S v W

[2019] NZHC 525

NOTE: PURSUANT TO S 22A OF THE ADOPTION ACT 1955, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF

THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE

SEE judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2130

[2019] NZHC 525

IN THE MATTER

of the Adoption Act 1955

BETWEEN

S

Appellant

AND

W and W

Respondents

Hearing:

7 March 2019

Appearances:

J Rayner for the Appellant

N C Dufty for the Respondents

Judgment:

21 March 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 21 March 2019 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr J Rayner, Barrister, Porirua

Ms R Faiga (appellant’s instructing solicitor), The Law Store, Wellington Ms N C Dufty, Natalie Dufty Family Law, Takapuna

S v W and W [2019] NZHC 525 [21 March 2019]

[1]    Ms S appeals against a judgment of Judge A E Somerville in the Family Court at Manukau dated 4 September 2018.1 The Judge made an adoption order under the Adoption Act 1955 (the Act) that Mrs W and Mr W (the respondents) adopt Ms S’s child, SW, having dispensed with the need for Ms S’s consent.

Background

[2]    SW was born on 18 April 2011. Her birth father is unknown. She was placed in the care of the Ministry of Social Development when she was six days old. Following a family group conference on 7 July 2011, which Ms S did not attend, SW was declared to be a child in need of care and protection and placed in the care of the respondents on 16 September 2011. On 21 November 2012 the Family Court made a parenting order for the respondents to provide the role of day-to-day care for SW and a guardianship order appointing them as SW’s additional guardians. Ms S had been served with the applications but took no steps in those proceedings.

[3]    Ms S suffers from drug and alcohol addiction. She has made no contact with the respondents or SW since SW was placed in the respondents’ care in 2011. She has received several custodial sentences and is currently in prison.

[4]    By without notice application dated 28 April 2017, the respondents applied to the Family Court to adopt SW and to dispense with service on Ms S. The respondents’ affidavit in support sought an interim adoption order pending a social worker’s report. In relation to dispensing with service, the affidavit in support explained that Ms S could not be located. The respondents filed a further without notice application for an order dispensing with service on Ms S dated 28 June 2017.

[5]    In response to the applications, Oranga Tamariki/Ministry for Children prepared a social worker’s report from for the Family Court dated 24 October 2017.2 That report concluded that the applicants were fit and proper persons as required by  s 11(a) of the Act and that adoption was in SW’s best interest, meeting the requirements of 11(b) of the Act.

1      Re W and W [2018] NZFC 6891.

2      Pursuant to s 10 of the Act.

[6]    Ms Hana Ellis was appointed as lawyer to assist the Court and provided a memorandum to the Family Court dated 21 December 2017. Ms Ellis was familiar with SW as she had acted for her in the declaration proceedings brought when SW was an infant. Ms Ellis knew Ms S’s whereabouts in prison as she was participating in separate proceedings concerning the care of Ms S’s two other children born since SW. Ms Ellis proposed that Ms S be served with the applications.

[7]    Ms S was served on 26 May 2018 and was notified of the hearing date. However, she did not participate in the proceeding.

[8]    Ms Ellis provided a further memorandum to the Family Court dated 31 August 2018 prior to the  hearing of the  applications.   It  indicated that  Ms S instructed   Ms Eagles, but when she travelled to meet Ms S, Ms S declined to do so. Mr Rayner suggested Ms S may have misunderstood the visit. I draw no inference as to why the lawyer was unable to meet her.

[9]    The applications were heard by Judge Somerville on 4 September 2018, and she delivered an oral judgment dispensing with Ms S’s consent under s 8(1)(a) of the Act and making a final (rather than interim) adoption order.3 The Judge followed a two-step process:

(a)first, whether consent of the mother should be dispensed with, and

(b)second, whether the adoption order should be made.

The arguments on appeal

[10]   Mr Rayner, counsel for the appellant, emphasised that the Judge had exercised an extreme power completely erasing SW’s relationship with her biological mother following a one hour uncontested hearing. He raised four grounds of appeal:

(a)The Judge’s articulation of the test for waiving consent under s 8 of the Act was wrong in law. In particular, Mr Rayner submitted that the

3      No issue was raised on appeal doubting that special circumstances rendered that desirable in the first instance, in terms of s 5(b) of the Act.

Judge had referred only to the threshold ground under s 8(1)(a) and had not referred to consideration of the child’s welfare and interests, as required by the Court of Appeal’s judgment in Director-General of Social Welfare v L.4

(b)Thus, incorrectly applying the test under s 8, the Judge failed to take into account the child’s welfare and interests.

