Hughes v Ministry of Social Development

[2014] NZHC 2170

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.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-11045 [2014] NZHC 2170

BETWEEN

SARAH ELIZABETH HUGHES as

Litigation Guardian for RJF Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT Respondent

AND

RW
Second Respondent

AND

WW AND MW Third Respondents

Hearing:

8 September 2014

Counsel:

S E Hughes as litigation guardian for RJF A M Courtney as lawyer for the children A Jacobs for first respondent

C Nicholls and C Leader for second respondent
J F Sanders for third respondents

Judgment:

9 September 2014

JUDGMENT OF SIMON FRANCE J

HUGHES v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 2170 [9 September 2014]

Introduction

[1]      These proceedings concern two young boys, WW and IF, aged four and one. After  a  seven  day  hearing  the  Family  Court  concluded  that  the  boys’ paternal grandparents should become the primary caregivers.1   They live in Australia and so the two boys will shortly relocate there.

[2]      This is an application for a stay of the orders made by the Family Court pending determination of an appeal against that decision.  It is unfortunate that the appeals and applications have been belatedly filed.  The Family Court decision was released on 5 August and the steps prescribed by the Family Court to implement the transition are well underway.

Preliminary matters

[3]      Ms Courtney was lawyer for the children.  She is available to continue in that role and is appointed accordingly.

[4]      At the Family Court hearing Judge Moss determined that the boys’ mother (RJF) was an incapacitated person in terms of r 8 of the Family Court Rules 2002 (the Rules).   Pursuant to r 90E of the Rules, Ms Hughes was appointed litigation guardian.  Ms Hughes is available to continue in that role and has made application to that effect (if it is needed).

[5]      Counsel were unable to provide me with authority on the point.  I can see no reason in principle why the appointment does not continue for the duration of the litigation including any appeal.  There is no suggestion in the wording of the relevant provisions that it is an appointment only for that hearing.  The appointment is for the proceedings and in the absence of any express provision to the contrary, I take that to include any appeal in the matter.  This conclusion is consistent with the reality that the appeal court is not really in a position to reassess the matter on the papers, particularly in connection with an interlocutory application such as the present application.  No appeal has been lodged against the Judge’s decision and accordingly

I conclude that Ms Hughes’ appointment continues.

1      Ministry of Social Development v RF [2014] NZFC 5597.

[6]      RJF has filed an appeal. Anticipating her continued appointment, Ms Hughes has today filed an amended Notice of Appeal (8 September 2014) and that is to be taken as the appeal document from now on.

[7]      The third preliminary matter is jurisdiction.  The application is for a stay, but s 344 of the Children, Young Persons, and their Families Act 1989 (the Act) provides that:

344Notice  of  appeal  not  to  affect  orders  unless  court  otherwise directs

Except where the court making the order appealed from otherwise directs, the operation of an order made under this Act shall not be suspended by an appeal under section 341, and every order made under this Act may be enforced in the same manner in all respects as if no appeal under that section were pending.

[8]      On its face this suggests the application should have been made to the Family Court and no doubt that is the preferable course.   The Family Court will be best placed to assess where the immediate balance lies pending the appeal.  The Family Court stay decision could then itself be appealed if the parties chose, and the High Court would have the benefit of the Family Court’s assessment.

[9]      That has not been done here, but time does not allow me to direct the parties to follow that course.  This Court has concurrent jurisdiction to grant a stay (r 20.10 of the High Court Rules) or to make interim custody orders which will have that effect (s 345 of the Act).

Facts

[10]     The   two   boys,  WW  and   IF,   have   been   in   the   Ministry  of   Social Development’s care for about a year.  For IF that is the whole of his life.  By contrast WW had been with his parents for around three and a half years prior to being placed in the Ministry’s care at the same time as IF was born.

[11]     The present proceedings are about the long term care of the two boys.  The Family Court first declared that both WW and IF were in need of protection and next concluded that neither parent was suitable as sole caregiver.   This had been the conclusion reached by the Ministry, and the Court agreed.

[12]     That left two options.   For five months the boys had been in the care of non-kin caregivers who were available to be the permanent long-term caregivers. This was the option favoured by the Ministry.  The caregivers had established good relations with the boys’ family members.  They were facilitating contact between the boys and their maternal grandmother, and with their older step sisters.  One sister in particular spends regular time on the weekends with her grandmother, and so sees the two young boys as regularly as she visits.   The caregivers had been properly assessed and were considered appropriate.   The Court assessed this package as a good option.

