child or young person, the court or person must be guided by the principle that children and young people must be protected from harm and have their rights upheld, and also the principles in section 5 as well as the following principles:

(a)       [Repealed]

(b)       the principle that the primary role in caring for and protecting a child or young person lies with the child's or young person's family, whanau, hapu, iwi, and family group, and that accordingly—

(i)        a child's or young person's family, whanau, hapu, iwi, and family group should be supported, assisted, and protected as much as possible; and

(ii)      intervention into family life should be the minimum necessary to ensure a child's or young person's safety and protection:

(c)       the principle that it is desirable that a child or young person live in association with his or her family, whanau, hapu, iwi, and family group, and that his or her education, training, or employment be allowed to continue without interruption or disturbance:

(d)       where a child or young person is considered to be in need of care or protection, the principle that, wherever practicable, the necessary assistance and support should be provided to enable the child or young person to be cared for and protected within his or her own family, whanau, hapu, iwi, and family group:

(e)       the principle that a child or young person should be removed from his or her family, whanau, hapu, iwi, and family group only if there is a serious risk of harm to the child or young person:

(f)        where a child or young person is removed from his or her family, whanau, hapu, iwi, and family group, the principles that,—

(i)        wherever practicable, the child or young person should be returned to, and protected from harm within, that family, whanau, hapu, iwi, and family group; and

(ii)       where the child or young person cannot immediately be returned to, and protected from harm within, his or her family, whanau, hapu, iwi, and family group, until the child or young person can be so returned and protected

he  or  she  should,  wherever  practicable,  live  in  an appropriate family-like setting—

(A)      that, where appropriate, is in the same locality as that in which the child or young person was living; and

(B)      in which the child's or young person's links with his or her family, whanau, hapu, iwi, and family group are maintained and strengthened; and

(iii)      where the child or young person cannot be returned to, and protected from harm within, his or her family, whanau, hapu, iwi, and family group, the child or young person should live in a new family group, or (in the case of a young person) in an appropriate family-like setting, in which he or she can develop a sense of belonging, and in which his or her sense of continuity and his or her personal and cultural identity are maintained:

(g)       where a child or young person cannot remain with, or be returned to, his or her family, whanau, hapu, iwi, and family group, the principle that, in determining the person in whose care the child or young person should be placed, priority should, where practicable, be given to a person—

(i)        who is a member of the child's or young person's hapu or iwi (with preference being given to hapu members), or, if that  is  not  possible,  who  has  the  same  tribal,  racial, ethnic, or cultural background as the child or young person; and

(ii)       who  lives  in  the same  locality as  the  child or  young person:

(h)       where a child or young person cannot remain with, or be returned to, his or her family, whanau, hapu, iwi, and family group, the principle that the child or young person should be given an opportunity to develop a significant psychological attachment to the person in whose care the child or young person is placed:

[71]     Of particular importance in this case are the principles:

·     that children must be protected from harm, their rights upheld and their welfare promoted;

·     that the primary caring role belongs to the family or family group and intervention in that relationship should be the minimum necessary to ensure the child’s safety;

·     that it is desirable for the child to live “in association with” his or her family or family group, and that the child’s education continue uninterrupted;

·     that where a child is in need of care and  protection, this should be provided with the family or family group wherever practicable;

·     that removal should only occur where there is a serious risk of harm;

·     that where removal does occur, the child should be returned to family or family group wherever practicable;

·     that  where  immediate  return  is  not  possible  the  child  should,  if practicable, be placed in an appropriate family-like setting in the same locality   with   links   to   his   or   her   family   being   maintained   and strengthened;

·     that where return is no longer possible, the child should live in a new family group where he or she can develop a sense of belonging and where his or her sense of continuity and cultural identity is maintained;

·     that where return is not possible, an opportunity should be given for the child to develop a significant psychological attachment to his or her new caregiver.

[72]     Though these values are subordinate to ss 5 and 6, their terms are more detailed and directive in nature.  They are more outcome than process focused.  The section is structured so as to reflect a gradual limitation on options as the risk of harm to the child increases.  Permanent placement outside the family or family group is the last resort.

COCA

[73]     Under s 4(1) of COCA, the welfare and best interests of the child “must be”

the first and paramount consideration in proceedings under the Act, and in any other

proceedings involving guardianship, day-to-day care or contact in respect of a child. Section 4(2) adds (if there were any doubt) that this objective must be considered in the “particular circumstances” of the child.

[74]     Section 4(5) requires the Court, in considering the child’s welfare and best

interests, to take into account:

(a)       the principle that decisions affecting the child should be made and implemented within a timeframe that is appropriate to the child’s sense of time;

(b)       any of the principles specified in s 5 that are relevant to the welfare and  best  interests  of  the  particular  child in  his  or her  particular circumstances.

