Porter v Chief Executive, Ministry of Social Development

[2013] NZHC 2666

NOTE: PURSUANT TO S 437A OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT

1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-1225 [2013] NZHC 2666

BETWEEN  MS PORTER Appellant

ANDCHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:                   10 October 2013

Counsel:                  No appearance for Appellant

C Griffin for Respondent
R Cochrane for Child

Judgment:                11 October 2013

JUDGMENT OF THE HON JUSTICE KÓS

[1]      This is an appeal by a mother from a decision of Judge Ullrich QC in the Family Court at Wellington, declaring that her eight year old daughter is a child in need of care and protection.   That declaration was made pursuant to s 67 of the Children, Young Persons, and Their Families Act 1989.1

[2]       In this appeal I will anonymise the names of the parties.   The appellant mother I refer to as “Ms Porter”, although that is not her real name.  Likewise I will call her daughter “Helen”, although that too is not her real name.

[3]      To make a s 67 declaration a Judge must be satisfied:

1      Herein, the Act. Unless stated otherwise, references to statutory provisions are to this Act.

MS PORTER v MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 2666 [11 October 2013]

(a)       s 14 of the Act applies (the child is need of care or protection in terms of that section);

(b)      such an order should be made; and

(c)       it is not practicable or appropriate to provide care or protection by any other means.2

[4]      Here the Judge was satisfied that Helen was likely to be emotionally harmed or  ill-treated  by  Ms  Porter  (s 14(1)(a)).    Further,  that  Helen’s  development  or physical or emotional wellbeing was likely to be impaired or neglected in a way that was likely to be serious and avoidable (s 14(1)(b)).  It should be said at the outset that there is no suggestion that Ms Porter has in any way physically harmed or neglected Helen.  To that extent it is a most unusual context for the making of such an order.  The Judge also referred to the other requirements referred to at [3] and found them to be met.  The Judge also ordered that the respondent be appointed an additional guardian of Helen, under s 110.

[5]      That decision was issued on 21 May 2013.  By that stage Helen had already been removed from Ms Porter’s care.  An interim custody order had been made six months before by the Family Court, on 4 December 2012.3   The next day Helen was placed in the care of her aunt, Ms Porter’s sister.

[6]      Following the s 67 declaration a guardianship order was made in favour of the respondent by Judge Ellis, on 21 August 2013.

[7]      Ms Porter now appeals against the making of the ss 67 and 110 orders by

Judge Ullrich.

Background

[8]      In May 2012 state agencies became concerned at Helen’s lack of attendance at school, and by Ms Porter’s behaviour, described as “intense” and “manic”, in

2      Section 73(1).

3      Under s 78.

persisting  in  allegations  that  Helen  had  been  physically  and  probably  sexually abused while at school. There are thus two particular concerns.

[9]      First, Helen’s education.   She was not enrolled in any preschool education and did not start primary school until after she turned six years of age.4    She was removed from her first primary school when she was six and a half.  About a month later she was enrolled in a second primary school.   She was removed from that school  in  August  2012,  two  months  after  she  was  first  enrolled  there.    From

17 August to 5 December 2012, when she came into the Ministry’s care, she did not attend school at all.  The consequence was that Helen was found by her educators to be academically and socially behind her peers.  The deputy principal at the second school described her absences as having “hugely disadvantaged her”.

[10]     Secondly, Helen’s emotional wellbeing.  It is common ground that the reason for Helen’s late enrolment at age six had been Ms Porter’s safety fears arising from a death threat that she said she had received.  It had been written on the fence between her property and her neighbour’s.  Ms Porter did not know who had written it; she was not in dispute with anyone at that time.  She said in her affidavit evidence, “I felt uncomfortable putting [Helen] into school as I felt she might be a target”.  Despite that, however, Ms Porter and Helen did not actually leave the town they lived in then for another year.

[11]     After moving to another town, Helen was enrolled in her first primary school in September 2011, a few weeks after her sixth birthday.  In May 2012 the school became concerned about Ms Porter’s behaviour around the school, and towards Helen. As they saw it, Ms Porter had become fixated about bullying.  Yet Helen had not made any complaint, investigations by staff failed to disclose anything, and Ms Porter could not give any details.   Ms Porter however took to videoing Helen while walking to school, recording conversations with staff, and photographing other

school children.

