Lowe v Chief Executive of the Ministry for Vulnerable Children
[2017] NZHC 2564
•20 October 2017
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.
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002056 CIV-2017-404-002058 [2017] NZHC 2564
IN THE MATTER OF an appeal from the Family Court and an appeal under part 20 of the High Court Rules IN THE MATTER OF
the Care of Children Act 2004
BETWEEN
LOWE
Applicant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN
First Respondent
WAY
Second Respondent
Hearing: 4 October 2017 Counsel:
S L Abdale for the Applicant
T Burgess and M C Bird for the Respondents M K Headifen for the Child
A J Cooke (Appearing to Assist the CourtJudgment:
20 October 2017
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards
LOWE v CHIEF EXECUTIVE, MINISTRY FOR VULNERABLE CHILDREN [2017] NZHC 2564 [20 October 2017]
on 20 October 2017 at 4.30 pm, pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Introduction
[1] This is a distressing case about a nine-year-old boy who has been the subject of acrimonious and bitter litigation between his parents for over half his life.
[2] The latest instalment is an application by the mother for a stay of orders made in the Family Court on 14 August 2017 (the August Orders). The August Orders placed the child (whom I shall refer to as J) under the guardianship of the Court for general purposes and appointed the first respondent, the Chief Executive of the Ministry for Vulnerable Children (Chief Executive), as agent of the Court.1
[3] The stay application was set down for an urgent one-hour hearing on 4 October 2017. At the conclusion of the hearing (which occupied half a day), I made orders setting down the appeal for hearing on 24 October 2017 and granting a partial stay pending the hearing. The full orders made are set out at the conclusion of this judgment. My reasons for making those orders now follow.
The August Orders
[4] There were a number of applications before the Court at the August hearing including:
(a)Applications by J’s mother to vary or discharge an earlier guardianship order for a specific purpose made on 21 July 2017; and to suspend the parenting orders made on 24 June 2015. The 21 July 2017 orders were made to allow Dr Calvert to interview J.
(b)Applications by the father and Chief Executive for an order placing J under the guardianship of the Court for general purposes with the Chief Executive to be appointed agent of the Court.
1 [Lowe] v [Way] FC Auckland FAM-2012-004-3253, 14 August 2017 [Oral Decision] at [5]; and [Lowe] v [Way] FC Auckland [2017] NZFC 6365 [Reasons] at [64]. The names used in this judgment are pseudonyms.
[5] Judge A M Manuel considered the applications in light of the principles in s 5 of the Care of Children Act 2004 (COCA). She observed that the mother’s application would be in accordance with the child’s express wishes and might have the effect of alleviating his immediate distress.2 However, she noted that making the orders sought might not protect the child’s safety if he was at risk from negative influence, anxiety and distress in his mother’s care. Furthermore, she considered that making the orders sought by the mother might have the effect of finally determining the proceedings without the advantage of expert evidence or cross-examination.3
[6] In terms of the guardianship applications, the Judge reasoned that the grant of the application would meet the requirement to protect the child’s safety, once directions about his day-to-day care, contact and upbringing were made after reporting by the Ministry for Vulnerable Children (Ministry). In that respect, the Judge found that the grant of the application would be in accordance with the principles in s 5(d),
(e) and (f) of COCA insofar as they can be achieved. However, it might not alleviate the child’s immediate distress, and would not be in accordance with his express views and wishes.4
[7] After weighing these factors and considering J’s distress, the Judge concluded that the time had come to place J in the guardianship of the Court for general purposes. The Judge’s reasoning was expressed as follows:
[57] While it is possible that the mother’s proposal may alleviate the child’s immediate distress by ending contact with his father, his father’s family and court appointed professionals, and bringing the case to a close, there can be no certainty that this will ease his distress. If it is caused by the mother’s influence, as the father claims, then it may not have that effect. The mother’s proposal will almost inevitably result in the loss of the child’s relationship with a father who has been fully involved for many years in the child’s care and upbringing. If no psychologist’s report is completed and the proceedings come to an end, there will be no proper inquiry into this child’s circumstances and views and wishes.