[75]     The s 5 principles are also worth quoting in full. They are:

(a)       a child's safety must be protected and, in particular, a child must be protected from all forms of violence … from all persons, including members of the child's family, family group, whānau, hapū, and iwi:

(b)       a child's care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:

(c)       a child's care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:

(d)       a child should have continuity in his or her care, development, and upbringing:

(e)       a child should continue to have a relationship with both of his or her parents, and that a child's relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:

(f)       a child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

[76]     Of particular relevance in this case is the prime importance of safety, the value of continuity in care, of maintaining relationships with both parents, of preserving family and family group relationships and preserving and strengthening the identity of the child.   As Arnold J noted in the Court of Appeal in Bashir v Kacem, s 5 provides “a structure or framework for the consideration of what best

serves a child’s welfare and best interests.”15   The Supreme Court in the same case took no issue with that approach, confirming also that when child safety is engaged on the facts of a particular case, that consideration will be decisive because s 5 requires that this need “must” be met.  Achieving outcomes consistent with other principles in s 5, if engaged on the facts, is considered to be desirable (“should” is used) but not mandatory.   The Supreme Court said that the nature of ss 4 and 5 makes each assessment under the Act intensely fact-specific with no assistance being

derived from judicially imposed glosses on the statutory language.16

[77]     Finally under COCA, I note s 6(2) which provides that in guardianship, care or contact proceedings–

(a)       a child must be given reasonable opportunities to express views on matters affecting the child; and

(b)      any   views   the   child   expresses   (either   directly  or   through   a representative) must be taken into account.

[78]     It can be seen that there is, in general, a good deal of overlap in the principles these two statutes bring to bear in their respective spheres.  Indeed, as in this case, there must often be situations where the two Acts overlap in practice as well.  After all if State intervention under CYPFA is to be temporary, COCA orders may very well be required to settle arrangements once the Ministry has exited the situation.  In other cases, COCA orders may well run in parallel with an ongoing, though reduced, Ministry role.  But the statutes are not fully interchangeable.  Compliance with each Act requires those exercising powers under them to be very conscious of which functions under which Act are being exercised.

[79]     With  that  rather  complex  statutory guidance  in  mind,  I turn  now  to  the grounds of the appeal, beginning as I indicated, with relocation.

15     Bashir v Kacem [2010] NZCA 96, [2010] NZFLR 865 at [52].

16     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [35].

Is this really a relocation case?

Ministry position

[80]     The Ministry submitted that this was, in substance, a case about whether the boys should be relocated from Wellington to Brisbane.   The Ministry argued that framing the question in that way imported a different analytical framework.   The Ministry pointed to two Family Court cases that had approached applications involving contests between Ministry sponsored non-kin caregivers and parents as if they were in substance relocation cases and suggested I should follow the same

approach.17   The Ministry said the leading relocation case Bashir v Kacem therefore

applied even though it involved a contest between biological parents.18   The Ministry also pointed to leading High Court decisions on relocation Brown v Argyll,19 and of particular relevance the Ministry suggested, Carpenter v Armstrong.20

[81]     The Ministry submission was that although the Judge identified the relevance of ss 4 and 5 of COCA, she failed to follow through with a detailed assessment of s 5 factors.  This failure to focus on the detailed questions posed by s 5 caused the Judge (effectively) to grant relocation orders in favour of the Mitchells without sufficient evidence or justification.

Analysis

[82]     I agree that this was a relocation case.  The effect of the Judge’s orders was, after all, to require the boys to shift to Brisbane.  Section 5 was thus engaged as the Judge knew.  But s 5 is engaged in all COCA cases and it is difficult to see how the relocation label might have helped her make the assessment.  And most particularly, this was a relocation case only in part.   It is also a case about whether the boys should, for the first time, be permanently placed in the care of Ministry sponsored caregivers.    That  issue  imported  CYPFA into  the  equation  including  the  limits

contained in s 13 of that Act on when temporary removal to Ministry caregivers may

17     Chief Executive Ministry for  Social Development v  NC  FC Wanganui FAM-2004-083-374,

24 May 2007; H v Ministry for Social Development FC Christchurch FAM-2008-1009-3115,

29 June 2009.

18     Bashir v Kacem, above n 15; Kacem v Bashir, above n 16.

19     Brown v Argyll (2006) 25 FRNZ 383.

20     Carpenter v Armstrong HC Tauranga CIV-2009-470-511, 31 July 2009.

be transformed into a permanent placement.  This was not a case in which a simple choice had to be made between assessing the effect on a child (and on his or her contact and care arrangements), of a decision by one parent to move to another town or country.

[83]     Ms Jacobs for the Ministry is right that each of the NC and H decisions in the Family Court have some of the elements present in this case.   But only some of them.  There were also important points of distinction.  In NC for example, the child was in care pursuant to an order under s 31 of COCA, granting guardianship to the Court.  CYPFA obligations were not engaged and there was no potential conflict of values between the two regimes.   Nor was there an alternative offer by a family member  to  provide  care.    The  child,  a  14  year  old  girl,  had  been  in  care  for

11 months.  She suffered from anorexia nervosa and presented a clear risk of relapse if returned to her mother.  One of the non-kin carers was an experienced nurse and counsellor.  On any view of matters, relocation with the non-kin carers was the only viable option in the case of that 14 year old.