(c)In failing to take account of the child’s welfare and interests, the Judge’s application of the test for an adoption order under s 11 of the Act was wrong in law.

(d)In reaching her decision the Judge failed to give heed to the rights conferred on children by the United Nations’ Convention on the Rights of the Child (UNCROC).5

[11]   Mr Rayner submitted that had the Judge turned her mind to the issue of whether the child’s welfare and interests would be promoted by the order dispensing with consent and the making of the adoption order, the threshold would not have been met, nor the orders made.

[12]   Ms Dufty, counsel for the respondents, accepted that the welfare and best interests of SW were relevant both to the decision dispensing with consent under s 8 and the decision to make an adoption order under s 11(b). However, she submitted that, while not stated, SW’s welfare and best interests were paramount in every aspect of the Judge’s decision. She submitted that the judgment needed to be read in totality having regard to the social worker’s report and the memorandum of the lawyer to assist the Court, to which the Judge referred.

[13]   Ms Dufty also submitted that it would not be in SW’s interests to discharge the adoption order.

4      Director-General of Social Welfare v L [1989] 2 NZLR 314 (CA).

5      Convention on the Rights of the Child GA Res 44/25 (1989).

High Court’s approach

[14]   Although expressed as an appeal, I am really dealing with an application under s 8(7) of the Act to revoke the Family Court’s order dispensing with consent, and consequently to discharge the adoption order. There is no right of appeal against the grant of an adoption order.

[15]   In relation to this Court’s approach, Mr Rayner submitted this is necessarily an appeal of the Family Court’s decision and referred to the settled approach on general appeals set out in Austin, Nichols & Co Inc v Stichting Lodestar:6

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.⁷ In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[16]Mr Rayner also referred to the Court of Appeal’s decision in D v S:8

The second matter which the applicant wishes to argue in this Court does not give rise to any question of law. An appeal to the High Court from the Family Court is an appeal by way of rehearing. Whilst the High Court will naturally give weight to the views of the specialist Court and may in some cases think it best to remit the case for reconsideration, it is fully entitled to substitute its views on questions of fact, including the issue of what is in the best interests of the child or children concerned. There is no rule of law requiring the High Court to defer in these respects to the Family Court even in a finely balanced case. We would add that in the particular case it was most understandable that the High Court should wish to avoid further extending the protracted and distressing litigation between the parents. It rightly took the view that a further hearing in the Family Court was undesirable.

[17]   Acknowledging that that case involved an appeal under the Guardianship Act 1968, Mr Rayner submitted that, along with the level of deference following Austin, Nichols, this is the correct approach to take in this case.

6      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16]. See also Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

7      As illustrated by Wright v Powell [1982] 1 NZLR 473 (CA).

8      D v S [2003] NZFLR 81 (CA) at [18].

[18]   To the extent that the power to dispense with consent under s 8 of the Act involves the exercise of discretion, Mr Rayner also referred to the approach of an appellate court in May v May.9 Namely an appellant must show that the Judge acted on a wrong principle, failed to take into account some relevant matter or took account of some irrelevant matter or was plainly wrong.

[19]   Section 8(7) of the Act gives this Court power to revoke orders dispensing with consent and to discharge an adoption order. Although not expressed as an appeal, this Court’s approach is akin to a rehearing, and I take the same approach as if it were an appeal.

Dispensing with consent

[20]   It was common ground that the Family Court’s power to dispense with the consent of a parent requires one of the circumstances in s 8(1)(a)–(c) to be met and then for the discretion to be exercised based on the child’s welfare and interests.  This was made clear by the Court of Appeal in Director-General of Social Welfare v L and B v G.10

[21]   It was also common ground that the requirement in s 8(1)(a) had been made out, namely that Ms S has abandoned SW.

[22]   The Judge was clear that dispensing with the consent of a parent is a serious matter and the threshold is high. However, the Judge’s specific references to the requirements for dispensing with consent under s 8 focused on the circumstances in  s 8(1)(a)–(c). Although the Judge referred to Director-General of Social Welfare v L, she did so only in relation to the requirement of the statutory condition in s 8(1)(a).11 I accept that the judgment did not state explicitly that to dispense with parental consent under s 8, it is necessary to consider the child’s welfare and interests.

9      May v May (1982) 1 NZFLR 165 (CA) at 169–170. See also Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

10     Director-General of Social Welfare v L [1989] 2 NZLR 314 (CA) at 318–320, 322 and 326; and B v G [2002] 3 NZLR 233 (CA) at [36].

