Jones v Skelton HC Hamilton CIV 2006-419-1489
[2006] NZHC 1253
•18 October 2006
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SEE ORDERS AT PARAS [55] AND [56] AS TO THE EXTENT TO WHICH PROCEEDINGS MAY BE PUBLISHED. THIS JUDGMENT CAN BE PUBLISHED PUBLICLY IN THIS FORM.
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV 2006-419-1489
IN THE MATTER OF an application pursuant to the Habeas
Corpus Act 2001
BETWEEN
CHRISTOPHER DEAN JONES
Plaintiff AND
KAY HALTON SKELTON First Defendant
AND
BRETT SKELTON
Second Defendant AND
DICK HEADLEY Third Defendant
AND
WENDY HEADLEY
Fourth Defendant AND
NJT
Fifth Defendant
AND
WINIFRED HELEN HART
Sixth Defendant Hearing:
18 October 2006
Counsel: T Sutcliffe and L F Walkington for Plaintiff
J Buckle for First Defendant
S Tait for Second and Sixth Defendants
W Pyke for Fifth Defendant
T Gunn, lawyer for child in Family Court proceedings (with leave) No appearance by or on behalf of Third Defendant
Fourth Defendant, Mrs Headley present in person
Judgment: 18 October 2006
(ORAL) JUDGMENT OF HEATH J
JONES V SKELTON AND ORS HC HAM CIV 2006-419-1489 18 October 2006
Introduction
[1] Mr Jones applies for a writ of habeas corpus under s 6 of the Habeas Corpus Act 2001 (the Act). The application was filed yesterday and has been heard this afternoon on an urgent basis. It is brought in unusual circumstances.
[2] The application concerns a young boy, aged six years, called Jayden Headley. Ms Skelton is Jayden’s mother. Mr Jones is Jayden’s father. I record that some issue has been raised in recent times by Ms Skelton as to whether Mr Jones is Jayden’s father. The Family Court, at least for present purposes, is acting on the basis of DNA testing that strongly supports Mr Jones’ claims of paternity.
[3] On 22 June 2006, an interim order was made, on an ex parte basis, by the Family Court at Hamilton whereby Mr Jones was granted day to day care of Jayden pending further order of that Court. Reasons for making those orders were given in writing by Judge Brown on 23 June 2006. I refer to those reasons later.
[4] Under the terms of the orders made, Ms Skelton was to have supervised contact for two hours per week at a supervised access centre. The parenting orders were made under the Care of Children Act 2004 (the 2004 Act).
Background to the application
[5] On 18 August 2006, Jayden was in the care of Mr Jones’ sister. She and Jayden had planned a visit, with her children, to the public library in Hamilton. They entered the library, with the children going to the children’s section.
[6] Video surveillance shows a woman who answers the description of Ms T entering the library and approaching Jayden. Shortly thereafter she was seen leaving the library with Jayden following. The evidence establishes that Ms T is a close friend of Ms Skelton.
[7] Jayden has not been seen since he left the library in close proximity to Ms T. An extensive Police inquiry has been undertaken, including media publicity through newspapers, radio and television. Ms Skelton has herself appeared on national television. The disputes concerning Jayden are plainly within the public domain. Despite all of that, Jayden has not been located.
[8] Mr Jones believes that Ms Skelton, her husband, her parents and her grandmother, as well as the close friend Ms T, have knowledge of the whereabouts of Jayden and are complicit in his unlawful detention. The writ of habeas corpus is sought to release Jayden from that detention following his abduction.
[9] Jayden is believed to be in New Zealand, probably with his maternal grandfather, Mr Headley. Despite the fact that there have been previous attempts to remove Jayden from this jurisdiction there are no concerns that he may leave New Zealand. There is in place an order forbidding removal from the jurisdiction and notification has been given to immigration authorities under the CAPPS system.
[10] The present proceedings have been served on all defendants, save for the maternal grandfather, Mr Headley. This morning I made an order for substituted service of Mr Headley on Mrs Headley. That order was made because I have little doubt that Mrs Headley will know how to contact her husband quickly.
[11] Mrs Headley was not specifically represented at today’s hearing, though she has been present in Court. At my request, during an adjournment, Mr Tait spoke to her about the proceeding. However, he has not had an opportunity to advise her in the manner one would expect from counsel retained for the purpose.
The nature of the habeas corpus jurisdiction
[12] First I deal with the nature of the habeas corpus jurisdiction particularly having regard to the unusual circumstances in which the present application has been made.
