L v Chief Executive Oranga Tamariki Ministry for Vulnerable Children
[2018] NZHC 1420
•14 June 2018
NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-673
[2018] NZHC 1420
BETWEEN L
First Applicant
T
Second ApplicantAND
CHIEF EXECUTIVE ORANGA TAMARIKI – MINISTRY FOR VULNERABLE CHILDREN
Respondent
Hearing: 12 June 2018 Appearances:
No appearance for Applicants
M Bryant and T Burgess for the Respondent
Judgment:
14 June 2018
JUDGMENT OF MUIR J
This judgment was delivered by me on Thursday 14 June 2018 at 3.00 pm
Pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
Counsel/Solicitors:
M Bryant, Crown Law Office, Wellington T Burgess, Crown Law Office, Wellington
Copies to:
The First and Second Applicant
L v CHIEF EXECUTIVE ORANGA TAMARIKI – MINISTRY FOR VULNERABLE CHILDREN [2018] NZHC 1420 [14 June 2018]
What I am required to decide
[1] On 16 April 2016 Mr L and Ms T filed what they identified as an “Interlocutory Application Without Notice for an Injunction” against Oranga Tamariki Ministry for Vulnerable Children in terms requiring it to:
… stop classifying us as parents that meet the S 18B and S 14(1)(ba) criteria parents of a subsequent child of the Oranga Tamariki Act 1989, stop turning (sic) at our house unannounced under false pretendences (sic) and stating that there is a need for an S18A assessment of the Oranga Tamariki Act 1989, when we as parents dont (sic) meet the subsequent child criteria and our unborn baby is not a subequent (sic) child.
[2] The application was considered by me the same day as Duty Judge. I declined to deal with it on a without notice basis and directed it be served.
[3] Subsequent procedural orders were made by Woodhouse J with a hearing of the on-notice application allocated for 12 June 2018. In terms of such orders the applicants were to file and serve written submissions by 21 May 2018. This did not occur but on 29 May they filed a memorandum setting out their position on the application and inviting orders in terms essentially preventing the Ministry from “harassing” and “persecuting” them or from “sending[ing] social workers to our house”.
[4] In an earlier memorandum dated 30 April 2018 the applicants also purported to expand their application to include a declaration that the “subsequent child” provisions of ss 18A–D of Oranga Tamariki Act 1989 (the Act) are inconsistent with the Bill of Rights Act 1990 as involving an element of “double jeopardy”.
[5] Such an application for declaration cannot be dealt with at an interlocutory stage. If it is to be pursued it must be by way of a statement of claim (of which there is none currently before the Court), subject to case management in the usual way. I decline therefore to deal further with it in the context of the interlocutory application. My conclusion in that respect is reinforced by the Ministry concession, referred to in my next paragraph, which results in the “double jeopardy” argument in relation to ss 18A–D having no practical application to the applicants’ present circumstances.
[6] As to the form of injunctive relief originally sought, the Chief Executive of Oranga Tamariki (the Chief Executive) has confirmed in writing that the procedure for the assessment of a parent of a “subsequent child” in s 18A–D of the Act does not apply to the applicants. That is because it applies only to the persons described in s 18A(1), which in turn requires the person to be “a person described in s 18B”. Section 18B relevantly provides that a person described in s 18B includes a person “who has had the care of a child or young person removed from that person” and where the Court has determined or a family group conference has agreed “that there is no realistic possibility that the child or young person will be returned to the person’s care”. As the Chief Executive accepts, the applicants are not persons described in s 18B of the Act.
[7] It is not clear from Mr L’s various memoranda whether, in light of the Chief Executive’s advice, he continues to seek injunctive relief in the terms originally sought so as to include the s 18B classification point but I am satisfied that, even if such relief was available, it is unnecessary in light of the Chief Executive’s concession which is again repeated in the written submissions filed by her counsel. The proposed relief is in that context superfluous and the Court’s discretion to grant it is not one appropriately exercised.
[8] Substantively therefore that leaves me to decide whether an interlocutory injunction (or equivalent declaratory relief) should be granted to stop what the applicants allege is harassment and persecution and to stop the Chief Executive sending social workers to their home.
[9] Because of such alleged “harassment” the applicants state that they are currently “in hiding”. They did not therefore appear at the hearing and invited me to consider their application on the papers which they have filed.