4      There is no lawful requirement to enrol a child at a  primary school before she turns six: Education Act 1989, s 21(1).

[12]     On  12  May  2012  Ms  Porter  took  Helen  to  her  general  practitioner  and expressed concern about possible sexual abuse because Helen had sand in her underpants and redness about her private parts.  As a result Helen was checked by a paediatrician two days later. The paediatrician described the “very minor redness” as “completely normal”.  There was no physical evidence of sexual abuse.  The bruises on Helen’s legs were also perfectly normal for a young child interacting with other children.

[13]     But that same day Ms Porter removed Helen from the first primary school. Three days later, on 17 May 2012, she went to Wellington Central police station complaining about the bullying of her daughter, and possible sexual abuse.   She wanted the police to undertake a forensic interview of Helen.  The police considered that the lack of an identified alleged perpetrator, and the lack of disclosure by Helen, meant that such a course was not justifiable.  It is not clear whether they knew about the paediatrician’s assessment that there was no evidence of sexual abuse.   But in any case the police contacted the Ministry of Social Development’s Child Youth and

Family  service5   the  same  day,  concerned  about  what  they  saw  as  Ms  Porter’s

elevated level of paranoia. And the next day, 18 May 2012, CYFS also received a report from the school about the matters referred to in [11].

[14]     On 23 May 2012 CYFS interviewed Ms Porter and Helen.   At that point Helen was not attending school.   Ms Porter declined a request that CYFS also be able to interview Helen alone.  Ms Porter did not deny the actions referred to at [11] to [13] above.  But she said they were appropriate actions for a concerned parent to take.   She referred to research she had undertaken, and what she perceived to be indicators of potential sexual abuse.

[15]     In late June 2012 Helen was enrolled in her second primary school.   That school also reported to CYFS that Ms Porter was videoing and photographing children in the school, “gathering evidence” (as Ms Porter had put it) that Helen had

arrived at school safely.

5      Herein, CYFS.

[16]     On 9 July 2012, two weeks after Helen started attending her new school, Ms Porter again attended her general practitioner requesting a medical examination regarding sexual abuse.  Helen was again physically inspected by that doctor.  The doctor could see no evidence of sexual abuse.   The doctor indicated that the only way forward, if there was a continuing concern, was to involve CYFS.  That would involve  a  private  evidential  interview  process  in  the  absence  of  the  mother. Ms Porter was not keen about that.

[17]     A week later, on 17 August, the mother withdrew Helen from the second school.   She made enquiries about home schooling her daughter, but had not completed the application process by the time Helen was taken into CYFS care in December  2012.    An  exemption  for  home  schooling  is  a  reasonably  complex process.  A homeschooling applicant must first demonstrate that their child will be taught at least as regularly and as well as in a registered school.6

[18]     In addition to taking Helen to the doctor, the mother continued to discuss the issue with Helen and with others in Helen’s presence.  On one occasion she pulled up  an  image  of  a  penis  on  her  telephone  and  showed  it  to  Helen.    Helen acknowledged  that  she  had  seen  something  similar.    Later,  though,  Ms  Porter objected to the school at which Helen is currently placed teaching the children about body parts “without her consent”.

[19]     On 27 August 2012 CYFS concluded its assessment of Helen’s care.  In the course of that assessment the CYFS social worker had also consulted Ms Porter’s sister and mother.  The assessment found probable neglect and emotional abuse.  A family group conference was convened for 8 November 2012.7   Ms Porter declined to attend.  She said that she had to move house that day.  But she also said, in her affidavit evidence, that she was not prepared to go to the family group conference because she did not know what CYFS’ concerns were.   She faxed CYFS on 16

October 2012 advising that stance.  In fact she had already told the social worker of

that position three weeks earlier, on 3 October 2012.  She said she wanted to know

6      Education Act 1989, s 21.

7      Section 21.

what the “allegations against her” were.  But the social worker had already provided

a copy of the assessment document, which set out CYFS’ concerns.