[13] The Act was passed to implement a Law Commission Report, Habeas Corpus Procedure (NZLC R 44, 1997). The basic right afforded by the writ is described in the report, at 1, para 1, as follows:
It is the right of every individual not to be imprisoned or detained either by the Government acting arbitrarily and without due process or by the wrongful act of another citizen or citizens. (my emphasis)
[14] What follows is a summary of the nature of the jurisdiction, which is taken primarily from the content of the Law Commission report.
[15] The Commission noted that it was “easy enough” to affirm the right not to be arbitrarily arrested or detained (s 22 of the New Zealand Bill of Rights Act 1990). However, it stated that a right without a remedy “is an empty thing”. The writ of habeas corpus was developed to provide an effective procedure to enforce the right.
[16] Using its full name, the writ is one of habeas corpus ad subjiciendum. Translated from the Latin, it means that the body of a named person must be produced to the Court so that the justification for detention may be scrutinised.
[17] The writ, historically, was one of great flexibility, including use as a mechanism to deal with custody disputes, particularly where abduction was alleged: eg Barnado v Ford [1892] AC 326 (HL) applied in Re Jayamohan [1996] 1 NZLR
172 (HC), (1997) 15 FRNZ 486 (CA).
[18] In the High Court decision in Jayamohan, Blanchard J referred to a passage from Sharpe, The Law of Habeas Corpus (2nd ed, 1989) p 174, as follows:
That habeas corpus in custody cases differs fundamentally from its use to secure personal liberty has always been recognised. It is seen to involve 'not a question of liberty, but of nurture, control, and education [Barnardo v McHugh [1891] 1 QB 194 at 204 per Lord Esher MR (aff'd) [1891] AC
388], it ‘is being used not for the body, but for the soul of the child’ . . . [Re Carroll [1931] 1 KB 317 at 331, per Scrutton LJ]. Accordingly, the courts have consistently held that neither the allegation that the child is under no restraint, nor that the child consents to his situation, will prevent them from acting on habeas corpus. [R v Greenhill (1836) 4 A & E 624; R v Clarke, re Race (1857) 7 E & B 186; Exp M'Lellan (1831) 1 Dowl 81; R v Howes (1860) 3 E & 332; Stevenson v Florant [1925] SCR 532.]
[19] The relative disuse of such proceedings in New Zealand was noted in Re D (Infants) [1969] NZLR 865, at 865-866. Indeed, the Commission was wary of recommending continuation of the writ in cases involving children due to the “perfectly satisfactory machinery” provided by the Guardianship Act 1968, now replaced by the 2004 Act. The Commission thought that a method of enforcement that bypassed the specialist jurisdiction of the Family Court would be undesirable but did not think it necessary to limit the scope of the writ. Rather, the Commission recommended a procedure whereby the High Court could remove proceedings to the Family Court if necessary. That ability is enshrined in s 13 of the Act.
[20] During the course of submissions, Mr Pyke suggested that the writ ought not to be regarded as punitive in nature and that where restraint by a particular defendant ceased before the application was made, the writ ought not to issue. That submission was made with particular reference to Ms T, whom Mr Pyke represents.
[21] There is little evidence of a continued role by Ms T, subsequent to the actual abduction of Jayden. Indeed, the quality of proof in respect of Ms T’s involvement to date may not be sufficient to justify the issue of criminal proceedings, though that is a separate issue.
[22] I do not accept that the jurisdiction is as narrow as that for which Mr Pyke contends. If there were an evidential foundation to suggest that a person is complicit in an abduction and can exercise influence to have the child returned that, in my view, is enough. Otherwise, the Court would be left in the situation where a deliberate planned attempt to abduct had been hatched but no ability to procure release would exist unless the actual detainor were located. It would allow those who do not have actual custody of the child, not to be made the subject of an order and would enable them conveniently to close their ears and minds to the steps that are being taken to detain by someone distanced from them.
[23] The purpose of the writ is to secure release of a detained person. In my view, it is for the Court to determine, in each individual case, the mechanism best designed to achieve that goal.
[24] The Commission recommended enactment of legislation to give effect to the remedy for the purpose of simplifying the procedural requirements necessary to obtain an order. The Commission did not intend that the substantive metes and bounds of the availability of the habeas corpus remedy should be affected by the legislation proposed.
[25] One of the purposes of the Act is to reaffirm the historic and constitutional purpose of the writ as a vital means of safeguarding individual liberty. Another is to make better provision for restoring the liberty of those who are unlawfully detained by whatever mechanism. See s 5 of the Act.