[58] The proposal by the father and the Ministry on the other hand offers the prospect of a proper inquiry into the child’s situation, while he is professionally supported in his current distress. It is heartbreaking that the conflict between the parties has continued for so long without resolution. It would be even worse, however, if there was no properly considered or satisfactory resolution for this child. He deserves better.
2 Reasons, above n 1, at [53].
3 At [54].
4 At [55].
[8] The mother’s application was accordingly dismissed. The Chief Executive’s application was granted. The Judge also made a number of other orders, namely:
(a)Dr Calvert was requested to complete her s 133 COCA report as soon as possible.5
(b)The Chief Executive was requested to appoint a senior social worker to manage arrangements and assist with the decision-making on guardianship matters for J.6
(c)The Chief Executive was directed to file and serve a detailed report to the Court and proposed plan for J within 14 days, concerning the child’s health needs (with particular regard to his mental health), care arrangements, schooling, privacy issues and any other relevant guardianship matters. Matters to be addressed in that report were set out in the judgment and included placement of the child with one or other or both parents, contact with parents and wider family, schooling, and the child’s health needs.7
(d)Until 1 September 2017, the Chief Executive was to direct matters of care, contact, and schooling, but all other guardianship matters after that date were to be referred back to the Court for direction.8
(e)A senior psychologist was directed to prepare reports from time to time to assist in the making of guardianship directions for the child.9
[9] The guardianship order was to be reviewed three months from the date of the decision (i.e. in November 2017).10 Leave was reserved to bring the matter back before the Court on 48 hours’ notice.11
5 At [66].
6 At [67].
7 At [68].
8 At [69].
9 At [70].
10 At [73].
11 At [76].
Steps following the August Orders
[10]In accordance with the August Orders:
(a)The Chief Executive filed a social work report on 28 August 2017; and
(b)Dr Smith was appointed to provide assistance to the social worker and Ministry.
[11] On 13 September 2017, the matter came before Judge Manuel for review. As noted in the Judge’s minute, the Chief Executive had filed her report by that time and submissions were made on it at the hearing.
[12]Further directions were made by the Judge including the following:
(a)Dr Calvert was to provide an interim s 133 report by 5.00 pm on 22 September 2017 (which has since been provided).
(b)The Ministry was to file a management plan for the child by 6 October 2017. That plan was to include, but not be limited to, the matters set out at [68] of the judgment (referred to in [8](c) above).
(c)A further two-hour submissions-only hearing was to be convened to consider the reports and guardianship matters for J going forward.
(d)Leave was reserved to apply on 24 hours’ notice, rather than 48 hours’ notice.
The application for a stay
[13] The application for a stay was filed on 7 September 2017. The stay was sought pending an appeal of (a) guardianship orders made for a special purpose on 21 July 2017 and (b) the August Orders. The appeal of the guardianship orders in (a) has since been abandoned.
[14] An appeal date was not allocated on the first call in the appeals list, because at that time there was some uncertainty about which decisions of the Court were being
appealed and whether leave from the Family Court was required. Since that time, clarification around the decision being appealed has been provided, and a notice of appeal has been filed.
[15] The Chief Executive does not challenge jurisdiction on the ground that leave is required. All other parties are of the view that leave is not required. Accordingly, the question of leave is not before the Court and, for the purposes of resolving the stay application, I do not need to finally determine the issue. However, my provisional view is that Heath J’s decision in Fletcher v Blackburn – that leave is not required – is directly applicable in this case.12
[16] At the commencement of the hearing, I indicated that the date of 24 October 2017 was available to hear the appeal on an urgent basis. I adjourned for a short time to allow Ms Abdale to obtain instructions from her client, Ms Lowe, on whether she wanted to proceed with the stay application given the proximity of the hearing date. Her instructions were to proceed.
The parties’ positions
[17]Ms Lowe advanced her application for a stay on two grounds:
(a)The welfare and best interests of the child; and
(b)Refusal of a stay may render the appeal nugatory.