[20]     In her absence the family group conference went ahead.  The group reached the conclusion that Helen was a girl in need of care and protection, and that the Ministry should apply to the Family Court for orders.  It was agreed Helen would be placed with Ms Porter’s sister and her husband (who have two young children of their own).  Helen’s maternal grandmother also lives on the same property.

Decision appealed from

[21]     After setting out the facts summarised above, in considerably greater detail, Judge Ullrich concluded that the mother’s conduct was delusional and irrational, and sufficiently harmful to Helen to engage s 14. The Judge said:

[49]     I am satisfied from reading the affidavit evidence and hearing the cross-examination of the mother, that her perceptions are often a distortion of the reality as experienced by others.   It is also apparent that once the mother has determined the nature of a situation, she cannot be moved by other points of view and the presentation of facts.  This behaviour in itself is a risk for the child if she remains in her mother’s day to day care as the child will frequently be presented with a view from her mother which is out of step  with  reality  as  the  child  perceived  it  for  herself.    This  will  be emotionally harmful for the child.

...

[51]      I am satisfied on the basis of the findings in this judgment that there are grounds for a declaration.  I am satisfied in terms of s 14(1)(a) that while the child was living with her mother she was being emotionally harmed and that if she were returned to her mother’s care she would be likely to be harmed.  I also find that the unsubstantiated allegations8  and investigations amount to ill-treatment of the child in terms of s 14(1)(a).

[52]    I am also satisfied that the findings establish that the child’s development and mental and emotional wellbeing is likely to be impaired or neglected while in the care of her mother and that impairment or neglect is likely to be serious and avoidable in terms of s 14(1)(b).

[53]      The overriding principle is the welfare and best interests of the child as set out in s 6 of the Act.  On that basis the intervention by the Ministry is necessary to ensure that the child’s developmental needs are met and that she is safe from emotional harm.  There is no means short of a declaration for protecting the child’s welfare.

8      That is, allegations by Ms Porter.

[54]      I make a declaration that the child is in need of care and protection in terms of s 14(1)(a) and s 14(1)(b) Children Young Persons and Their Families Act.

Appeal

[22]     Ms Porter filed her notice of appeal on 11 July 2013.  Later she filed detailed handwritten submissions.  The handwriting is perfectly legible, but the content is not entirely coherent.   In essence Ms Porter’s complaints about the judgment are as follows.

[23]     First, the Judge was wrong to conclude that Helen had been, or would be exposed to emotional harm, and that her development would likely be neglected by her remaining in Ms Porter’s care.  Ms Porter submits the evidence advanced was “unsubstantiated”, and insufficient to sustain the s 14(1)(a) and (b) prerequisite that Helen was a child in need of care and protection.

[24]    Secondly, and specifically in relation to the finding under s 14(1)(a) of emotional harm and ill treatment, Ms Porter says that the two schools did not provide a safe physical and emotional environment for Helen.  She says that, having noticed signs that she considered consistent with sexual abuse, she took a “proactive” approach as a concerned and loving parent.  She undertook her own research into the possibility of abuse, she sought physical examinations, and she discussed the issue with Helen and the schools.   She says she was doing what she thought was in Helen’s best interests.   Whether Helen might have been abused was a matter for parental judgment.

[25]     Thirdly, in relation to the s 14(1)(b) ground, Ms Porter says that removing Helen from school was done in what she saw to be her best interests, protecting her from later bullying and possible sexual abuse at the two schools.  She also says that she did her best to provide Helen with alternative education, helping with maths, reading and English.

[26]     Essentially Ms Porter says that the fundamental role of a parent is to keep her child safe.  She believed that her actions were those of a responsible parent.  Safety must come before the opportunity to enjoy a full education.

Hearing

[27]     Ms Porter did not attend the appeal.  She said that she would prefer the matter to be dealt with on her written submissions, albeit that counsel for the respondent and counsel for the child would appear.  The opportunity to participate in the hearing by audio visual link was offered.   Ms Porter declined.   She said she was not sure where she would be on the date of the hearing.