11     Re W and W [2018] NZFC 6891 at [11].

[23]   The real question is whether the Judge failed to take into account the child’s welfare and interests in deciding to dispense with consent under s 8. If so, that would amount to an error.

[24]   Ms Dufty emphasised that the Judge had the benefit of the s 10 social worker’s report and the two reports of the lawyer appointed to assist the Court when considering the evidence. Ms Dufty submitted that it was self-evident from the Judge’s discussion of the s 8 issue that the Judge adequately turned her mind to the welfare and best interest of the child.

[25]   While not stating the central importance of the interests of the child explicitly, the following passages in the judgment refer at least implicitly to SW’s interests (leaving aside the references to Ms S’s abandonment):

[6] …[SW] was declared to be a child in need of care and protection and placed in the care of the applicants. On 21 November 2012 parenting orders were made in the Family Court at Manukau, providing the applicants for day- to-day care of [SW] and appointing them as [SW’s] additional guardians and I take that into consideration in terms of the legal history of [SW’s] placement with the applicants… There were no care and protection issues once [SW] was placed in the care of the [Ws].

[8] The applicants have two other children … and [SW] considers these children to be her siblings, and is an integral part of the [W] family. It is also noted that the applicants are financially secure and able to provide her with all things necessary to ensure she has a happy, fulfilled life with an opportunity to assist her to achieve her potential.

[14] I am dispensing with the consent of the mother, noting that it is a serious issue and there needs to be a high standard. I note there are no plans for her other biological children to return to Ms [S’s] care. [Ms S] remains in prison and that she meets the criteria set out in s 8(1)(a) to dispense with consent. So I am now going to consider whether there be a final order and I ask for [SW] to be brought in to me.

[26]   Mr Rayner submitted it is not enough to say it is self-evident that the child’s interests were taken into account. He points to the Judge’s conclusion on the s 8 consent dispensation issue at [14] of the judgment quoted above, which refers only to s 8(1)(a).

[27]   While the Judge no doubt had in mind the social worker’s report and the two reports of the lawyer appointed to assist the Court, there is nothing further in those reports that assists explicitly on the s 8 issue.

[28]   I consider that the Judge’s reasons on the s 8 issue focus essentially on s 8(1)(a) and that, at least explicitly, the Judge did not exercise the discretion to dispense with Ms S’s consent based on SW’s welfare and interests. Nevertheless, focusing on SW’s welfare and interest, I also consider that in the circumstances of this case the Court should dispense with Ms S’s consent. Ms S has not made any contact with SW since SW was placed in care as an infant. Given this, Ms S’s lack of participation in the Family Court and her addiction issues and imprisonment, I am satisfied it is in SW’s best interests to dispense with consent.

Adoption order

[29]   At this second stage, determining whether the adoption order should be made, it is also clear that the welfare and interests of the child must be considered. Section 11(b) of the Act states:

That the welfare and interests of the child will be promoted by the adoption, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child.

[30]As the Court of Appeal said in B v G:12

The Court’s inquiry at this stage under s 11(b) will be a broad-based one, taking into account the alternatives to adoption. The Court must come to the view that adoption by those particular adoptive parents will promote the welfare and interests of the child as compared to any available alternatives. This approach is consistent with the United Nations Convention on the Rights of the Child and modern thinking.

[31]   As Ms S had abandoned the child, Mr Rayner submitted there was no issue of her security and hence there was no advantage to SW in adoption over the status quo of the parenting order and guardianship. He referred to the Family Court’s general approach, citing In the Adoption of AJM, which reviewed several Family Court decisions and set out this summary:13

12     B v G [2002] 3 NZLR 233, [2002] NZFLR 961 (CA) at [43], and summarised at [68].

13     In the Adoption of AJM [2005] NZFLR 529 (FC) at [33].

Due to the permanent nature of adoption, the Courts have shied away from making adoption orders unless an advantage to the child can be determined. Most often the perceived advantage is the permanency of the order where there is the potential for litigation or interference in the upbringing of the child. Where custody and guardianship orders can adequately meet the security of the child however, the Courts are less likely to make an order for adoption. This preserves the child’s rights of succession and the natural and cultural links with its family. This may be particularly important where the child is of ethnic origin. Each case has however discussed and weighed the advantages of guardianship and adoption within the context of the particular facts. No Court has chosen to espouse a general opinion of the circumstances in which adoption is to be preferred.

[32]   Mr Rayner submitted the Judge had not considered the benefit of adoption compared with the alternative of the status quo. I accept that the Judge did not explicitly deal with the advantage of adoption as against the counterfactual of the status quo.