[26] The Act requires urgency to be afforded to an application for habeas corpus with a hearing on notice being held no later than three days after the date on which the application is filed: s 9.
[27] That issue has caused some debate in this hearing. Mr Buckle, for Ms Skelton, supported by other counsel, sought an adjournment on the basis that there was no need to deal with the application so quickly.
[28] Mr Buckle was confronted with a situation in which counsel who currently acts for Ms Skelton was not available. He contended that he was unable to represent her adequately today. Mr Buckle submitted that there was no reason for the Court to act as urgently as it has.
[29] I ruled against an adjournment because of the need for this Court to act promptly. There is clear evidence that a child has been abducted contrary to orders made by the Family Court of which the mother is well aware. In those circumstances, and particularly having regard to the lack of progress made in the criminal investigation for reasons that are understandable and which do not reflect adversely on the Police, it is desirable for this Court to deal promptly with this application to bring matters to a head.
[30] Hopefully, the orders I propose to make today will enable mature reflection by those involved in or associated with the removal of Jayden and will bring about a
situation where he can be brought before the Court and ancillary issues resolved in accordance with law.
Findings of fact
[31] From the evidence that has been filed, I am satisfied, on a balance of probabilities, that Jayden was abducted from the public library in Hamilton by a person acting on behalf of Ms Skelton, in all likelihood Ms T.
[32] It is likely, having regard to correspondence that has been sent to the Police by Jayden’s grandfather, Mr Headley, that Jayden is being held in a safe location by his maternal grandfather.
[33] There is no evidence to suggest coercion on the part of Mr Headley. Nor is there any evidence to suggest that Jayden may be at risk of physical harm. However, it is self-evident that a six year old child, removed from the care of a parent in the manner that occurred in this case, is likely to suffer psychological or emotional consequences of a serious nature, notwithstanding efforts that may be made to ameliorate those effects by a person who genuinely may be acting out of love.
[34] I am satisfied from the evidence that each of the other five defendants are likely to have knowledge of the place at which Jayden is presently held and, apart from Ms T, may be able to exercise influence over Mr Headley to return Jayden in terms of any order the Court may make.
[35] The affidavit filed in support of the application by Detective Sergeant BuBear outlines the history of the criminal investigation into the abduction. The evidence largely supports the findings of fact I have made and confirms that Ms Skelton has been arrested and charged with kidnapping. Further, a warrant has been issued for the arrest of Mr Headley, also for kidnapping. He has not been located.
[36] There is evidence that Ms Skelton, Mrs Headley and Mrs Hart (Jayden’s mother, grandmother and great-grandmother respectively) have knowledge of where
Jayden is located. The evidence of an outsider, who was asked to facilitate some method of resolving the dispute, suggests that they have that knowledge.
[37] Further, in my view, it is not credible to suggest that Jayden’s mother, grandmother and great-grandmother do not know where he is and what is happening to him. Nor is it credible that Ms Skelton does not know where her father is. Likewise it is not credible that Mrs Headley does not know where her husband is.
[38] Those parties will need to reflect seriously on the events that have occurred before deciding what choices they make in responding to the orders I will make.
[39] Those factual findings bring into play s 14 of the Act. Once a Judge is satisfied that a person is being detained the Court “must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention” if the relevant defendant “fails to establish that the detention of the detained person is lawful”: s 14(1).
[40] A Judge dealing with an application under the Act “must enquire into the matters of fact and law claimed to justify the detention, the only qualification to the ambit of that enquiry being that a Judge cannot call into question any conviction or ruling on a question of bail by a Court of competent jurisdiction”: s 14(2).
[41] The application must either be refused or a writ must issue: s 14(3).
[42] No justification for the detention of Jayden has been put forward. There is in existence an order for day to day care of Jayden which has been made in favour of Mr Jones by the Family Court, for reasons set out in a judgment delivered by Judge Brown on 23 June 2006.
[43] After recounting the background to the Family Court proceedings, none of which reflects well on Ms Skelton or her family, Judge Brown rejected Ms Skelton’s suggestion that Mr Jones was not the father of Jayden and determined to change primary care arrangements on the basis that Ms Skelton was prepared to deceive the Court in an active and concerted manner.
