L v Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki

[2017] NZHC 3008

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2804

[2017] NZHC 3008

BETWEEN

L

First Applicant

T
Second Applicant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN, ORANGA TAMARIKI

Respondent

Hearing:

1 December 2017

Appearances:

The applicants in person

A J Ewing for the Respondent

Judgment:

5 December 2017

JUDGMENT OF PALMER J

This judgment is delivered by me on 5 December 2017 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors and Party Crown Law, Wellington Applicants

L v THE CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN, ORANGA TAMARIKI [2017] NZHC 3008 [5 December 2017]

Summary

[1]    Baby L has been the subject of much litigation before and during his six months of life. His parents want him back from the custody arrangements imposed by Family Court, on application of the Ministry of Vulnerable Children, Oranga Tamariki, before his birth. I agree with the parents, Mr L and Ms T, that the order under which L was being detained expired on 30 October 2017 and has not yet been replaced. His detention has been unlawful since then. But, in light of the care and protection issues involved, I transfer the application to the Family Court for decision under s 13(2) of the Habeas Corpus Act 2001. In the meantime, I continue the current custody arrangements under the High Court’s parens patriae jurisdiction to protect those unable to care for themselves.

What happened?

The s 78 application

[2]The Court of Appeal has recently set out the context to this case:1

Ms T has long-standing mental health problems. She has previously been  the subject of a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 but is currently undergoing voluntary treatment. Her three older children were removed  from her on the grounds that they were in need of care and protection. Mr L, who settled in New Zealand in 1995 as a refugee, has previously received treatment for mental health issues but says that he currently has no such problems. The couple lives in straightened circumstances in a caravan park with minimal support from Ms T’s family.

[3]    In March 2017, when the couple was expecting the birth of their child L, a social worker applied for a declaration he was in need of care and protection under   s 67 of the Oranga Tamariki Act 1989 (the Act). At the same time, the social worker applied for an order under s 78, without notice to the parents, placing L in the custody of the Chief Executive of the Ministry of Vulnerable Children, Oranga Tamariki (Chief Executive), “pending determination of the declaration proceedings”.2 This reflected the words of s 78(1).

1      L v Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki [2017] NZCA 517 [Court of Appeal decision] at [4].

2      During the course of these events the Ministry of Vulnerable Children, Oranga Tamariki, was created and the Children, Young Persons and Their Families Act 1989 became the Oranga Tamariki Act 1989. Except in quotations, I use the current nomenclature throughout the judgment.

[4]    On 13 April 2017 Judge Pidwell adjourned the proceeding to 4 May 2017 and made the s 78 order, saying it was appropriate and in the child’s best interest and welfare for a s 78 order to issue immediately “to ensure that the child upon birth has the best start to life it can, in terms of an appropriate and safe placement approved by the Ministry.”3 The order stated (with emphasis added): “Chief Executive of the Ministry of Social Development shall have custody of the above-named child or young person pending determination of the application for declaration.” On 4 May 2017, after two family group conferences, Judge Druce made allocated an urgent fixture to hear the s 67 application and determined the s 78 order “will continue in the interim”.

[5]    L was born on 13 May 2017. The Chief Executive placed L with a member of Ms T’s whānau.

Previous habeas corpus applications

[6]    The parents, Mr L and Ms T, applied for a writ of habeas corpus on the basis L was not a “subsequent child” as defined in the Act (which would put the onus on the parents to demonstrate he or she would not allow harm to the child). On 25 September 2017, Toogood J noted the Chief Executive had withdrawn reliance on  the “subsequent child” status of L.4 But he declined the application  for habeas corpus because there was a proper basis for Judge Pidwell’s s 78 order, so the order, and therefore the detention of L, was not unlawful. On 18 September 2017 Mr L and Ms T filed a further habeas corpus application. It was declined by Duffy J under s 15 of the Habeas Corpus Act 2001 on 27 September 2017 as it concerned the same  issue that had been dealt with by Toogood J.