Background
[10] Ms T has four older children by a previous relationship each of whom have been declared in need of care or protection under s 67 of the Act and none of whom currently reside with the applicants. Three are in the custody of Oranga Tamariki in a long-term placement pursuant to a custody order which was made under s 101 of the
Act on 25 November 2005. The fourth has been in the custody of long term caregivers since birth. Parenting and guardianship orders have now been made in this child’s favour under the Care of Children Act 2004.
[11] Subsequently Ms T entered into a relationship with Mr L and in 2017 they had a child together. On 30 October 2017, the Family Court declared this child to be in need of care and protection under s 67 on the grounds set out in ss 14(1)(b) and (f) of the Act and the child is now in the custody of the Chief Executive pursuant to an order of this Court made in its parens patriae jurisdiction. An appeal from the Family Court’s decision is pending.
[12] The applicants are expecting another child in July 2018. In respect of such unborn child the Chief Executive received reports of concern in February 2018. In particular, on 12 February 2018 one of Ms T’s family members reported concern about her alleged poor mental health and the fact that her five older children had been removed from her. The following day the allocated social worker for the child born in 2017 reported similar concerns.
[13] As a result of these advises, the Chief Executive commenced an investigation, as she considered she was obliged to do under s 17 of the Act. In particular:
(a)On 26 March 2018 Social Worker Ms Tebbutt made telephone contact with Ms T’s midwife who expressed concerns about Ms T’s presentation. In particular she described her as “very vague” and almost “trancelike”.
(b)On 26 March Ms Tebbutt and social worker, Ms Bird, attempted to visit the applicants’ home. Although the second applicant came to the door she soon after returned with the first applicant who stated that the applicants were not legally required to talk to the social workers.
(c)On 29 March Ms Bird and social worker Ms Rameka made a further attempt to visit the home.1 The second applicant answered the door but refused to speak with either. It is said that she was wearing a dress which was falling down and had purple makeup smeared over her face.
[14] On 11 and 16 April, a family member of Ms T contacted Ms Tebbutt to express further concerns about Ms T and the unborn child. Ms Tebbutt then contacted the whanau caregiver of the couple’s youngest child who reported concerning behaviour when Ms T last visited the child. In particular, she was said to have sat “talking to the wall” and to have become angry with people not present in the room.
[15] On 7 May 2018, a further attempt was made by Ms Tebbutt to engage with the applicants while simultaneously serving Court documents completed by the Rotorua office of Oranga Tamariki. When Ms Tebbutt asked whether she would be able to make a time to meet with Ms T, she shook her head and closed the door. Ms Tebbutt describes Ms T’s interactions that day as being almost childlike and that she appeared extremely thin despite being seven months’ pregnant. She says that Ms T also had what appeared to be blisters on her lips and that her clothing was unkempt.
The statutory framework
[16] The Chief Executive relies on ss 15 and 17 of the Act as the source of her obligation to undertake her ongoing investigations. These provide:
15 Reporting of ill-treatment or neglect of child or young person
Any person who believes that any child or young person has been, or is likely to be, harmed (whether physically, emotionally, or sexually), ill-treated, abused, neglected, or deprived may report the matter to the chief executive or a constable.
17Investigation of report of ill-treatment or neglect of child or young person
(1)If the chief executive or a constable receives a report under section 15 relating to a child or young person, [[they]] must,—
1 Ms Tebbutt did not visit on this occasion, having received a so called “cease and desist” letter from the first applicant.
(a)as soon as practicable after receiving the report, if it appears that an investigation is necessary or desirable, commence an investigation or arrange for an investigation to be commenced into the matters contained in the report to the extent that an investigation is necessary or desirable; and
(b)as soon as practicable after an investigation has commenced, consult a care and protection resource panel in relation to the investigation; and
c)unless it is impracticable or undesirable to do so, as soon as practicable after a decision is made not to investigate or the investigation has concluded, inform the person who made the report—
(i)whether the report has been investigated; and
(ii)if so, whether any further action has been taken.
(2)If, after an investigation, the chief executive or constable reasonably believes that the child or young person is in need of care or protection, [[they]] must, as soon as practicable, notify a care and protection co- ordinator in accordance with section 18.
[17] Because of the confirmed position that the Chief Executive does not rely on the “subsequent child” provisions of ss 18A–D I do not set such provisions out. They were inserted into the Act by s 9 of the Children Young Persons and their Families (Vulnerable Children) Amendment Act 2014 with effect from 30 June 2016.
[18] At the same time, the Act was amended to include a definition of “subsequent child”:
Means a child, born or unborn, who has a parent who is a person described in s 18B.