[18] Ms Abdale’s submissions in support of those grounds at the hearing may be summarised as follows:
(a)The Chief Executive’s powers under the guardianship orders were broad in nature, and there was a risk that she might take steps pursuant to the s 133 report that would have a deleterious effect on J.
(b)The Chief Executive had the power to uplift J from his mother’s care and to require him to attend further interviews with social workers, for
12 Fletcher v Blackburn [2009] NZFLR 354 (HC) at [22]-[32].
the purpose of the ongoing review. The prospect of being removed from his mother’s care to have access visits with his father, or being subjected to further social worker interviews, was not in J’s best interests.
(c)Ms Lowe would be unable to properly prepare for both her appeal hearing on 24 October 2017 and the further review hearings scheduled in the Family Court. The stay was therefore necessary to halt the Family Court proceedings to avoid a breach of natural justice.
[19] The Chief Executive abides the decision of the Court. However, she expresses concern at any delay or impediment to the Family Court process set in train by Judge Manuel’s orders.
[20] The father did not appear at the hearing. The lawyer for the child and the lawyer appointed to assist were opposed to a stay being granted. They were also of the view that the orders made by the Family Court were in J’s best interests, and any delay in implementing those orders would not be in his best interests.
Stay principles
[21] Rule 20.10 of the High Court Rules 2016 provides that a court may order a stay of proceedings,13 stay of enforcement of any judgment or order,14 and the grant of interim relief.15 An order under r 20.10 may relate to enforcement of the whole of a judgment or to a particular form of enforcement, and it may be subject to any conditions for the giving of security as the court thinks fit.16
[22] The principles applicable to a stay of a guardianship order are not in dispute. In WAH v WTW, the Court of Appeal approved, and added to, the relevant principles set out in Crosby v Crosby.17 They were summarised by Brewer J in CAM v SRM as follows:18
13 Rule 20.10(2)(a).
14 Rule 20.10(2)(b).
15 Rule 20.10(2)(c).
16 Rule 20.10(3).
17 WAH v WTW [2010] NZCA 344 at [20]–[23]; Crosby v Crosby HC Auckland AP124-SW01, 21 December 2001 at [29].
18 CAM v SRM [2012] NZHC 3519 at [11].
(a)The overriding consideration is the welfare of the children;
(b)Whether or not the appeal will be rendered nugatory if a stay is refused will be a highly relevant consideration;
(c)The arguments in favour of a stay will be stronger if a decision under appeal has the effect of totally changing the status quo;
(d)The Court will have regard to any evidence of lack of bona fides in the filing of an appeal and the application for stay as a consequence;
(e)Each case will turn on its facts. The length of time before the appeal is likely to be heard, the current circumstances of the parties and the children, and the consequences of delay pending the hearing of the appeal will be relevant.
[23] Finally, the provisions of COCA are also relevant to the application for a stay. The following are particularly relevant: the paramountcy of the child’s welfare and best interests (s 4(1)), the principle that decisions affecting the child should be made and implemented within a timeframe that is proportionate to the child’s sense of time (s 4 (2)(a)(i)), and the principles set out in s 5.
Reasons for decision
[24] As Ms Abdale submits, the August Orders are broad in their reach. The Chief Executive is empowered to make decisions about J which impact on every aspect of his life and which may alter the status quo. However, it is the real and present risk of that happening between now and 24 October 2017 which must inform the decision on the stay.
[25] The first point to note is that the primary purpose of the August Orders is to allow a proper inquiry into J’s situation to be made. This is not a case where guardianship is granted so as to remove J immediately from his mother’s care. Rather, the orders were made to allow a process by which J’s needs could be properly assessed so as to inform the Court on future custodial arrangements which meet his best interests. Whether that involves a change to the current arrangements is yet to be seen.
[26] Although the orders made allow the Chief Executive to direct certain matters affecting J (care, contact and schooling), all other guardianship matters are to be referred back to the Court for direction. There is accordingly a process in place by
which the Family Court has overall supervision of the guardianship decisions made to ensure they are in the best interests of J.