[7]    On 15 November 2017, the Court of Appeal declined the appeal by Mr L and Ms T of Toogood J’s decision.5  The interim s 78 order was lawful and, by then, the   s 67 determination had been made. The Court of Appeal noted that “even if the appeal had succeeded, a further s 78 order would have been inevitable, given the

3      Chief Executive of the Ministry of Vulnerable Children, Oranga Tamariki v T FC Waitakere FAM 2017-090-000182, 12 April 2017 (Minute of Judge B R Pidwell) at [9].

4      L v Chief Executive of the Ministry of Vulnerable Children, Oranga Tamariki [2017] NZHC 2322 at [14] and [17].

5      Court of Appeal decision, above n 1.

circumstances outlined in the decision on the s 67 order”.6 The Court understood preparation of an application for a s 101 custody order, to replace the s 78 order, was underway.7

The s 67 determination

[8]    In the Family Court, Judge A M Manuel held a two-and-a-half day hearing of evidence from the parties and experts and submissions from the parties and counsel for the child. On 30 October 2017, Judge Manuel declared L was in need of care and protection under s 67. She examined the mental health of the parents, potential drug and alcohol abuse, transience, capacity to care for a baby in a motor park, lack of insight into parenting issues and lack of support.  Judge Manuel did not mention the s 78 order. In conclusion, she stated:8

I am satisfied that L’s needs cannot be met by other means; no other viable proposal has been presented. Under s 14(1)(b) OTA, his development or physical or mental or emotional wellbeing is likely to be impaired or neglected in a way which is likely to be serious and would otherwise be avoidable if he is returned to his parents’ care. Under s 14(1)(f) OTA, L’s parents are currently unable to care for him in a manner which will meet his welfare and interests, despite being willing to care for him.

The present habeas corpus application

[9]    On Friday 24 November 2017, Mr L and Ms T made a further application for habeas corpus on the basis the s 78 custody order had expired and had not been replaced. On Monday 27 November 2017, I sought responses from the parties to my inclination to transfer the application to the Family Court under s 13(2) of the Habeas Corpus Act 2001. The applicants did not respond. The Crown opposed the transfer, making submissions about why the detention was, or would be made, lawful. I concluded that issue was properly the subject of a habeas corpus application, which I heard on Friday 1 December 2017.

6 At [3].

7 At [13].

8      Ministry of Vulnerable Children v T [2017] NZFC 8295 at [69].

Further Family Court direction

[10]   On 29 November 2017, following my minute, counsel for the Chief Executive sought urgent clarification from the Family Court of the effect of Judge Manuel’s judgment on the s 78 order. Counsel noted the Court’s s 67 judgment did not “specifically require a plan to be prepared or specifically direct that the section 78 order continue pending preparation of a plan pursuant to section 128 and consideration of that plan” as was “usual practice” and, in counsel’s submission, was “implicit in the judgment”. Counsel requested that Judge Manuel “issue an amended or additional judgment confirming her intention, on making the [s 67] declaration, that the section 78 custody order continue pending preparation of a plan and the making of disposition orders pursuant to s 83 of the Act”. The same day, Judge Manuel made the following direction:

Having read the Ministry’s memorandum of 29 November 2017, for the avoidance of any doubt, my judgment of 30 October 2017 is amended pursuant to the slip rule to specifically include at [72] an order that the s78 OTA custody order is to continue pending preparation of a plan and the making of disposition orders pursuant to s83 OTA.

Law of habeas corpus regarding young people

[11]   In Bennett v Superintendent, Rimutaka Prison, the Court of Appeal stated that “[t]he great writ of habeas corpus ad subjiciendum – a writ of right – has been the means whereby in Great Britain over some hundreds of years, and in New Zealand since the founding of the nation, the lawfulness of a detention has been able to be tested, and, if found to be unlawful, the release of the detainee obtained.”9 It also stated “[n]or … is the writ to be diminished by its unnecessary use where another effective remedy is available through which compliance with the law can speedily be ensured and where, overall, the circumstances are not of a kind justifying resort to the writ.”10

[12]   The Habeas Corpus Act 2001 now governs most aspects of the writ. Its purposes include:

9      Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA) at [60].