[28]     Counsel for the respondent, Ms Griffin, and counsel for Helen, Mr Cochrane, attended.   They provided me with very thorough submissions in the course of a hearing lasting two hours.   I am grateful to them for the diligence, fairness and compassion they exemplified.  Having said that, I should state that they were both firm that the decision below was correct, and that the appeal should be dismissed.

Approach on appeal

[29]     This is an appeal by way of rehearing under s 341.  The appellate Court is to form its own view on any non-discretionary determination by the Court below, such as the factual findings under s 14.9     It does not defer to the Court below, save respecting the advantages that Court had in seeing and hearing witnesses.

[30]     But the appeal starts from the position that the appellant bears the onus of satisfying the appellate Court that it should differ from the decision below.   That requires the appellant to first identify the respects in which she says the judgment below is in error.  Secondly, she must persuade this Court that it should differ from

the Court below. As Randerson J put it in WPH v ITP:10

... some reasonably plain ground should be made out before [the] Court intervenes on appeal ...

[31]     On discretionary aspects, such as whether to make orders under ss 67 and

110, the position is different.  The appellant must show that the Judge acted on an incorrect principle, failed to consider a relevant matter, considered an irrelevancy or

9      Also that it is not practicable or appropriate to provide care or protection by any other means than a s 67 order: s 73(1).

10     WPH v ITP [2009] NZFLR 745 (HC) at [17].

was just plain wrong.  Unless that threshold is met, the appellate Court will respect the exercise of discretion of the Judge below.

Judgment

[32]     Having read Ms Porter’s written submissions, heard from Ms Griffin and Mr Cochrane and having considered the passages of evidence those three referred to, I stated at the hearing that I was satisfied that the appeal must be dismissed.

[33]     The appeal was therefore dismissed, with reasons to follow.

Reasons

[34]     There are essentially four reasons for my dismissal of this appeal.

[35]     First, the focus of Ms Porter’s appeal concerns the adequacy of evidence to sustain the criteria in s 14(1)(a) and (b).  It is important, therefore, to observe at the outset that there was relatively little factual conflict in this case over what Ms Porter had actually done in the course of care of Helen.  The key aspects are set out at the start of this judgment and are not controversial.  There was also little argument about Ms Porter’s motives.  No one doubts that they are sincere, and calculated to protect Helen from harm, as Ms Porter perceives it.

[36]     What was in issue was really two things:

(a)      the reality of harm to which Helen has been  exposed, apart from unintended harm from Ms Porter; and

(b)the extent to which Ms Porter’s admitted actions were, albeit unintentionally, harming Helen’s emotional wellbeing and educational and social development.

[37]     There is in this case no suggestion of physical abuse by Ms Porter.  To the contrary, she is a loving and caring mother.  As I have said, it is a very unusual case for a care and protection declaration.  Helen has been placed with Ms Porter’s sister

and her husband-in-law.  Ms Porter has stayed with this couple and their children, and therefore with Helen, for extended periods since.  No one has suggested that this is in the least bit unwise or unsafe.

[38]     Secondly, I am satisfied that the evidence demonstrates clearly that Ms Porter has developed an irrational apprehension of risk faced by her daughter.  To take but one example, although it is telling example, if Ms Porter is right that Helen may have been sexually abused, this small and unfortunate child has had the remarkable misfortune of suffering this violation at not one, but two, separate primary schools, and on the second occasion within just days of arriving there.  It is not suggested that anyone other than a pupil or teacher might have been responsible.

[39]     The medical evidence is of utter normality, rather than invasion. The bruising to Helen’s legs is normal for a healthy active child.  No culprits are identifiable for abuse of either kind.  The assessment of doctors, nurses, police officers and teachers is that there has been no such abuse.  That assessment has been dismissed summarily as wrong by Ms Porter.

[40]     The evidence suggests that Ms Porter is deeply resistant to alternative points of view that do not align with her own fixed positions.   She was asked by the respondent’s  counsel  before  the  Family Court  whether,  for  Helen’s  benefit,  she would be prepared to participate in a psychological assessment.  She said she would not agree – “would never consider it”.  Well, that is her right, but it offers a strong inference that her views on matters in issue – including her own state of health – are rigid, regardless of whether they are right.