[84]   In H, the mother was an incorrigible alcoholic who nonetheless had a psychological attachment with the two older of her three children.  The children had been in the long term care of Ministry-sponsored caregivers for three years.  They were settled and doing well.   Before that, they had been in the care of their grandmother but  she had  passed away.    So,  the children  had  not  been  in  their mother’s care for some considerable time.   Contact with the mother had been somewhat irregular in recent times, largely due, it appears, to her struggling with her affliction.

[85]     Unsurprisingly, the Family Court decided the best interests of the children lay in following the caregivers to Australia when employment opportunities presented themselves there.   But, even though this had been a placement of three years, the Court spent a great deal of time carefully assessing the impact of the move on the childrens’ relationship with their mother.  Only after that assessment was done, did the Court feel able to conclude that the move was justified in the childrens’ best interests.

[86]     I should also briefly mention Heath J’s appellate decision in Carpenter v Armstrong.  This case is of some assistance in relation to the question of sufficiency of information in relocation cases.   Rather than discuss it here however,  I will address it under the sufficiency heading below.

[87]     So the cases I have discussed really do no more than underscore how fact- specific COCA cases are, and how the applicable s 5 principles will, in all cases, be very much reliant on a careful assessment of the facts.  While I agree that there is a relocation element in the present case, I do not agree that this fact in itself provides the answer or even leads to the right questions being asked.  On the contrary, should the Judge have come to the view that this was only a relocation case, that conclusion would have led her Honour into error.

[88]     In truth, whether this is a case about contact, care or relocation, the same statutory principles sourced from both statutes must be applied to the issues as they are posed and the facts as they arise.   I have found labels provide me with little assistance.

Jacob’s attachment to Victoria

Submissions

[89]   The appellant argued that the Court gave insufficient weight to Jacob’s psychological attachment to Victoria.   In particular, Ms Hughes submitted that the Judge failed to give sufficient weight to the conclusion in Mr Fairley’s s 133 report that Jacob’s primary attachment, as at December 2013, was to his mother.

[90]     Counsel for the children supported this submission, pointing to Mr Fairley’s conclusion that “overall” Jacob had really been in the care of his mother for most of his life albeit that this care was occasionally subject to support from the Ministry and others.

Analysis

[91]     The Judge acknowledged that Jacob “was, and remains, emotionally linked to his  mother”21,  but  she  considered  that  this  would  reduce  over  time  as  contact between the boys and Victoria diminished pursuant to the Ministry’s Home for Life policy.22   More recently, and since removal in August last year, Jacob’s position has been more ambiguous.  As the Hutt Valley DHB “Gateway” assessment of August this year suggests, Jacob currently suffers from relative “insecurity in primary relationships”.   He seems to be going through a stage of anxious concerns over where his attachments should lay.

[92]     In any event, the Judge considered that full-time care with the boys’ paternal family was more consistent with their best interests than a non-care arrangement in which the boys are merely kept in the “orbit” of the maternal family.

[93]     I consider that the Judge did take real account of Jacob’s attachment to his mother.   But she was right, in my view, to conclude that Victoria’s role in the foreseeable  future  will  be  contact  rather  than  care-related.   And  even  with  the Dixons’ genuine commitment to maintaining ongoing and regular contact with the maternal family, the current generous contact schedule is unlikely to be maintained or even sustainable going forward.   Contact will naturally diminish even if the Dixons do not plan to follow the Ministry’s formal policy of reducing parental contact to a handful of times a year.  This factor was not, in Victoria’s case, going to count decisively in favour of maintaining non-kin placement in New Zealand.

[94]     I do not uphold this ground of appeal.

21     Ministry of Social Development v RF, above n 4, at [84].

22     Mr Fairley confirmed that high levels of contact with the mother would be unlikely to continue once guardianship and care is resolved.  It would reduce from weekly down to “every now and again” – NOE p109, line 10.   The Dixons have since made it clear that they support more extensive contact than that provided via the Home for Life policy.

Insufficient information

The Mitchells

[95]     Ms Hughes argued that there were too many unanswered questions about the Mitchells to conclude that the risks associated with placing the boys permanently in their care would be acceptable.  Ms Hughes submitted that the Mitchells had blinded themselves to Gareth’s part in the difficulties of the past, and had shifted all blame to Victoria.  This, it was submitted, did not suggest that the Mitchells would or could carefully manage and control the role Gareth would play in the boys’ upbringing.  It showed the Mitchells to be naïve and overly compliant.

[96]     Ms Hughes submitted despite that admitted information deficit, and despite the clear need for an independent agency to maintain a supervisory role, no such protection will be, or can be, put in place.  This, she argued, exposed the boys to unacceptable risk.

[97]     Ms Courtney for the boys echoed these concerns, pointing to the evidence of Mr Fairley that the Mitchells would be unable to keep appropriate boundaries in place if, it transpired, Gareth and Victoria reconciled and lived with the Mitchells or close by.   Nor was there any way of knowing how the Mitchells would cope if Victoria appeared on their doorstep and began to demand a role in the boys’ upbringing.