[19]“Child” is in turn defined by the Act as meaning:
A person under the age of 14 years.
Discussion
[20] The Chief Executive raises as a threshold issue, albeit one which she says does not require decision, the unavailability of injunctive relief against the Crown. She relies on proviso (a) to s 17(1) and on s 17(2) of the Crown Proceedings Act 1950:
…
Provided that —
(a)Where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the Court shall not grant an injunction or make an order for specific performance, but may instead make an order declaratory of the rights of the parties; and
…
(2) The Court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown.
[21] The applicants say that such restriction applies only against the Crown as “Monarch” and not as “Executive”. They rely on the observations of Lord Templeman in M v The Home Office:2
A litigant complaining of a breach of the law by the Executive can sue the Crown as Executive bringing his action against the Minister who is responsible for the department of state involved, in the present case the Secretary of State for Home Affairs. To enforce the law the courts have power to grant remedies including injunctions against a Minister in his official capacity.
[22] In Paul v Attorney-General Clifford J considered whether these observations applied in the New Zealand context.3 He said:
[25] As a preliminary point, Mr Ellis accepted in the hearing before me that the Court is prevented from granting injunctive relief against Crown officers by virtue of s 17(2) of the Crown Proceedings Act 1950. Ms Casey, for the respondent, argued further that the Crown Proceedings Act also precludes the Court from making an order for prohibition against Crown officers but conceded that the Court could issue declaratory relief. I am not currently persuaded that the Court does not have jurisdiction to issue prohibition in these circumstances (see M v Home Office [1994] 1 AC 377 (HL) and Joseph Constitutional & Administrative Law in New Zealand (3ed 2007) at paras 16.3.4 and 26.2.2(1)). As noted in Joseph, M v Home Office distinguished between the Crown as Monarch and the Crown as Executive. The latter includes Ministers in their official or executive capacity, who (unlike the Crown as Monarch) enjoy no immunity from the mandatory orders. It would appear that this characterisation is equally applicable in New Zealand (Joseph at paragraph 26.2.2(1)(b)). However, for the purposes of this
2 M v The Home Office (1994) 1 AC 377 at 395.
3 Paul v Attorney-General [2009] NZAR 405 (HC).
application I do not need to decide this question and, in the circumstances of urgency in which this application was heard, decline to consider this further.
[23] Because I am satisfied that it would be otherwise inappropriate to grant the injunctions sought by the applicants and am similarly dealing with an urgent application, it is likewise not necessary for me to consider this issue further. Typically in New Zealand the restriction on injunctive relief against the Crown is adequately compensated by the availability of declaratory relief. However, the applicants do not identify in either their interlocutory application or subsequent memoranda the terms any declaration the Court might make as an alternative to an injunction preventing “harassment” and there is the additional problem that neither the Declaratory Judgments Act 1908 nor Part 7 Subpart 3 of the High Court Rules, which deal with interim relief, appear to contemplate an interim declaratory order.4
[24] However, assuming (without deciding) that the Court could entertain an application for interim injunction in the terms sought, I turn to consider the merits of the application.
[25]The approach is well recognised in terms that:
(a)the applicant must establish that there is a serious question to be tried;
(b)as a second step the balance of convenience must be considered which requires consideration of impact on the parties of granting or refusing the order sought; and
(c)finally an assessment of the overall justice of the positions required as a cross-check.
[26] In response to a Minute from me in advance of the hearing in which I asked to be addressed on whether the Chief Executive has authority to commence an investigation under s 17 of the Act in respect of an unborn child, the applicants submit she has no such authority. They contrast the provisions under ss 18A–D where jurisdiction arises in respect of a “subsequent child”, defined as including an unborn
4 As opposed potentially to a declaratory order limited in time.
child, and the Chief Executive’s obligations under s 17 that apply only in relation to a “child” meaning (in terms of s 2) a person under the age of 14 years.
[27] I do not accept that the ability of persons to make reports under s 15 or the consequent obligations of the Chief Executive under s 17 are restricted to children who have been born. Two decisions, one of the Family Court and one of this Court are relevant in this respect.5
[28] In the matter of Baby P (an unborn child) Judge Inglis concluded that the term “child” in s 2(1) of the Act could include an unborn child on the basis that the child was “a young human being, at a present stage of development where he could now live independently of the mother”.
