P v Attorney-General HC Auckland Cp383-94

[2001] NZHC 1062

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CP383-94

BETWEEN P
First Plaintiff

P
Second Plaintiff

AND THE ATTORNEY-GENERAL
Defendant

Date of Hearing: 18-21 June and 28 August 2001

Counsel: Mr McLennan for the First and Second Plaintiffs
Mr Mathieson / Ms Griffiths for the Defendant

Date of Judgment: 5 November 2001

RESERVED JUDGMENT OF GLAZEBROOK J

Solicitors:
Crown Law (Mr C Mathieson), DX SP20208, Wellington
Holmden Horrocks (Mr J McLennan) DX CP24047, Auckland

Introduction

[1] First plaintiff, known as PJ, has led a troubled existence, largely because of gender identity issues. Mr P is his father, a loving father who, at great personal cost, has done what he can to help the son he loves.

[2] Mr P and his wife, PJ’s mother, separated in 1982. The mother was granted custody of PJ and their two daughters. This case arises out of allegations of sexual abuse made by PJ against Mr P in August 1988 and the consequent involvement of the Department of Social Welfare. Three aspects of this involvement are at issue in the current proceedings.

[3] The first is the alleged failure of the Department to consider the complaints Mr P made in November 1988 and May and June 1989 expressing concern as to PJ’s safety in his mother’s house. PJ asserts that the Department acted negligently.

[4] The second involves a letter given to Mr P’s new wife on 8 November 1988, stating that allegations of sexual abuse had been made against Mr P. The letter was addressed “To Whom It May Concern” and was intended to be shown to a real estate agent in connection with a house purchase. Mr P alleges that the Department breached a duty of care owed to him by releasing this letter and also that its release constituted misfeasance in public office.

[5] The third also involves a letter. This time the letter is one written on 20 January 1989 by a social worker to the Family Court, copied to the Papakura police. This letter expressed the view that Mr P’s access to PJ’s two sisters should cease until the Court had finally determined access issues. Again Mr P alleges that the sending of this letter constitutes misfeasance in public office. At issue here too is alleged advice given to the mother by the Department in respect of access issues.

Background Facts

[6] As indicated above, Mr P separated from his wife in 1982. After separation Mr P had access rights to PJ and his two daughters but they remained in the mother’s custody. She subsequently remarried (becoming Mrs M). Mr P also remarried.

[7] PJ exhibited difficulties in his development from an early age and, in particular, difficulties with gender identity. Before August 1988 he had been seen at various times by Michael Marris, a child psychotherapist, and R J Methven, a child psychiatrist. There are letters on the file from Mr Marris in respect of custody and access matters in July 1985 and a report of June 1998 by R J Methven. There is also a report of 24 August 1988 by M Edwards, registered psychologist of the Department of Education. PJ had been referred in February 1987 because of difficult behaviour, including stealing and shoplifting. It was also reported that parents were refusing to have him play with their children “as he may be homosexual”.

[8] August 1988, however, bought a new shock. PJ made an accusation of sexual abuse against Mr P and his new wife’s son. On 4 August 1988 Mrs McBain, the principal of PJ’s school, was alerted to sexual behaviour that had taken place between PJ and another boy. It was subsequently determined that the other boy involved in this activity had been sexually abused by both his parents. On 8 August 1988 Mrs McBain questioned PJ who confirmed that the sexual activity had taken place. Just after that admission his mother, Mrs M, arrived to take PJ to the doctor and Mrs McBain told her what PJ had said.

[9] Mrs M asked PJ about the matter on the way to see the doctor and he allegedly told her that his father and his new wife’s son, R H had touched him sexually. She reported this to the police. The police interviewed PJ and he repeated the disclosures in respect of his father. There was a second interview the following day with the police at which Mrs McBain and Mrs M were present. It appears the allegations were again confirmed and, in response to a prompt from Mrs M, the allegations against R H were also repeated.

[10] On 10 August 1988 the Police notified the Department of Social Welfare Child Protection Team of the alleged sexual abuse. Ms Casey, the manager of the newly formed evidential interviewing unit at Otahuhu, conducted video interviews of PJ on 24 August 1988 and 1 September 1988. The evidential interviewing unit was very new, having been set up in about July 1988 as a joint project between the Department of Social Welfare and the New Zealand Police. The interview with PJ was one of the first interviews conducted by the new unit.

[11] Other professionals viewed the videotapes of the interviews, including Elizabeth Bailey, a psychologist who later gave evidence in the Family Court in respect of an access hearing relating to PJ). All these professionals were acknowledged experts in the area of child sex abuse (Notes of Evidence p 130, lines 2-3).