[98]     In my view, although sufficiency of information in relation to the Mitchells was an issue – the Judge herself confirmed this – counsel have overstated both the extent of insufficiency and its connection to the interests of the boys.

[99]     It is true that neither Mr Fairley nor Dr Barry-Walsh was able, in the time available, to assess the Mitchells.  Their focus was on Victoria and Gareth.  Indeed, the Mitchells did not apply for COCA orders until well after the experts completed their reports for the Court.

[100]   But to some extent the lack  of information can be sheeted home to  the

Ministry itself.  Mr Treacher accepted that the Ministry should have considered the

Mitchells as a possibility earlier, indeed if they had been so considered, they may well have received the placement in November.  Mr Fairley acknowledged that he should have spoken to the Mitchells earlier and certainly after receiving Ms Roy’s Kinship Whanau Carer Assessment in November 2012.  And Mr Fairley confirmed that as late as November last year, the Ministry’s position, communicated to him, was that a non-kin placement was the only option.   The Ministry itself closed its mind to a family placement at a very early stage.

[101]   While it is true that the Mitchells’ application was late (I deal with that question below), they were actively involved with the boys’ throughout their lives. They say they raised with the Ministry the possibility of taking care of the boys as early as November last year and did so again in March and April 2014.

[102]   In any event, the Judge was not entirely bereft of relevant information.  The Mitchells both gave evidence and were extensively cross-examined by Ms Hughes, Ms Courtney  and  Ms Rutherford  (for  the  Ministry).    The  Judge  also  tested  the Mitchells at length with her own questions on the very issues now advanced by the appellant, the Ministry and counsel for the child.   There was also the 22 page Kinship/Whanau Carer Assessment completed by Ms Roy in Queensland at the end of 2012.  It is true that the focus for the Ministry at the time that the assessment was requested was how the Mitchells might cope with having to support Gareth if the boys were in his care.  But in fact, the report ranges wider than this narrow focus as the final conclusion I cited earlier shows. And of course that conclusion is now fully supported by the later Family/Whanau Caregiver Assessment.   That assessment is focused entirely on the Mitchells’ abilities as sole caregivers.  As I have said, though that second report was not before the Judge, I may consider it in forming my own opinion.

[103]   Finally I note that the Judge pressed the experts about these same matters when they gave evidence.  While Mr Fairley expressed concerns about the Mitchells’ age, and the possible impact on their parenting of the boys of Gareth and Victoria whether together or separately, he nonetheless expressed a favourable view on four key questions:

(a)       the Mitchells’ capacity to relate to young children;

(b)their capacity to be involved in the dynamic process of attachment with children;

(c)       their capacity to commit to the children; and

(d)      their capacity to seek assistance when required.

[104]   In my view, the Judge saw the witnesses, heard the evidence and carefully assessed the risks expressed.  She pointed to the Mitchells’ long and practical history of commitment to the boys, to their experience more broadly and to their loyal and supportive family and wider support networks.   The Judge must have been particularly impressed  by  the  steps  the  Mitchells  had  taken  to  decamp  to  New Zealand when needed, to participate in formal Ministry processes, to support Gareth and Victoria, and to co-operate with the Ministry in the difficult period during 2012.

[105]   The Judge, having assessed the Mitchells, Gareth and Victoria first hand, felt that the Mitchells understood very well the scale and gravity of the task they were accepting.   She clearly felt that they would shoulder this new responsibility with solemn commitment.  I can only agree based on my own review of the evidence and reports.

[106]   While  Victoria,  and  to  a  lesser  extent  Gareth,  represent  a  risk  for  the Mitchells as caregivers, it is by no means as big a risk as the appellant and those supporting her appeal suggest.  The information before the Judge, both supportive of the Mitchells and tending to detract from their case, was well sufficient as a foundation for the decision she ultimately made.  I consider that her conclusion was correct.

[107]   I am not troubled by the Court’s inability to direct State supervision of the Mitchells in Brisbane.  As the Judge recorded, experts expressed concerns about the Mitchells’ ability to transition from grandparenting roles to parenting.    She recommended that the Mitchells undertake training, knowing full well that there was

no means of enforcing such a recommendation.  Rather predictably however (given my  assessment  of  the  Mitchells  on  the  basis  of  the  record),  they  did  in  fact commence training and interrupted it only to engage with the current appeal here in New Zealand.  I have every reason to believe that on their return to Brisbane, they will complete the training recommended by the Judge.  The Court does not always have to wield a big stick in order to achieve a particular outcome.

[108]   An additional factor is reflected in s 4(a) of COCA and s 5(f) of CYPFA.  The Judge was required also to “take into account” (COCA) and “be guided” … “wherever practicable” (CYPFA) by, the need to make and implement decisions within a timeframe appropriate to the child’s sense of time.  This consideration was important  to  both  boys  but  particularly  to  Samuel  for  whom  the  prospect  of significant  delay in  order  to  obtain  additional  expert  evidence  would  inevitably expend an appreciable proportion of his young life.