[13]     As for the second option, to use the words of the judgment:

Shortly  before  the  hearing  …  the  paternal  grandparents  confirmed  in  a formal way their wish to care for the boys in Australia.

[14]     The Court noted the paternal grandparents had been a constant presence in W’s life and had throughout the process involved themselves appropriately in all events  such  as  Family  Group  Conferences.    They  had  made  regular  visits  to New Zealand in the last year.   Further, earlier in his life WW and his parents had lived in Australia for a period, so the grandparents had extended contact at that time. It is proposed that the boys’ father, RW, would live with his parents and so have constant contact with his sons.  The grandparents, however, would be the primary caregivers.

[15]    The Family Court assessed this as also being a good option.   In these circumstances the Court concluded that, in light of the principle in s 13(2)(e) of the Act, the option that placed the boys with family should be preferred.2   The effect of the decision is to relocate the boys to Australia.

Implementation of decision

[16]     The Court set out a staged process for the boys to “transition” to Australia.  It was to occur over a six week period and required the grandparents to come to New Zealand for that period.  Thereafter the six weeks were to involve increasing periods of contact:

(a)       week one – six hour visits on three days of the week;

(b)week two and three – six hour visits on two days and one overnight stay, totalling 24 hours contact;

(c)       week four – one visit of 48 hours, and one of 36 hours;

(d)      week five – two visits of 48 hours, or more if the children settled; (e) week six – one visit of three days and one of 48 hours.

[17]     It took some time to commence the process following the  Family Court decision  on  8 August 2014.    Before  me  the  process  was  generally  described  at two-thirds completed, but that seems inconsistent with the grandparents’ evidence. That evidence suggests the process started around 23 August which would mean it is

presently in week three.

2      Section 13(2)(e) reads:

… 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:

Evidence filed for stay application

[18]     Affidavits have been  filed by RW, and his parents.   All depose that the transition process is going well, and they advise that WW is excited about going to Australia.  Concern is expressed about the effect, particularly on WW, of a stay.  It is correctly assumed that the effect of a stay would be to keep the boys in their current placement with the non-kin caregivers.  All three deponents say they are concerned about that because the non-kin caregivers are plainly very upset by the decision, and are struggling to accept it.  It is thought the understandable sense of loss being felt by the caregivers will negatively impact on the boys in an interim situation, particularly if the appeal is unsuccessful.

[19]     It is also apparent from the evidence that the grandparents have gone to great effort, and considerable expense to participate in the process, and then to give effect to the Family Court’s transitional arrangements.   They have as requested come to live in New Zealand for the period.   If a stay is granted and the appeal is then unsuccessful, presumably some sort of similar process might again be required.  The situation is difficult for them, and I acknowledge that.

[20]     The  other  evidence  is  filed  by  Ms Courtney.    She  provides  paediatric assessments for both boys.   These assessments are dated 4 August being the day before the judgment was released.  At the time of the assessments the boys were in full-time care of the non-kin caregivers.   The reports are largely positive, and understandably place emphasis on the need for stability.  There was some concern about W’s emotional development, with signs of insecurity.

[21]     Counsel for the child also advises that WW has expressed to her a desire to stay in New Zealand.

Competing submissions

[22]     A stay is supported by RJF, by the Ministry, and by counsel for the child. The reasons are a combination of considering that stability is the best option pending final resolution, and a belief in the merits of the appeal.  In this latter regard, concern is  expressed  at  the  lack  of  proper  assessment  of  both  RW  and  the  paternal

grandparents.  There had been ample opportunity to assess RW, but he had declined to engage with the professional assessors.  As for the grandparents, their application was somewhat belated and formal assessment has not been done.

[23]     Ms Hughes submitted an appeal would be rendered nugatory if the boys relocate.  This submission is based on a sense that a Court will be very reluctant to displace a relocation that has already occurred.

[24]     On  behalf  of  RW,  and  the  paternal  grandparents,  it  is  stressed  that  the transition period is well underway.   WW has an expectation of going to Australia with them.  Concern is expressed for his well-being if again disappointed or if plans are changed on him.  There is also concern about the impact a stay would have on WW’s attitude to his father and grandparents if he perceives they have both gone back to Australia without him, leaving him behind.

[25]     It is submitted that the extent of disruption, if the appeal succeeds, is being overstated.  It is likely that there will be a period of two months or so in Australia before the appeal is resolved.  If the Australian trip ends at that point, the period can be equated to a prolonged holiday in Australia with his grandparents before returning to New Zealand.  There is no basis to consider it would have a significant long-term impact on the boys.