Result
[44] In those circumstances I make the following orders:
a) Kay Halton Skelton, Brett Skelton, Dick Headley, Wendy Headley, NJT and Winifred Helen Hart, jointly and severally, shall discharge and release Jayden Christopher Headley from detention. They are ordered to bring Jayden before the Court at Hamilton at 10.00am on Wednesday 25 October 2006.
b) In the event that all or any of those people are unable to bring Jayden before the Court at that time and place, each shall file and serve an affidavit by 5.00pm on 24 October 2006 containing the following information:
i) Their knowledge of what has happened to Jayden since the time he was taken from the Hamilton public library on
18 August 2006.
ii) Details of any contact (whether physical, telephone, email or otherwise) that the deponents have had with Jayden or Mr Dick Headley since he was taken.
iii) Efforts each of them have made to locate or contact Jayden. iv) The location in which Mr Headley may be found.
v) The reasons why the deponent is unable to bring Jayden before the Court and the steps that each has taken to have Jayden brought before the Court in compliance with my order.
[45] The Court file relating to the present proceeding may not be searched, copied or inspected pending further order of the Court. Any application shall be made on
notice to all parties, including Ms Gunn as lawyer for the child in the Family Court proceedings.
[46] In respect of affidavits of the defendants which may be filed pursuant to the orders I have made, while they must be served on Mr Jones I record Mr Jones’ undertaking to the Court, through Mr Sutcliffe, that those affidavits will not be made available to Police to inspect without prior permission of the Court obtained on notice to all parties and the lawyer for the child. [As I indicated at the hearing, I expect that undertaking to extend to written or oral communication of the contents of the affidavits].
[47] In light of the fact that criminal charges have been laid against Ms Skelton and a warrant issued in respect of Mr Headley, I direct that any affidavit evidence given by any of the deponents shall not be admissible in criminal proceedings brought against any of them.
[48] I make that order and the orders in relation to inspection and disclosure of affidavits because the paramount object of this Court, at present, is to provide for the welfare and best interests of the child. Those interests must take precedence, at the present stage, over the need to prosecute conduct criminally. I take the view that the various orders I have made are necessary to enable primacy to be given to the best interests of Jayden.
[49] In addition, I take the view that all orders I have made would have been available to the Court, in dealing with the present circumstances, if the issues had arisen in the context of exercise of the parens patriae jurisdiction: see Pallin v Department of Social Welfare [1983] NZLR 266 (CA) and my comments on the extent of that jurisdiction in Re an Unborn Child [2003] 1 NZLR 115 at 127-129, paras [38]-[43].
[50] The application is adjourned to 10.00am on 25 October 2006. If affidavits were filed, the presiding Judge (who will be either Keane J or myself) will determine whether it is necessary to have the witnesses examined on their affidavits and, if so, whether that ought to be done purely through the Judge or involving counsel.
[51] It is likely that the step of oral examination will be taken if the Judge were not satisfied that the affidavit was a frank statement of the deponent’s knowledge. Any further orders, in that regard, would need to be made in the best interests of Jayden to secure his release from detention if he were not brought before the Court at the relevant time.
[52] I make it clear also, that if the presiding Judge were not satisfied that adequate steps had been taken by all or any of the defendants to whom the present orders are directed, those defendants who fail to comply adequately will be at risk of imprisonment for contempt of Court. This is serious and all involved must realise that.
[53] If it were necessary to examine the deponents orally, the presiding Judge will need to determine whether such examination should be held in open Court, having regard to the various competing public interest factors at play in this case. They are the open justice principle, the right to receive and impart information guaranteed by s 14 of the Bill of Rights, the need to protect witnesses against the possibility of self- incrimination, the desirability of pursuing investigations in the law enforcement arena and the paramount need to meet the welfare and best interests of the child.
[54] It is evident, from a catalogue of those interests, that there are many clashes and one of my intentions in making the orders I have today is to minimise the risk of one of those policy factors being undermined by the steps that must be taken, in the best interests of Jayden, to secure his release from detention.
[55] I make an order forbidding publication of the name of the fifth defendant, Ms T, pending further order of the Court. That order is made due to the effect publication may have on her children.
[56] I make an order prohibiting publication of all submissions made to the Court today, save to the extent they have been referred to in this judgment. What I have said in this judgment may be published.
[57] Ms Gunn has undertaken to apply to the Family Court for the transfer of extant proceedings to this Court. If the Family Court were minded to make such an order, I direct the Registrar to list those proceedings at 10.00am on 25 October 2006 when the present application will be recalled before the Court.
[58] Leave to apply is reserved in case there are any unexpected issues for any party that need to be considered.
[59] All questions of costs are reserved.
P R Heath J
Solicitors:
Till Henderson King, Hamilton
Counsel:
T Sutcliffe, Hamilton
J Buckle, HamiltonS Tait, Auckland W Pyke, Hamilton T Gunn, Hamilton
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