[29] While he did not agree with Judge Inglis’ reasoning, Heath J came to a similar conclusion (in respect of the definition of child in the Guardianship Act 1968) in Re an Unborn Child. He said that such conclusion was supported by the facts that:
(a)the United Nations Convention on the Rights of the Child as ratified by New Zealand recognised the legal protection of a child both before and after birth;
(b)orders forbidding the mother of an unborn child from acting in certain ways could be made in aid of the protective jurisdiction exercised by the Court; and
(c)other legislation in New Zealand protected the interests of unborn children to varying degrees.
[30]His Honour concluded that:6
Accordingly, an interpretation which fits with New Zealand’s international obligations and does not do violence to the words of the Statute is to be preferred to an interpretation which draws a bright line between two concepts (an unborn child and a child) which, in reality are part of the same continuum.
5 In the matter of Baby P (an unborn child) [1995] 13 NZFLR 577 (HC); Re an Unborn Child [2003] 1 NZLR 115 (HC).
6 At [66].
[31]He further found himself:7
… in agree[ment] with the observations of Judge Inglis [in In Re Baby P] that it will be a matter of discretion in individual cases whether such jurisdiction should be exercised. This ability to be focused on the utility and need for such orders avoids the otherwise impossible task of endeavouring to determine the precise moment in time (for legal purposes) that an unborn child is subject to the Court’s jurisdiction.
(emphasis added)
[32] I consider a similar focus on “utility and need” is appropriate in considering the powers (and obligations) of the Chief Executive under s 17. The purposes of ss 15 and 17 are prophylactic in that they provide part of the mechanism by which children who might otherwise be abused or neglected can be identified and timeous steps appropriately taken.
[33] Consistent with that approach, s 15 recognises that reports may be made where there is no present harm or neglect but where it is “likely”, that is, likely to occur at some stage in the future.
[34] The utility and need for proper investigation in advance of the birth of the child in circumstances where a s 15 report has been received is in my view inescapable. The overriding object of the Act is to “promote the wellbeing of children, young persons and their families and family groups” including by “providing for the protection of children and young persons from harm, ill-treatment, abuse, neglect and deprivation”8 and in all matters relating to the application of the Act, “the welfare and interests of the child or young person shall be the first and paramount consideration”. If, on receipt of such a report, the Chief Executive was prevented from undertaking any s 17 investigation until the birth of the child, potential could exist for significant harm or neglect before the Court was in a position, for example, to consider an application under s 67 of the Act9 or resulting custody or guardianship orders under s 83.
[35] The Act’s objectives are in my view only adequately met if the broad definition of “child” adopted by Heath J in the Guardianship Act context is maintained. I agree
7 At [63].
8 Oranga Tamariki Act 1989, s 4(e).
9 For a declaration that the child is in need of care and protection.
with his approach whereby, having recognised that an unborn child may be the subject of jurisdiction under the Act, the question of whether it is appropriate in any given case for the Court to intervene is one in its discretion. What is being sought in this case is that I exercise such discretion in a way potentially adverse to the wellbeing of the child at birth. For obvious reasons, I regard that as inappropriate.
[36] The applicants submit, however, that this approach cannot survive introduction of ss 18A–D and the new definition of “subsequent child”. Since that definition specifically recognises an unborn child they say that the definition of “child”, which contains no such recognition, must now be confined to those who have been born.
[37] I cannot accept that submission. It would assume a legislative intention to protect the safety and welfare of subsequent but not first born children, which has no rational basis.
[38] Nor do I accept that ss 18A–D represent some form of exclusive code in relation to subsequent children such that, if (as here) they do not apply, the Chief Executive is powerless to investigate concerns in respect of an unborn subsequent child. If the criteria in s 18A(1) are satisfied then the Chief Executive must undertake an assessment of whether the parent meets the criteria in s 18A(3) which in turn involves assessing whether they are “unlikely” to inflict or allow harm. If the Chief Executive is not satisfied in this respect she must then apply for orders under s 67.10 The provisions therefore effectively assume a starting point from which the Chief Executive must, as a result of her assessment processes, be dissuaded. There is no equivalent in relation to investigations under s 17. But that does not mean that s 17 has no application at all to subsequent children. It is simply that the “reverse onus” provisions do not apply.
[39] I accept also the Chief Executive’s submission that if on application under s 18A(4) and (5) the Court decides to grant a s 67 declaration it may then make disposition orders (including custody and guardianship orders) under s 83 of the Act. The Court’s power under s 83 is in respect of a “child or young person” and accordingly if “child” does not also include an unborn child for the purposes of this
10 Oranga Tamariki Act 1989 ss 18A(4) and (5).
section the “unborn child” clarification in the “subsequent child” definition is deprived of meaningful application.