[12] As a result of the allegations of sexual abuse Mrs M, on 11 August 1988, obtained an ex parte interim order suspending Mr P’s access to PJ and his sisters.

[13] The Department remained involved and held a case conference on 3 October 1988. This case conference included representatives from the school, the legal representative of the custodial parent, Mrs M, counsel for the child, Mr Ryan, and representatives from the Department of Social Welfare. Mr P was not present or represented at the case conference. As he was not the custodial parent it would not have been usual practice to include him. Ms Casey, who conducted the evidential video interviews, was present from the Department of Social Welfare. Also present was a Mr Harper, a social worker who took the notes of the conference and undertook certain follow-up work.

[14] As part of the follow-up, on 11 October 1988 Mr Harper telephoned a Dr Grant at Auckland Hospital to arrange an examination of PJ. On 14 October 1988 PJ was examined by Dr Newman and Dr Grant at Auckland Hospital. He was found to be suffering from penile ulcers that were stated to be consistent with but not diagnostic of sexual abuse. The report was provided formally to Mr Harper by letter of 4 November 1988 but there had been an earlier telephone conversation between Dr Grant and Mr Harper on 14 October 1988, where Dr Grant said that the ulcers were of doubtful significance.

[15] On 20 October 1988 there was another Family Court hearing. Mr P was granted supervised access to PJ and his two sisters for four hours each Sunday. Notwithstanding the order, access did not occur on a regular basis, Mr P choosing not to exercise his access rights (on the basis of legal advice). Before that hearing the judge had ordered a report under s 29 of the Guardianship Act 1968 which was prepared by Mr Harper over the following month.

[16] On 14 December 1988 the access order was amended allowing Mr P to have unsupervised access to his daughters. He took advantage of this but still did not exercise his supervised access rights in respect of PJ.

[17] In January 1989 Mr Harper recommended PJ for supportive services. This is the lowest form of intervention for the Department of Social Welfare and would have meant liaising with the school and people involved with the family so as to receive early warnings if the situation deteriorated (Notes of Evidence, p 119, lines 11-16). There was also a referral arranged to the Leslie Centre, a centre that provides specialist counselling.

[18] In April 1990 there was a full hearing of the custody and access dispute. Judge Boshier delivered his decision on 12 April 1990. He concluded that Mr P and his stepson were not the perpetrators of the sexual abuse on PJ. Mr P’s access rights to PJ were restored and I understand that PJ and his two sisters in fact went to live with their father soon afterwards.

Was there a failure to consider?

[19] The parties are agreed that the present state of the law is that a duty of care may be superimposed on the duty in s 5 of the Children and Young Persons Act 1974, which was the relevant legislation at the time. Section 5 requires the Department to take steps (including instituting a prompt inquiry) to protect a child at risk. Liability in negligence may arise only in limited circumstances. It can arise only where the Department either unreasonably fails to carry out the duty to consider the matter or reaches a conclusion so unreasonable as to show failure to do its duty - see Attorney-General v Prince and Gardner [1998] 1 NZLR 262, 284.

[20] It is submitted, on behalf of PJ, that a number of complaints made by his father were not considered by the Department or, if they were, the conclusion reached not to institute inquiries was so unreasonable as to be actionable.

[21] The first complaint relied on was made by Mr P in an interview with Mr Harper on 4 November 1988. This interview took place just after Mr P had received a copy of the medical report stating that penile ulcers found on PJ were consistent with but not diagnostic of sexual abuse. Up until that point Mr P had assumed his son was lying about having been abused. On seeing the medical report he was devastated. To him the medical report was clear - his son was being sexually abused and the Department was doing nothing to protect him.

[22] At the interview Mr P asked that the Department remove PJ from his mother’s house. He passed on information that Mrs M’s stepson, B M, had shown the children “blue movies” when he was babysitting. Although B M did not live in the house, Mr P’s understanding was that he lived nearby and was a frequent visitor to the house. Mr Harper told him that he had made inquiries from the counsel for the child, Mr Ryan. Mr Ryan was overseas at the time but his secretary had passed on the information that B M was a very infrequent visitor and had not babysat for months. Mr Harper was thus satisfied that B M did not have unsupervised access to PJ at that time.

[23] Mr Harper told Mr P that he did not think he had sufficient grounds to attempt to obtain a warrant to uplift PJ but did say that Mr P could take the matter up with one of his superiors or put the matter before the Court. Mr P said he did not wish to take up this offer but did continue to express concern.

[24] The next complaint relied on is a telegram sent to Mr Harper by Mr P on 30 May 1989 in the following terms - “Are you sure the child is safe?”. He followed this up with a telephone call the next day, complaining that Mr Harper had done nothing to ensure that PJ was safe from sexual abuse in his mother’s home.