[109]   In this case, I was advised that if the matter were remitted back to the Family Court  for  the  production  of  further  reports  by  Mr  Fairley  and  Dr Barry-Walsh, reports are unlikely to be available before February or March 2015, and a further fixture would need to be found after that.

[110]   Ms Sanders, counsel for the Mitchells, understandably complained that an effective extension of the placement with the Dixons of four to five months would unfairly serve to strengthen the Ministry’s case through enhancing psychological attachments.

[111]   I agree that to allow further delay at this point could have the practical effect of trumping the Mitchells’ case for reasons unrelated to its merit.   I would not support such an outcome unless the risks involved were so great as to require it. As I have said, I agree with the Judge that they were not.

Gareth

[112]   In a similar vein, Ms Hughes argued that there was insufficient information about Gareth’s parenting ability despite both the Mitchells and the Court acknowledging that he will come to play a significant role in parenting the children.

Ms Hughes submitted that the assessment interviews carried out by Mr Fairley and Dr Barry-Walsh were truncated because of Gareth’s unilateral decision to leave New Zealand in the middle of the assessment process.  The Court admitted, Ms Hughes argued, that Gareth was still an unknown quantity and further assessment was required.23      That  was  why  it  was  recommended  that  he  too  undertake  specific

training. The Court acknowledged, counsel submitted, that:24

There is reason for concern about the father, about how disturbed his life has been in the last five years, and about how ineffective he was in protecting [Jacob] and establishing a useful relationship with professional supports and with the mother’s family.

[113]   Ms Hughes pointed to  the fact that both experts expressed doubts about Gareth’s ability as a parent even if, due to the shortened assessments, they could not be sure as to whether their concerns were reflective of deep underlying problems. The Judge (as I have already recorded) put the matter this way:25

I cannot determine whether [Gareth] was innocently ill-equipped for the context  he  was  in,  or  whether  there  are  more  profound  personality functioning concerns.

[114]   Ms Hughes’ submission was that once these concerns were expressed, they should not have been downplayed by the Judge in the way that they were in her final decision.

[115]   Ms  Courtney  supported  these  submissions.    She  submitted,  relying  on Mr Fairley’s evidence, that if Gareth and Victoria reunited, chaos could well follow and the children’s safety could be put at risk.  Gareth’s history, she submitted, was the best available predictor of the future, and none of the experts could confidently conclude that history would not repeat itself here.   Mr Fairley pointed out that an attempt at reconciliation had occurred only two months prior to the Family Court hearing in July.  It was possible, he said, that the relationship should, even now, be

interpreted as “ongoing”.

23 At [150].

24 At [98].

25 At [98].

[116]   I agree, as did the Judge, that Gareth had not been fully assessed and that this was a concern.  But it must be remembered that Gareth was not the applicant.  The Mitchells did hope that over time he could take an increasing role in the boys’ upbringing, but they made it clear that they would be the primary caregivers and they would control his level of engagement with the boys.   As I have said, the Judge pressed both the Mitchells and Gareth about that question.  It was the Mitchells’ in whom the Judge put her trust, not Gareth.  The Judge was impressed, as am I, with the firmness of their resolve in that respect, even if ultimately, all going well, Gareth will come to take on a more significant role as time passes and he proves his worth. In fact, if that is what happens, that will be a good thing for the boys.

[117]   There is also a second factor.  As Arnold J noted in Bashir v Kacem, “past

behaviour can be a good predictor of future behaviour but that is not inevitably so.”26

In this case, even Mr Fairley accepted that the circumstances in which the last attempt at reconciliation in May this year failed, may well be a circuit breaker.  An exchange between Ms Leader, for Gareth, and Mr Fairley expresses the point:

Q:       So   you   would’ve   read   the   recent   Ministry   evidence   and Mr [Mitchell’s] evidence about the incident in May, or the events with   Ms [McDonald]   expressing   –   I   think   they   were   called homicidal thoughts including in relation to Mr [Mitchell]?

A:       Yes.

Q:       Mr [Mitchell], in his evidence, says that that’s been a turning point for him.  He’s adamant the relationship is finally over.

A:       Yes, I read that.

Q:       That really was correct and Mr  [Mitchell]   has, and he remains separated from Ms [Mitchell], would that go some way to allay your concerns in terms of chaos?

A:       Yes, some way, yes.

Q:       There would have to be a period of time. A:        Yes.

[118]   On the question generally of sufficiency of information, Ms Jacobs pressed upon me Heath J’s decision in Carpenter v Armstrong.  This was a relocation case.

26     Bashir v Kacem, above n 15 at [55] (my emphasis).

The mother wished to take the children to live with her in England.   The father opposed.   Heath J considered that the Family Court should have obtained further detailed information before deciding whether the children in that case should be relocated. The sort of information identified was as follows:27

(a)       First, there is a need to identify the developmental milestones for each child over the next five years; or, for as long a period as is possible given the chronological age of the children.

(b)       Second, it is necessary to identify each child’s needs over that time, if they were to meet those milestones.