[33]   Mr Rayner submitted that the Judge failed to consider the welfare and interests of the child. He relied on paragraph [15] of the judgment which referred to s 11(a) but not s 11(b) of the Act. However, the Judge also said in that paragraph, which was clearly referring to the social worker’s discussion and summary, that “[SW] is an incredibly loved and cherished little girl”. I note that the social worker, after dealing with Mr and Mrs W’s fitness in terms of s 11(a), stated:

This adoption order will provide [SW] with the security of belonging to her current family. Therefore, I believe that the adoption is in [SW’s] best interest, meeting the requirements of Section 11(b) of the Adoption Act 1955.

[34]I also note that the Judge went on to say this:14

The counsel to assist, in paragraph 33 of her memorandum on 31 August 2018, notes that she considers that Mr and Mrs [W] meet the criteria for s 11. The circumstances are such that [SW] has been with Mr and Mrs [W] for almost seven years, so virtually since she was a baby and that is the only arrangement except for a short time with caregivers through Oranga Tamariki – Ministry for Children.

[35]   Although that paragraph of counsel to assist’s memorandum of 31 August 2018 also said Mr and Mrs W “meet the criteria for s 11”, I consider it is clear, reading that memorandum as a whole (which is consistent with counsel to assist’s earlier

14     Re W and W [2018] NZFC 6891 at [16].

memorandum of 22 December 2017), that counsel to assist and the Judge clearly had in mind the requirements of both s 11(a) and s 11(b) of the Act.

[36]   In any event, it is necessary for me to consider afresh, on the evidence, whether the welfare and interests of SW will be promoted by the adoption.

[37]   Before finally addressing that key question, I note that Mr Rayner also relied on Articles 7 and 9 of the UNCROC and submitted that the Judge had not considered them. As the approach to s 11(b) set out by the Court of Appeal in B v G is consistent with the UNCROC provisions,15 I consider there was no need for the Judge to consider them explicitly.

Will the welfare and interests of the child be promoted by the adoption?

[38]As Richardson J said in Director-General of Social Welfare v L:16

If all the specific restrictions and conditions are met, including, in terms of s 11, that the Court is satisfied as to the matters specified in that subsection and so is satisfied that the welfare and interests of the child will be promoted by the adoption, I cannot see any proper basis under the statute on which the Court would be entitled to refuse to make the order.

[39]   Mr Rayner submitted that the status quo provided sufficient security for SW, and added that the legal fiction of adoption here created an absurdity whereby Ms S and SW would be cousins since SW is Mr W’s great niece.

[40]   As Ms S had not participated in the proceeding, I asked Mr Rayner whether she might wish to file further evidence. Mr Rayner responsibly acknowledged that that would not be appropriate – she might explain why she did not participate but there would be no evidence that would have made a difference.

[41]   Ms Dufty submitted that SW has never known her mother so there is no emotional attachment; SW is delighted that she has been adopted by Mr and Mrs W; SW is aware that her older brother (Mrs W’s child) was adopted by Mr W; SW considers herself to be an integral part of the family; SW is loved and cherished; SW

15     B v G [2002] 3 NZLR 233 (CA) at [43].

16     Director-General of Social Welfare v L [1989] 2 NZLR 314 at 318.

has already had an adoption party to celebrate being adopted into Mr and Mrs W’s family, which is the only family she has ever known; and it would be contrary to SW’s welfare, best interest and her wishes, to have the adoption order discharged.

[42]   The social worker reported that Mr and Mrs W are happy for SW to have contact with Ms S if it is in a safe environment and in her interests. They also hope there can be contact between SW and her younger siblings once their permanent care has been confirmed.

[43]   Even though I expect that Mr and Mrs W will continue to parent SW in the positive way they have done whether or not there is an adoption order, I am satisfied that the welfare and interests of SW will be promoted by the adoption. I agree with the social worker that adoption will provide SW with the security of belonging to her current family. Adoption has the emotional and legal advantage of making SW part of the W family permanently. The legal advantage includes inheritance.

[44]   As counsel to assist the Court signalled to the Judge, I also consider that special circumstances rendered it desirable that a final adoption order should be made in the first instance, in terms of s 5(b) of the Act.

[45]   Costs would ordinarily follow the event. In this case, an application for legal aid was outstanding before the hearing and on 28 February 2019 Lang J declined to order security for costs. Costs will need to be addressed once the legal aid status is known. Counsel should file memoranda as soon as the position is clear.

Result

[46]The appeal is dismissed.

[47]Costs are reserved.

Gault J