10 At [60].

(a)reaffirming “the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty”; and

(b)“to make better provision for restoring the liberty of persons unlawfully detained by establishing an effective procedure for applications to the High Court for the issue of a writ of habeas corpus, and the expeditious determination of those applications”.

[13]   Section 9 of the Act provides an application for a writ of habeas corpus must be given precedence over all other matters before the High Court unless a judge considers the circumstances require otherwise. Judges must ensure every application is disposed of as a matter of priority and urgency. Section 14(1) provides that “if the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention”. Section 14(1A) empowers the Court to refuse an application, without requiring the defendant to establish detention is lawful, if satisfied such an application “is not the appropriate procedure for considering the allegations made by the applicant”. Otherwise, the Court must determine an application by refusing it or issuing the writ ordering release from detention, subject to s 13(2).

[14]In relation to people under the age of 16, s 13 of the Act provides:

13       Powers if person detained is young person

(1)In dealing with an application in relation to a detained person who is under the age of 18 years, the High Court may exercise the powers that are conferred on the Family Court by the Care of Children Act 2004.

(2)If the substantive issue in an application is the welfare of a person under the age of 16 years, the High Court may, on its own initiative or at the request of a party to the proceeding, transfer the application to the Family Court.

(3)An application referred under subsection (2) must be dealt with by the Family Court in all respects as if it were an application to that court under the Care of Children Act 2004.

[15]   In 2016 in TWA v HC the Court of Appeal noted the specialist jurisdiction and powers of the Family Court mean resort to habeas corpus in custody cases “will be rare in modern times” but continues to exist and does not depend on the physical restraint or the absence of consent on the part of the child.11 The Court quoted  Farbey and Sharpe’s text to the effect that habeas corpus in custody cases “differs fundamentally from its use to secure personal liberty” as it is used “not for the body, but for the soul of the child”.12

[16]   In TWA v HC the Court considered the child, S, was unlawfully detained. Custody orders under s 101 of the Act had been discharged and other Family Court orders were invalid. It considered the High Court had erred in finding the habeas corpus procedure was unavailable and quashed its order dismissing the application for the writ.13 However, the Court considered s 13(2) and (3) reflected “the development of the law of guardianship that, in issues affecting the care and protection of children, the paramount concern is the best interests of the child”.14 It considered s 13(2) was available to the Court up until its final disposition of an application for habeas corpus.15 The Court stated:16

S’s present care arrangements provide for her guardianship and day-to-day care. If they are removed without some alternative orders in place,  protection issues arise for S because TWA remains in prison. This case is clearly one in which the substantive issue in the application is the welfare of a young person under 16. Transfer of this application is the best way of ensuring that orders, which must be made to replace the impugned orders providing for S’s ongoing care, are made in her best interests. In light of the provisions of s 14(3), we are not required to issue the writ notwithstanding our finding that the existing orders are invalid. The issue by this Court of a writ of habeas corpus is plainly not the appropriate disposition of this application.

[17]   In the interim, until the Family Court could consider the application resulting from transfer under s 13(2), the Court invoked the High Court’s parens patriae

11     TWA v HC [2016] NZCA 459, [2017] NZAR 129 at [10].

12     Judith Farbey and R J Sharpe The Law of Habeas Corpus (3rd ed, Oxford University Press, Oxford, 2011) at 188 citing In Re Carroll [1931] 1 KB 317 at 331.

13 At [37].

14     At [39]

15 At [42].

16 At [43].

jurisdiction to protect those legally unable to care for themselves.17 It directed, in the interim, the arrangements for the care and custody of S continued.

[18]In denying leave to appeal, the Supreme Court agreed:18

[11]              Even assuming Mr A is correct in his contention that, where a detention is held not to be lawful, an order for release should be made, it would not be appropriate to make such an order without exercising the s 13 powers to ensure continuing care arrangements for a child under [s] 16. This could include remitting the issue to the Family Court, (as a specialist court), under s 13(2), to decide on the care arrangements that would meet the best interests of the child involved.