[25] Mr Harper sent a reply dated 31 May saying that he was and is satisfied that PJ was safe but suggesting that, if Mr P had any factual information leading to a different conclusion, then perhaps he should acquaint the police with this.

[26] Mr McLennan, on behalf of PJ, submits that the complaints made by Mr P were not part of the investigation that the Department had already conducted into PJ as that was related to the alleged abuse by his father. This was new information being brought to the attention of the Department and it took no action on that information. Either it failed to consider the information or its actions in then deciding not to conduct an investigation were so unreasonable as to constitute a failure to do its duty.

[27] The Department officials were, it was submitted, so convinced that Mr P was the abuser that they unreasonably failed to consider any other possibility. In particular they ignored the medical evidence of the penile ulcers. At the Family Court hearing in April 1990 the medical evidence was that the ulcers could not be associated with sexual abuse by Mr P as he had not seen PJ during the relevant period. This evidence appears to have been elicited for the first time during the hearing and there is no suggestion that Mr Harper was aware of it in 1988 or 1989.

[28] The difficulty with Mr McLennan’s submission is that Mr P gave no information to Mr Harper, apart from the information about B M. That information was not only considered but also investigated, at least to the extent of Mr Harper assuring himself that B M was no longer left alone with PJ and the other children. Mr Harper was also familiar with the family circumstances of Mrs M as he had visited her house and conducted an interview on 11 October. No other information was provided and in particular no new information was provided in May and June 1989. There was only concern expressed. Perhaps in some circumstances this could be enough, but here the matter had already been the subject of an investigation and was the subject of ongoing action, at least in November. There can be no cause of action in this regard.

[29] In addition there is no evidence that Mr Harper had a pre-determined view as to whether Mr P had abused PJ. Indeed, the notes of interview of 4 November would suggest rather that he was at least trying to keep an open mind. Even if this is not the case, the situation must be looked at from the point of view of the Department’s knowledge at the time. PJ had named Mr P as having abused him to his mother, to the police and in two video interviews. Apart from R H, he was the only person named.

[30] A number of departmental experts had viewed the video interviews and, while they were not considered of sufficient quality for evidential purposes, the view of the experts was that there was sufficient to have grave concerns about Mr P. One of the experts, Mrs Bailey, gave evidence at the Family Court hearing in April 1990. The judge said that he considered her integrity enhanced rather than diminished after her lengthy cross-examination. He differed from her conclusions but was at pains to say that he had an advantage over her in that he had seen and heard all the witnesses and been able to consider the volume of the evidence put before him in what was a long hearing.

[31] I note too that Mr Harper’s inquiries at the school at the end of November elicited the information that PJ was happy and relaxed in school and that the improvement could be dated to the cancellation of access to his father - see document 49 of Agreed Bundle.

[32] It is true that the dating of the penile ulcers, if indeed they had anything to do with sexual abuse at all, may have led to a concern that there might be another abuser. However, Mr Harper is not medically qualified and his consideration of the medical report that had so disturbed Mr P must be seen against the background of Mr Harper’s telephone discussion with the doctor who told him that the ulcers were of doubtful significance.

[33] Mr P’s frustration (and even his sometimes colourful means of expressing it) was understandable when facing Departmental officials who did not take the action he wished them to when he thought his child in danger. What Mr P forgets is that he had a real advantage over the Department in his assessment of the situation. He knew he was not the abuser. His reading of the medical report meant that therefore someone else must be.

[34] The Department, armed with the information it had, could not have come near to a conclusion that Mr P was not the abuser. Indeed, even if officials had any doubts as to Mr P’s responsibility for the abuse, the more likely alternative conclusion may well have been that PJ was fantasising. This was indeed the P’s first conclusion. It was considered quite a strong possibility by Judge Boshier in his 12 April 1990 decision. The transcript of the video interviews suggests a child who has difficulty distinguishing between fantasy and reality. In addition PJ had apparently been associating with a child (in the school incident) who had been the victim of sexual abuse from his parents, and this other child may have given PJ material to build his story on.

[35] Taking into account all of the above I hold that the Department did not act negligently. It did consider all information given to it and its decisions and actions, in the light of its knowledge and investigations at the time, were reasonable.

The letter of 8 November 1988

[36] The 8 November letter was written by Ms Casey, the social worker who had carried out the video interviews with PJ. It was written to give to Mr P’s then wife. Mrs P, as she then was, had visited Ms Casey and expressed concerns about remaining with Mr P against the background of the allegations being made. She was particularly concerned about a purchase of a house that she and Mr P were making jointly. The letter was given to her so that she could try and negotiate her way out of the contract of purchase. It was given by her to the real estate agent handling the purchase, naturally to no avail. The letter said that her husband was the subject of allegations of sexual abuse and could have been taken as implying that the Department considered the allegations true.