[40] Turning then to the facts of this case, I do not consider any criticism of the Chief Executive justified in terms either of:
(a)her decision that an investigation was necessary or desirable based on the reports received: or
(b)the nature of the investigation which has since taken place.
[41] There have, to date, been three visits to the applicants’ home over a two-month period. In each case I accept that the inquiries were conducted professionally and on a basis that, if it was inconvenient to meet at that time, alternative arrangements could be made. I do not consider that any of this amounts to “harassment”.
[42] I accept that in the conduct of a s 17 investigation it will always be desirable (if not essential) for the Chief Executive to attempt to engage with the parents of the child concerned and if such engagement is not permitted her assessment of whether a child is in need of care or protection (and accordingly whether notification to a care and protection co-ordinator is required under s 18) will necessarily have to proceed on what is less than the best available information. If, as Mr L suggests in his various memoranda, he and Ms T are in a position to provide a safe and supportive home environment for their expected child, then by remaining in hiding and refusing to speak with the Ministry’s social workers the applicants miss an obvious opportunity to disabuse the Chief Executive of the concerns which have been raised about Ms T’s current mental health and her ability adequately to parent her imminently expected child. Although there is no obligation to engage there are good reasons therefore why the applicants should do so.
[43] It follows from what I have said, however, that I do not consider there to be a serious question to be tried in terms of the Chief Executive’s ability to further her current inquiries. In my view she has an obligation to do so in respect of an unborn
child where she has received a report that such child is likely to be (among other things) neglected or deprived on birth.
[44] Nor, as suggested by the applicants in their memorandum dated 29 May 2018, can her inquiries, in my view, be considered an “unreasonable search and seizure”. This must be so even on an interpretation of s 21 of the Bill of Rights Act which includes rights to privacy.11 It cannot be unreasonable to make the inquiries statutorily mandated in respect of a child (born or unborn) who has been identified as at likely risk. Obviously, however, there will come a point when the applicants’ continued refusal to engage with the Ministry (if that is their decision) will render any future intended contact with them futile.
[45] I likewise consider the balance of convenience substantially to favour refusal of the injunction which the applicants seek. The importance of the Chief Executive’s inquiries in terms of the potential welfare of the unborn child is, in my view, the decisive factor in terms of the balancing exercise.
[46] Accordingly, I consider the interlocutory application for injunction appropriately dismissed, and any equivalent declaration (even if capable of being made on an interlocutory application, which I doubt), appropriately declined. Likewise, the applicants’ proposed orders that the Chief Executive or her officers be “fined” are dismissed. I accept her actions to date as appropriate and there is, in any event, no jurisdiction for such relief.
Respondent’s application to strike out
[47] This application is in my view otiose. The applicants brought an interlocutory application for injunction without statement of claim. Although r 7.53(2) provides that they could do so only in a case of urgency, the Chief Executive chooses not to take issue with the fact that none has been filed. Nevertheless, as matters currently stand, there is no pleading before the Court in respect of which a strike out order may be made under r 15.1.
11 The applicants cite R v Williams [2007] NZCA 52, [2007] 3 NZLR 207; and Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 in support of this proposition.
[48] Rule 1.3 defines pleading as “includes a statement of claim, a statement of defence, a reply and a counterclaim”. Although expressed to be inclusive, I interpret the limits of inclusion to be those specified. An interlocutory application for injunction filed prior to commencement of a proceeding by statement of claim is not, in my view, an appropriate subject of a strike out application. Such an interlocutory application is either granted or dismissed and, having been dismissed, there is not in this case any pleading before the Court capable of being struck out. If the applicants choose to further advance their claim for declaratory relief (in the form of alleged inconsistency with the Bill of Rights Act or otherwise) they will need to do so by way of statement of claim filed in the normal way. At that point, the Chief Executive can further consider her rights to apply for orders striking out the pleading.
Result
[49] I dismiss the applicants’ application for interim injunction (or equivalent declaration) and for the imposition of fines.
[50]I dismiss the respondent’s application to strike out.
Costs
[51] The Chief Executive confirms that she does not seek costs on the interim injunction application nor are they appropriately awarded on the application to strike out having regard to the applicants’ unrepresented status.
[52]Accordingly, costs lie where they fall.
Muir J
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