[27] As to matters of care, contact and schooling, there is no evidence that the Chief Executive intends to act between now and the appeal date in a way which would alter the current position. In particular, the Chief Executive has confirmed that there are no immediate plans to uplift J from his mother’s care or to enforce access rights for J’s father. The Chief Executive did not oppose a partial stay being granted to formalise that position on the grounds that leave be reserved to return to Court on 24 hours’ notice. I considered those orders were appropriate to alleviate any short-term anxiety to J pending the appeal and I made those orders accordingly.
[28] Similarly, although further interviews with social workers and other professionals will be necessary, the Chief Executive has agreed that its social workers will not attend on J while he is at school. That undertaking also removes a source of stress and anxiety for J and, again, I considered it appropriate to formalise that undertaking in terms of a partial stay pending the hearing of the appeal. That order was not opposed by the Chief Executive and I made it accordingly.
[29] However, beyond those immediate concerns, there appears to be very little prospect of the August Orders making any real difference to J’s day-to-day living arrangements pending the appeal being heard on 24 October 2017. It is difficult to see how an appeal of the August Orders will be rendered nugatory in those circumstances. To the extent that the appeal is concerned with the investigations and interviews of J, they have mostly been completed. In any respect, I do not consider a stay preventing J from being interviewed further is in his best interests. The entire purpose of those interviews is to inform the Court of his needs so that future custodial arrangements may be designed to meet those needs.
[30] That then just leaves the mother’s apparent difficulties in meeting both the Family Court deadlines and preparing for an appeal on 24 October 2017. Ms Abdale submits that fixing the appeal date for 24 October 2017 without a stay will lead to a breach of natural justice for J’s mother.
[31] I do not underestimate the pressures on counsel to prepare for Family Court hearings and the appeal at the same time. However, I do not consider a stay to be the appropriate response to those pressures. At present, those conflicts are simply apprehended and may well be overstated. The time to prepare for the appeal may not be as burdensome as Ms Abdale currently envisages. The appeal points are relatively discrete (failure to take into account relevant factors and taking into account irrelevant factors), and the Chief Executive has offered to prepare the case on appeal to relieve some of the burden.
[32] In any event, there are other routes by which any genuine difficulties in meeting court deadlines may be addressed (such as applying to the Family Court for an extension of time). As matters stood at the date of the stay application hearing, I did not consider there to be a real risk to natural justice rights that would compel the grant of a stay.
[33] Overall, I was not satisfied that there were any grounds to grant a stay beyond the partial orders made. The August Orders set in train a system of review aimed at the proper investigation of J’s welfare in order to ensure his needs are properly met. The grant of a stay would risk derailing that process, and would simply prolong the resolution of issues that led the Family Court Judge to make the orders in the first place. That would not be in the best interests of J.
[34] Accordingly, I declined to grant a stay which went beyond the terms of the partial orders made.
Orders
[35] The orders I made at the hearing were recorded in a minute issued the following day. For ease of reference, I set them out again below.
(a)The appeal is set down for a half day hearing commencing 10.00 am on Tuesday, 24 October 2017.
(b)A partial stay of the August orders is granted prohibiting the Chief Executive and her agents from:
(i)uplifting J from his mother’s care; and
(ii)interviewing J during school hours;
pending the hearing of the appeal on 24 October 2017.
(c)Leave is reserved to the parties to bring the matter back to this Court on 24 hours’ notice should there be a substantial change in circumstances requiring a review of the partial stay granted in (b) above.
(d)The application for a stay is otherwise dismissed.
(e)By Monday, 16 October 2017:
(i)Ms Lowe shall file submissions in support of the appeal;
(ii)The Chief Executive shall file the case on appeal.
(f)Submissions in opposition to the appeal shall be filed by Thursday, 19 October 2017.
Edwards J
Postscript
[36] Since the orders were made on 4 October 2017, the appeal date of 24 October 2017 has been vacated and a new hearing date of 9 November 2017 has been allocated. Consequential amendments to the timetabling orders have also been made.
Counsel: S L Abdale, Auckland
M K Headifen, Auckland A J Cooke, Auckland
Solicitors: Ministry of Social Development, Auckland Vicki Pomeroy Law, Auckland
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