[37] Ms Casey has told the Court that she now considers the letter to have been an error of judgment but says that her motives were to help the then Mrs P. In particular she was concerned for Mrs P’s children living with a potential child abuser and thus was concerned to facilitate any decision Mrs P may have made to avoid that situation. She appears to consider the letter to have been an error of judgment only because she now cannot conceive how it could ever have achieved the purpose for which it was written - ie to enable the then Mrs P to be released from the sale and purchase agreement.

[38] Two alternative causes of action are brought by Mr P in respect of this letter - negligence and misfeasance in public office. The first point is that it is likely the negligence cause of action should rather have been brought in defamation - see Bell Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 and the recent confirmation of that case by the Court of Appeal in Midlands Metals Overseas Pte Ltd v Christchurch Press Co Ltd (CA67/01, 24 October 2001). The second point (relevant to both causes of action) is that Ms Casey’s actions, although perhaps an error of judgment, were designed to protect the children of the then Mrs P and therefore she was attempting to fulfil her statutory functions of protecting children at risk. She cannot be criticised for this motive, even if she can be criticised for writing the letter itself. The fact that there was no allegation of abuse by the then Mrs P’s children does not matter. If Mr P had been an abuser the literature suggests that any child (including Mrs P’s children) could have been at risk. This suffices.

[39] Mr P submits that there must be a cause of action if information of a highly sensitive and prejudicial nature can be released to the public at large for reasons unconnected with an investigation into the welfare of a child. If this were the situation then perhaps he may be right. However this is not the case here. For a start, while the letter was addressed widely, it appears that it was only intended that it be shown to those closely concerned with the sale and purchase. Secondly the motive was the welfare of the then Mrs P’s children. It is thus associated with concern for the welfare of a child. A good motive may not always suffice but it does in this instance.

Letter of 20 January 1989

[40] The next complaint is that a social worker in the Department advised Mrs M to deny P access to his daughters. Mr P had to return to court for a warrant to enforce access. As the denial of access occurred over the Christmas period this took some time and in the meantime he was deprived of access to his daughters.

[41] I have not heard from either Mrs M or the social worker involved. I note that there may be uncertainty as to whether the Department’s social worker in question was aware of the December amended access order. Mr Harper was not aware of it. Given this it is not possible to come to a definitive view on what occurred. There is, however, not necessarily any causal link between the denial of access and any advice that may have been given by the Department. In addition, while in all but exceptional circumstances advising someone to breach a Court order would not be a proper exercise of Department functions, the motive of the social worker appears to have been to protect PJ. This would make it difficult to make out the cause of action in any event.

[42] The further allegation is that Mr Harper wrote a letter ostensibly to the Family Court but copied to the Papakura police expressing the view that Mr P should be denied access to his daughters until the whole question of access to all three children had been argued and decided. Mr Parkinson says that this was with the aim of ensuring that the police afforded him no assistance with his access difficulties.

[43] Mr P submits that there was no reason to copy the letter to the police as the police investigation had finished some months previously. He further submits that it was not normal practice to copy letters relating to access to the police and that the police witness called by the Department confirmed this. He also says that, if the real purpose was to inform the Family Court, then he would have expected that there would have been more detail and also that it would not have been sent while the Court was closed.

[44] Even if he is correct in all these contentions, the problem for Mr P is that he did not ask for any action to be taken by the police after 20 January. He had asked for assistance before then and some informal assistance had been given at first but then the advice from the police had been to consult his lawyer. The police are only obliged to act in access matters once a warrant is obtained and one was not obtained until after 20 January. Any assistance the police give, in the absence of a warrant, is informal only. This means that, even if Mr P had asked for assistance after the 20 January, this may well have been declined, letter or no. In addition Mr Harper’s concerns with the access arrangement were squarely based on PJ’s welfare, thus coming within his statutory function. His concern was that Mr P’s access to his daughters was causing harm to PJ and disruption in the family.

[45] For the above reasons Mr P’s fourth cause of action cannot succeed either.

Result and Costs

[46] The finding is that there was no breach of any duty of care to the first plaintiff. The Department fully considered any information given to it by Mr P and its decisions and actions after that consideration were reasonable in the light of its knowledge and investigations at the time.

[47] The second plaintiff fails in the second, third and fourth causes of action for the reasons set out above. I note in particular that in respect of both letters complained of, the motive of the social workers involved was to protect the welfare of children, and thus fell squarely within their statutory function.

[48] Both plaintiffs being legally aided no order for costs is made.