(c)       Third, consideration should be given to identifying the parent most likely to meet those needs, leaving to one side (at least initially) the country in which that parent will be residing.   Reasons why one parent is more likely than the other to help the children to meet their developmental goals must be articulated.

(d)       Fourth,  what  information  is  available  to  provide  guidance  on whether the children’s needs can best be met in the English Midlands or in the Bay of Plenty?   It will be relatively easy to make that assessment in relation to the Bay of Plenty, but more information may be required for the English Midlands, so that a proper comparison can be made.

(e)       Fifth, the psychologist should be asked to ascertain whether it is feasible to obtain a view from either child on any of those issues.

[119]  There is much to be said for the approach adopted by Heath J in the circumstances of that case.   But this case is not, on its facts, amenable to that approach.   As Judge Moss rightly pointed out, in this case both candidates – the Mitchells and the Dixons – are well able to care for the boys and meet all of their developmental needs as they grow.   The age question  had been considered and addressed through the assistance of family and wider support networks.   And the question of Gareth’s influence had been addressed by way of the Judge testing the Mitchells’ resolve and Gareth’s acceptance.  This was not the sort of case where the information identified by Heath J could have helped the Judge make her decision.

[120]   For the foregoing reasons, I do not consider that the Court had insufficient information in relation to the Mitchells’ ability to perform parenting functions in

relation to the boys.

27     Carpenter v Armstrong, above n 20 at [125].

The Mitchells’ late application

[121]   This ground is essentially a corollary of the insufficient information grounds. The fact that the Mitchells only applied for parenting orders a month before the hearing meant that none of the parties nor either of the experts was focused on their parenting abilities in the lead up to the hearing.

[122]   I agree that there is something in this description of the problem.  But, as I have earlier said,  the  Ministry too  was  at  fault  in  writing the  Mitchells  out  of candidacy for full-time care even though they (the Mitchells) had been present and engaged from the beginning in dealing with the needs of their son and grandchildren and had received a positive caregiver’s assessment in November 2012.  I have earlier pointed to the Mitchells’ evidence that they raised the possibility of caring for the boys in November 2013, and repeated these offers in March and April 2014.  The June application did not just pop up out of the blue.

[123]   In any event, as I have said, I do not consider that there was insufficient information in the circumstances.   And, as I have also said, none of the parties opposed to the Mitchells suggested that at the conclusion of the four day fixture, the matter should be adjourned to allow further evidence to be obtained.

Preference for kin

[124]   Counsel for the appellant, the boys and the Dixons between them advance three submissions in support of the argument that the Judge had wrongly found that kin placement was to be preferred over non-kin in accordance with the legislation and generally applicable research. The submissions were:

(a)      The reference to “family group” in ss 5 and 13 CYPFA and s 5 of COCA confirms that there is no statutory preference for placement with a child’s blood relations.

(b)The Judge applied generalised ideas about the danger of non-kin placement and failed to consider the question in the individualised

circumstances  of  these  boys  as  required  by  the  Bashir  v  Kacem

decisions.28

(c)      The Judge failed to understand that this was not a simple case of kin versus non-kin.  Rather each of the two options available involved the maintenance  of  kinship  ties  with  either  the  maternal  or  paternal family.  In the case of placement with the Dixons, the level of contact proposed with Victoria, Katherine, and the boys’ half sisters were such as to be, in substance, “a maternal family placement”.

[125]   I will address each of these three submissions in turn.

Kinship and the family group

[126]   As I have said, it is important to keep in mind which statute is being applied in which context.  There is no doubt that CYPFA expresses a clear preference for children in need of care and protection to be placed with their family or family group (the other items on the list – whanau, hapū and iwi are not relevant) where such placement is consistent with the child’s welfare and best interests.  If it is not, then s 13  provides  that  the  connection  with  family  or  family  group  should  still  be maintained.  All of these ends are to be achieved by a process of decision-making in which  the  children  and  family  or  family  group  are  fully  engaged.    State-led permanent placement outside the family or family group is a last resort.

[127]   The CYPFA regime is engaged in this decision and the principles of ss 5 and

13 are therefore relevant.   The Dixons are Ministry-sponsored caregivers and the Ministry (not the Dixons) is the applicant for the placement with them.  As I have said above, this is not just a COCA case.

[128]   The Dixons are not family, but do they constitute a part of the boys’ family group?  I have already set out the definition of family group.  The Dixons say they are adults with a significant psychological attachment to the boys and so meet the

definition in s 2 of family group.29

28     Bashir v Kacem, above n 15; Kacem v Bashir, above n 16.

29 The definition is set out above at [66].

[129]   This submission needs to be approached cautiously.   Placement with the Dixons was temporary.   In light of the clear preference in s 13 against placing children in permanent State care unless there is no other option, the courts should not lightly transform a temporary placement into a permanent one by the backdoor and without  addressing  s 13  issues.    Whether  there  is  a  significant  psychological attachment between child and adult will always be, of course, a question of fact, but clear evidence of it will be required in light of the statutory scheme.  Otherwise, the time taken to obtain a fixture in the Family Court – and on appeal – in this Court, could become, in itself, a reason for State-sponsored carers being put in the same position  of  primacy  as  the  kin  from  whom  the  children  were  taken.    Such  an approach risks undermining the careful balance struck between family and the State that is set out in s 13.