[41] I agree with what Judge Ullrich said about this at [49] of her judgment – quoted at [21] above. Ms Porter simply does not appear open to innocent interpretation of innocent actions, whether it be sand in underpants (hardly an unusual state of affairs with small children) or the use of mildly naughty words (ditto).

[42]     Thirdly, I turn now to the harm that Ms Porter’s actions are having on Helen’s

emotional wellbeing and her educational and social development.  I am in agreement

with Judge Ullrich that the evidence engages s 14(1)(a) and (b).  Expressly, I agree with what the Judge said at [51] and [52] of her judgment – also quoted at [21] above.

[43]     Ms Porter’s persistence in obtaining medical examinations of her daughter, despite  a  lack  of  disclosure,  probable  culprit  and  medical  evidence  on  either occasion, while also declining to go through the appropriate CYFS channels for genuine cases of abuse, shows a worrying lack of insight.  And it shows a lack of perception as to the harm those actions are causing Helen.  Similarly in presenting herself, along with Helen, at the police station just three days after an expert paediatrician had dismissed the likelihood of any sexual abuse of the child – but asserting again that it might have happened.  So, too, her persistence in pursuing the topic, without any reliable evidential foundation, in discussion with Helen herself. Or in showing Helen the penis image on her mobile telephone.

[44]     I accept the evidence in the Family Court of the social worker who said that this obsessional focus on that subject with Helen would be frightening and confusing for the child.

[45]     Beyond that there must be a real concern that Ms Porter’s obsession, and her very fixed views on these and other topics, will undermine Helen’s ability to form normal human bonds, enjoy a stable childhood, and make solid, satisfactory friendships.    Her sudden removal from schools, attendance at which is developmentally desirable for a little girl whose education and development had already been impaired, is deeply unsatisfactory.  I accept that it would likely result in serious developmental impairment.

[46]     Finally, I bear in mind that in this case, by reason of s 6, the interests of Helen are paramount.  Helen is happy in her new environment, but naturally wishes again to live with her mother.  That is of course the desirable end objective.  But for the moment, counsel for the child is entirely clear in his submission that the interests of Helen were best met by the order made by the Family Court Judge.

[47]     With that assessment I am in entire agreement.

Conclusion

[48]     I am not persuaded, therefore, that Judge Ullrich erred in her assessment of the evidence as meeting the standard set by s 14(1)(a) and (b), as prerequisite to the making of a care and protection order.

Looking ahead

[49]     That is enough to determine the appeal.  But I need to say something more. [50]     Looking ahead, everyone recognises that with certain changes in behaviour,

Ms Porter would again be entirely fit to resume primary care for Helen.  That must be the end objective.  But the clock is ticking.  Helen will become settled in a new stable home.

[51]     Pursuing this appeal (which I have found to lack merit) was a step in the wrong direction.

[52]     What is really needed is for Ms Porter to:

(a)       recognise the possibility that she just might be wrong about the risks

her daughter has faced, and the “harm” she has experienced;

(b)recognise the possibility that she might be wrong about the effect her own actions have had on her daughter;

(c)      perhaps take the option of submitting to a psychological examination under s 178.  That is a matter for Ms Porter, of course, but to do so would be constructive in confirming that (a) and (b) have occurred, and it will assist in either displacing a perception by others, or in confirming that perception, making possible a course of treatment or counselling (or both);

(d)engage with the social worker assigned to the matter in advance of the s 135 plan review that is to occur in December.  A coherent access

plan for Helen and Ms Porter should be capable of being resolved if there is fruitful engagement between Ms Porter and the Ministry; and

(e)       then make submissions to the Family Court on that plan.

[53]     I hope that Ms Porter will now find it in herself to adopt these suggestions. They seem to be the only way in which the common objective of a reunited family unit can be achieved.

Result

[54]     The appeal is dismissed.

Stephen Kós J

Solicitors:

Crown Law, Wellington for Respondent