[12]              If the matter is remitted to the Family Court (as it was here), then interim care arrangements will need to be put in place to care for the child pending a Family Court decision. We accept the submission made by the Chief Executive that, on the approach taken by the Court of Appeal, interim orders for S’s care could not have been made under s 13(1) of the Habeas Corpus Act because of the existence of orders under the CYPF Act. We also accept the submission that, assuming the matter had been dealt with in the High Court, S could and would not have been left outside of the protection  of the law. This means that, had the matter been dealt with in the High  Court, it would have exercised the parens patriae jurisdiction, which is preserved by s 16 of the Judicature Act 1908 and s 13(2) of the Care of Children Act 2004.

…

[16] We do not accept this submission [that the Court of Appeal could not assume that it was in S’s best interests effectively to continue the impugned orders]. The orders merely continue existing care arrangements pending a full Family Court consideration. Nothing has been raised to suggest it would be in S’s best interests to disrupt (on an interim basis) her current living arrangements with a family she has been with since birth. What is in her  long term best interests will be decided by the Family Court.

Submissions

Mr L and Ms T’s submissions

[19]   At the hearing, Mr L submitted the s 78 order expired on 30 October 2017 meaning the continued detention of L was unlawful and he must be returned to his parents. He submitted the only reason the child is in custody is because Oranga Tamariki considered he was a subsequent child, which it now accepts he was not.

17 At [44].

18     TWA v HC [2016] NZSC 136 at [11], [12] and [16] (citations omitted).

[20]   Mr L submitted ss 67 and 78 provide for different orders and the slip rule does not allow an order under one to be made by amending a decision under the other. He submitted Oranga Tamariki acted unlawfully, and contrary to natural justice, by applying without notice for a custody order and the Family Court abused its powers by making an amendment to a finalised judgment. He submitted the slip rule is not to be taken lightly and that is what the Family Court did.

[21]   Mr L said he and Ms T have done parenting courses, they know how to look after the baby in a safe manner and they are prepared to do more courses. He says there are no welfare concerns for the baby, they have community support, are of sound mind and have no mental health issues that would adversely impact on their parenting skills.

[22]   He submitted Baby L has been detained illegally for more than a month in gross violation of the baby’s rights and the writ of habeas corpus should be issued. Alternatively, if it is not appropriate to be dealt with through habeas corpus, he submitted it should be transferred to the Family Court.

Chief Executive’s submissions

[23]   In opposing reference to the Family Court, the Chief Executive submitted it was implicit in the s 67 decision that the s 78 order continues pending preparation of a s 128 plan. At the hearing, Ms Ewing, for the Chief Executive, acknowledged the s 78 custody order expired on 30 October 2017. Ms Ewing also submitted the Family Court had corrected its s 67 decision to include a continuation of the s 78 order or, alternatively, that it made a fresh order under the slip rule. She submitted the extension of the custody order inevitably follows from the s 67 declaration so it was a correction of an omission that would inevitably have been made. She likened it to use of the slip rule in Hanmore v Ganley to add the requirement to pay interest to an order to pay the judgment sum.19 She acknowledged the case law on the slip rule involves a formal application being made, on which submissions would be heard. And she accepted the right to natural justice is “in play”.  But she submitted there  has to be scope for the slip rule to be exercised without a full hearing.

19     Hanmore v Ganley (1995) 9 PRNZ 25 (HC).

[24]   Alternatively, Ms Ewing relied on TWA v HC to submit the matter should be referred back to the Family Court under s 13(2) of the Act, as I had originally suggested.

Issue 1: Is L unlawfully detained?

[25]   Ms Ewing, for the Chief Executive, concedes the s 78 order expired on 30 October 2017, as she must. The terms of the order itself provided it expired on determination of the application for the s 67 declaration. The application was determined on 30 October 2017. Continuation of the s 78 order was not explicit or implicit in the s 67 decision. Section 78(2) explicitly provides the Family Court may make an order under s 78(1) where it “has made a declaration under s 67 and has adjourned the proceedings pending their disposition”. But no such order was made.