[130]   I note that the Dixons’ circumstance seems to be covered by s 13(h); where it is not consistent with the child’s best interests to return to family, then an opportunity must be provided to the child to develop a significant psychological attachment to the new caregiver.  Under that provision, return to family is the first choice.  A new psychological attachment to an unrelated adult is second.

[131]   On the facts, the boys have been with the Dixons for nine months now, and no issue at all has been taken with the excellent quality of their care during that period.

[132] The clinical evidence of recent psychological attachment is limited to “Gateway” assessments prepared by the Hutt Valley DHB.   No  updating expert evidence was filed in this regard.

[133]   Samuel’s “Gateway” assessment prepared by paediatrician Jenny Hansen, in August of this year noted that Samuel was “secure and attached in relationship with [his]  caregiver.”    John  Dixon  was  present  at  the  assessment  and  is  clearly the caregiver being referenced.   The assessment provided that “normal attachment behaviour was observed between Samuel and John.  Samuel used John as his secure- base during the appointment and was able to settle, explore and interact without

anxiety.    When  he  was  grisly  and  cried  he  reached  for  John  and  was  quickly

comforted and reassured.”

[134]   Jacob’s “Gateway” assessment indicated that he had “difficulty in navigating peer relationships.”  This, it was said, “reflects insecurity in primary relationships”. The report indicated that “there may be a need for therapeutic intervention if symptoms increase.” A “stable care relationship” was recommended.

[135]   The evidence of Mr Fairley was that, because of his history of disrupted placement, Jacob’s attachments are relatively elastic.   In addition, contact for both boys with maternal and paternal families during this nine month period has been extensive.  This would, to some extent at least, hold psychological attachment with the Dixons at bay particularly for Jacob.

[136]   While I accept that Samuel has formed a psychological attachment to the Dixons, I am not prepared to conclude without more evidence than is available to me from the record, that the attachment is “significant” in terms of the Act, and in the context of a 15 month old boy who has been placed in temporary State care for nine months.  I accept that a lengthy, though still temporary placement could produce a significant psychological attachment such that State-sponsored caregivers may properly be treated as members of the child’s “family group”, but I am not convinced that nine months is sufficient in this case. At least not without clear evidence that the inevitable attachment in light of age and time in care, had become “significant” in context and should not be disrupted.  I do not have that evidence.

Generalised assessment?

[137]   The Judge considered that the Dixons met “the welfare and best interests standard and the protection from harm mandate …” but that was still not enough. The Court could not ignore “the whanau focused guidance of ss 5 and 13”. Although the Judge said, the Dixons were prepared to maintain kin connection in their care of the boys, connection was not enough.   It “[did] not meet the priority afforded to

placement with whanau”.30

30 At [128].

[138]   Once  a  child’s  safety  is  adequately  protected,  the  Judge  considered  that CYPFA provided that the kin group should be preferred.  She further considered that this result was consistent with well established social science.31

[139]   In response to questions from the Judge, Mr Fairley accepted the “children in non-kin foster care appear to carry with them a wider range of risk factors for doing less well on the journey to adulthood than do children who live in kin caregiver situation.”32

[140]   In  my  view,  ss 5  and  13  CYPFA make  it  abundantly  clear  that  family, whanau, and the family group (among the other categories) should be preferred for placement under that Act if that is consistent with the child’s welfare, best interests and safety.  Where CYPFA and COCA are both in play – remember the Judge had to decide  whether   to   accept   or  reject   a  Ministry  application   –   the   intensely individualised assessment required by COCA is modified with the weighting given by  CYPFA to  kin  (and,  to  be  fair,  non-kin  adults  with  whom  the  child  has  a significant psychological attachment).

[141]   I consider that the Judge correctly applied the statutory principles in this respect.   Once safety was not an issue (and on the Judge’s assessment it was not) permanent placement by the Ministry outside the family or family group became difficult to justify under CYPFA principles. This was not just a relocation case.

[142]   In any event, it would be an oversimplification to suggest that in applying additional weighting to kin placement under CYPFA, the Judge closed her mind to the requirements  of s 5  of COCA.    It  is  true  that  she did  not  list  the relevant requirements one by one.  But in her judgment, she addresses each one and satisfies herself that the placement she chooses is consistent with s 5 principles.  She carefully considered  the  boys’ safety.    She  asked  herself  whether  maintaining  continuity outweighed other factors.   She ensured that contact provisions protected the boys’ relationships  with  both  parents,  she  was  very  conscious  of  preserving  family

relationships, and of the boys’ identity within both paternal and maternal families.

31 At [34].

32     Notes of Evidence at 160, line 12.

Placement with maternal family?