Applicable stay principles

[26]     In WAH v WTW,3  the Court of Appeal endorsed the principles identified by

Priestley J in Crosby v Crosby:4

[13]     From the  above  I extract the following principles as  relevant in respect of applications for stay in cases such as the present:

[a]       The Family Court has power to entertain an application for stay of proceedings in respect of an appeal against its judgment.

[b]      The overriding consideration in such an application is the welfare of the children.

3      WAH v WTW [2010] NZCA 344 at [22].

4      Crosby v Crosby HC Auckland AP124–SW01, 21 December 2001 at [13].

[c]       Whether or not the appeal will be rendered nugatory if a stay is refused will be a highly relevant consideration.

[d]       The arguments in favour of a stay will be stronger if the decision under appeal has the effect of significantly changing the status quo.

[e]       The Court will have regard to any evidence of lack of bona fides in the filing of an appeal and an application for stay as a consequence.

[f]       The reluctance of the High Court on appeal to interfere with findings of credibility, and the disposal of an appeal largely or entirely on the evidence heard in the Family Court, decrease the prospects of successful appeal and hence weaken the arguments in favour of a stay.

[g]       Each case will turn on its own facts.  The length of time before the appeal is likely to be heard, the current circumstances of the parties and children and the consequence of delay pending the hearing of the appeal will all be relevant.

The Court of Appeal added to the list by noting that the merits of the appeal were also an important consideration.5

Decision

[27]     The implementation of the Family Court’s decision will significantly change the status quo.  To a certain extent that has already happened since about half of the transitional period has passed, and it is plain that WW is aware he is going to Australia to live with his grandparents.  But it will still be a significant further step for the boys to actually relocate.

[28]     My understanding is that the care arrangements that existed prior to the Family Court decision can and will resume should a stay be given.   There will unavoidably be disruption for WW and some uncertainty engendered whatever happens.  The reality of an appeal being filed is that the Family Court decision is thereby under review, and uncertainty is inevitable.  No-one can yet advise the boys

what their future is until the appeal is resolved.

5 At [22].

[29]     I accept the applicant’s submission that the uncertainty can best be managed in New Zealand.  There will at this point be greater familiarity for the boys with the New Zealand arrangements than with setting up in a new home in Australia.  That is so even though the boys have previously been in Australia and at their grandparents’ home.   The trip cannot  be sold to the boys  as a holiday, as it may in fact be permanent.  If it is explained as a permanent shift that may prove to be incorrect.  I have no real doubt that the best option is to remain in New Zealand.  Uncertainty has entered only because of the delay in seeking a stay and the partial implementation of the transition process.

[30]     Of the other factors, I am loathe to comment on the merits other than to observe it is a reasonably brought appeal.  This was undoubtedly a difficult decision, and reasonable minds can differ on it.  The effect of the decision is quite dramatic, and I am of the view that there is a legitimate public interest in preserving the effectiveness of the appeal right.  To look at it from the other viewpoint, it is by no means a fanciful or hopeless appeal.  Nor is it an appeal that particularly requires an appellant to disturb credibility findings – it is more an issue about the assessments made given those findings.

[31]     An appeal can be heard in November.   The balance favours preserving the status quo until then.   This will cause considerable hardship to the paternal grandparents who at all times have done nothing but the best they can do for the boys.  They have spared no effort and I recognise how hard this decision will be for them.  It is, however, my assessment of where the best interests of the boys lie in the interim.

[32]     I have not sought to resolve an apparent factual conflict over W’s wishes.  No doubt the boy is confused and uncertain and so may well be saying different things. I do consider, however, that it is appropriate to give careful consideration to information conveyed by the lawyer for the child.

Conclusion

[33]     The application for a stay of the Family Court orders is granted.  Pursuant to s 345 of the Act, pending final determination of the appeal, I place both boys in the custody of the Chief Executive of the Ministry.  The expectation is that the boys will remain in the care of the non-kin caregivers.  Careful thought needs to be given to how  this  next  period  of  waiting,  with  the  possibility  of  different  outcomes,  is

explained to the boys.

Simon France J

Solicitors:

S E Hughes, Barrister & Solicitor, Johnsonville

A M Courtney Law, Wellington
Crown Law, Wellington

C J Nicholls, Barrister & Solicitor, Lower Hutt

J F Sanders, Lawyer, Upper Hutt