[26]   Neither do I consider Judge Manuel’s direction on 29 November 2017 was lawfully made under the slip rule. Rule 52 of the Oranga Tamariki Rules 1989 provides “[c]lerical mistakes in judgments or orders, or errors arising in judgments  or orders from any accidental slip or omission, may at any time be corrected by the court or a Judge or a Registrar”. As the Chief Executive submitted, it is not substantively different from r 11.10 of the High Court Rules 2016. But the amendment purportedly made on 29 November 2017 does not correct a clerical mistake or a slip in expression in the judgment. It makes a substantive and  substantial change to the content of the legal orders made. The slip rule cannot be used to vary an order in such a fundamental way or to improve the judgment.20 As Mr L submits, that goes beyond the scope of the slip rule. It vitiates the purported direction irrespective of the breach of natural justice in not hearing from Mr L and Ms T before making the direction.

[27]   Accordingly, I conclude the applicants are correct that L has been unlawfully detained since 30 October 2017.

20     R v Cripps, ex p Muldoon [1983] 3 All ER 72 (CA), relied on in, for example, Allan Scott Wines & Estates Holdings Ltd v Lloyd (2006) 18 PRNZ 1999 (HC).

Issue 2: What orders should be made?

[28]   As in TWA v HC, the care and protection issues involved in this case mean I do not consider a finding of unlawful detention must lead to issuing a writ of habeas corpus. Under s 4 of the Care of Children Act 2004, s 6 of the Oranga Tamariki Act 1989 and art 3 of the United Nations Convention on the Rights of the Child, the welfare and best interests of the child must be the paramount consideration. Those interests are under active consideration by the Family Court. Five weeks ago, the Family Court made a determination under s 67 that L should not be returned to his parents’ care. The parents are able to appeal that and, if they have followed the advice of the Court of Appeal, may already have done so.21 It would be irresponsible of me to ignore that context by issuing a writ that returns L to his parents’ care for the first time.

[29]   The Court of Appeal and Supreme Court have held that, in such circumstances, I have jurisdiction to transfer the application to the Family Court under s 13(2) of the Habeas Corpus Act 2001 at this point in the proceeding. Despite the Chief Executive’s previous opposition to that course of action, Ms Ewing submitted that should be done if wrong about the lawfulness of the detention. And Mr L submitted the application should be transferred to the Family Court if it was not appropriate to deal with it through a writ of habeas corpus.

[30]   I consider transferring the application to the Family Court, which must treat it as an application under the Care of Children Act 2004, is the best way of ensuring that orders are made in L’s best interests. The Family Court will then have before it an application by the parents, against the Chief Executive. The Court will need to consider, and seek the parties’ views, on how the application is best considered under the Care of Children Act.

[31]   TWA v HC is also authority for my jurisdiction to provide for the interim custody of L under the parens patriae jurisdiction of the High Court. I may also have the option, under s 13(1) of the Habeas Corpus Act 2001, of deploying powers under the Care of Children Act that were not available on the Court in TWA. But the

21 Court of Appeal decision, above n 1, at [13].

parties have not made submissions on that. I consider the parens patriae jurisdiction is sufficient for the interim purposes here. I continue the existing arrangements for the care and custody of L under that jurisdiction until the Family Court determines the application I transfer to it.

Result

[32]I make the following orders:

(a)I transfer the application for a writ of habeas corpus to the Family Court under s 13(2) of the Habeas Corpus Act 2001. The Family Court will need to consider, and seek the parties’ views, on how the application is best considered under the Care of Children Act 2004.

(b)I place L in the custody of the Chief Executive of the Ministry of Vulnerable Children, Oranga Tamariki, until that application is determined.

(c)I preserve the anonymity of the applicants and child by prohibiting publication of their names or identifying particulars and directing the file is not to be searched except by leave of a judge.

Palmer J