[143]   I agree that it was not correct to frame the issues as if there was a simple dichotomy between kin placement with the Mitchells and non-kin placement with the Dixons.  There had been, as I have said, extensive provision for contact between the boys, their mother, grandmother and sisters throughout the period of placement, and  the  Dixons  said  in  Court  before me that  they wished  to  maintain  ongoing relationships between the boys and their families.  But a careful read of the decision makes it clear the Judge was not being that simplistic.  She also weighed the quality of family group connections that would be maintained via the Dixons as against the Mitchells.   She simply felt that, even with the best of intentions, contact via the Dixons would be very much second best in terms of expressing the s 13 principle that children should be raised within their families unless there is a “serious risk of

harm to the child;33 that the necessary assistance and support should be provided “to

enable the child … to be cared for and protected within his or her own family”; and that the primary role in caring for and protecting the child lies with his or her family such that “intervention into family life should be the minimum necessary to ensure a child or young person’s safety and protection.”

[144]   Again, I consider that the Judge correctly applied the statute.

The boys’ views and the impact of change

[145]   Ms  Courtney,  counsel  for  the  boys,  pressed  upon  me  that  insufficient attention had been paid in the Family Court to the views expressed by the boys, and the emotional or psychological impact upon them of the change proposed.  Though these issues were not raised as grounds in the appeal, it is appropriate for me to consider them, coming as they do, from counsel for the boys.

[146]   Section 6 of COCA requires that a reasonable opportunity be afforded the boys to express their views on the matters at issue in this case and that such views as may be expressed must be taken into account.  Section 5(d) of COCA requires that the wishes of the children should be considered and accorded such weight as is

appropriate in light of the age, maturity and culture of the boys.

33     CYPFA, s 13.

[147]   Ms Courtney helpfully filed a memorandum prior to the hearing before me updating the Court on Jacob’s views on the proposed move.   Jacob said he would “feel sad” about leaving New Zealand.  He did not want to go to Australia “even if there are lots of toys there”.

[148]   An affidavit filed in this Court by Jacob’s kindergarten teacher expressed concerns over deterioration in his behaviour during the period after the Family Court judgment in which both the maternal and paternal families shared contact.   The Dixons in their updating affidavit noted the boys’ behaviour and sense of security had deteriorated since the change in care arrangements following the Family Court judgments. The boys, they said, had become unsettled.

[149]   The evidence of the Mitchells’ post-judgment is, perhaps understandably, rather different.  They say that the boys were “settled and cuddly” when in their care during this period.

[150]   Jacob is clearly troubled by the uncertainty he faces.  He is understandably afraid.  Samuel has developed, equally understandably, an attachment to the Dixons. He has, after all, spent more than half of his life with them.  He will be, I assume, unaware in any direct way of the changes proposed in his life although the anxiety of adults around him is probably being unavoidably communicated to him and Jacob.

[151]   The views Jacob expressed to Ms Courtney need to be understood in the context of this difficult period.  The boys need (obviously) a certain and secure life in a loving home.  Like Judge Moss, I consider that such an outcome will be found whether the boys remain with the Dixons or move to the Mitchells.  The stress and anxiety Jacob feels will pass once matters are finally settled.  And Samuel is still very  young.    He will  be more  adaptable  than  Jacob  despite his  understandable attachment to the Dixons.

[152]   I accept that one negative aspect of the shift to Brisbane will be a reduction in contact with Victoria and the maternal family.   That is very unfortunate, but the Mitchells confirmed that there will regular trips to New Zealand and Judge Moss has required at least three such trips.  Enforceability aside, there is every reason to accept

that the Mitchells will comply with that direction in both spirit and substance.  Nor do  I think there will be any difficulty with the  Mitchells facilitating contact in Australia between Katherine and the boys’ sisters.   Victoria will of course be a different proposition given past difficulties.  That matter must be worked through. But, again like Judge Moss, I simply do not doubt the Mitchells’ good intentions.

[153]   I conclude therefore that while Jacob has recently expressed a preference to remain in New Zealand, that is reflective of his general anxiety about change.  A stable long term placement in a loving household will soon address that anxiety.  Nor am I unduly troubled by evidence of Samuel’s natural attachment to the Dixons.  As I have said, he is young and will prove adaptable to change once settled in.

Conclusion

[154]   The substantive appeal must be dismissed accordingly.  Although that is the outcome, we are now heading into the Christmas period and there will be a need for appropriate transition.   The parties may consider it appropriate to ensure that the maternal family and the Dixons have some Christmas time with the boys before their move to Queensland.   I would appreciate it if counsel could file an urgent memorandum in this respect so that any necessary transitional orders or directions can  be  made.    A  single  memorandum  in  which  all  counsel  joined  would  be preferable.   Leave is reserved to preserve my ability to make consequential orders despite dismissal of the appeal.

[155]   If the parties cannot agree an appropriate approach to costs, they may file memoranda within two weeks of this judgment.

Williams J

Solicitors:

S E Hughes, Barrister & Solicitor, Johnsonville

Crown Law, Wellington

C J Nicholls, Barrister & Solicitor, Lower Hutt
J F Sanders, Lawyer, Upper Hutt

A M Courtney Law, Wellington

Thomas Dewar Sziranyi Letts, Lower Hutt