Temple v Barr HC Wellington CIV 2010-485-561

[2010] NZHC 1476

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

THE CASE MAY BE CITED AS "TEMPLE V BARR AND HOLBORN"

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-000561

UNDER  the Care of Children Act 2004

BETWEENKT Appellant

AND  L AND R B

First Respondents

AND  JH

Second Respondent

CIV-2010-485-000559

IN THE MATTER OF     the Judicature Amendment Act 1972

BETWEENKT Plaintiff

ANDTHE LOWER HUTT FAMILY COURT Defendant

Hearing:         12-13 August 2010

Counsel:         G M Letts, M Freeman and K E Muir for Appellant/Plaintiff

P A Le Page and V A Nathan for First Respondents J F Sanders and C L Leader for Second Respondent M Chisnall - Counsel for Child

Judgment:      24 August 2010

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 11.00am on the 24th day of August 2010.

KT V L AND R B And Anor HC WN CIV-2010-485-000561 [24 August 2010]

RESERVED JUDGMENT OF GENDALL J

Preliminary

[1]      Appeals in the family law area often highlight problems over identification of parties, children and others and in the manner of which decisions are reported.  Many cases are known by initials.   Some Judges have devised means of describing appellants and others by fictioning names so as to ensure the case is not reported under which has been said to be another set of “meaningless initials”.[1]    It is not a practice which I have adopted but on reflection, I consider it preferable in this case.

[1] See Brown v Argyll HC Rotorua CIV 2005-463-18, 9 May 2006.

[2]      Accordingly,  one  version  of  this  judgment  recites  in  its  intitulement  the correct names of the parties, although in the body of it the assumed names are recorded.  The other version of the judgment which may be published in any report (but still complying with ss 11B to D of the Family Courts Act 1980) the names of all parties, intitulement and body of the judgment are those adopted in the following glossary:

•    the female child – “Ruth”;

•    the appellant/plaintiff – the natural mother, “K Temple”;

•    the custodial parents, the first respondents – “L and R Barr”;

•    the second respondent/natural father – “J Holborn”.

[3]      Ruth has been in the care of the Barrs since her birth on 1 May 2008 and she is now aged two years four months.   A final day-to-day parenting order was confirmed  in  the  Family  Court  at  Lower  Hutt  on  4  March  2010,  and  as  a

consequence an application for a parenting order by Ms Temple was dismissed.

[4]      Mr Holborn  is  the  second  respondent,  who  supported  the  application  of Ms Temple and continues to do so.   Judge I G Mill, sitting in the Family Court, heard oral evidence and submissions over four and a half days, and cross- examination of the primary parties and others, including a clinical psychologist.  He had multiple affidavits together with a report from the psychologist engaged by the Court and a s 132 social worker’s report.

[5]      The proceedings were two-fold, being an appeal by Ms Temple against the decision of the Family Court, and a separate application for judicial review of the Family Court at Lower Hutt contending that orders it made in the proceedings were unlawful (they being orders granting leave to the Barrs to apply for interim orders, the making of the interim orders in favour of the Barrs on 31 July 2008, and the making of the final parenting order on 11 December 2008).  The grounds alleged are illegality, improper purpose, error of law and unreasonableness.

[6]      Simon France J expressed the view in his Minute of 5 July 2010 that the need for the judicial review proceeding was not apparent, stating that it largely overlapped the appeal.  The judicial review sought to contest interim order decisions that have been overtaken by a final order.  I confess that I initially was inclined to share that view  and  query  why  the  appellant  should  now  seek  to  involve  traditional  and technical arguments on a judicial review process.  I have now reflected on that issue and it is something to which I will return when dealing separately with that application at [85] – [114].

[7]      The Family Court judgment sets out in detail all the evidence and background and I summarise the essential background as follows.

Background

[8]      Ms Temple and Ms Barr became friendly through a common interest in fitness activity.  When Ms Temple became pregnant with this child, she agreed that after she gave birth the baby should be given to, and go into the care, of the Barrs with a view to an adoption being arranged.  Within a few hours of the child’s birth she was taken, pursuant to that arrangement, by Ms Barr and she and her husband

assumed the care of the child which has continued to date.  The biological father of the child may not have known of that arrangement at that time.  He did not have a marriage or civil union with Ms Temple.  Nor could it be said that he had a de facto relationship  with  her  despite  they  being  the  parents  of  three  male  children. Ms Temple had a fourth female daughter.  They lived apart and Ms Temple was in receipt of the domestic purposes benefit.  But the couple had an ongoing relationship and consorted on frequent occasions.

[9]      For a number of reasons an application to adopt was not made nor did any adoption process proceed.  Ms Temple had some second thoughts, and Mr Holborn, although apparently content for the child to remain with the Barrs, was not enthusiastic about, or did not support adoption.  The child was being breastfed by Ms Barr and the natural parents did not insist or request the child’s return.   Two months after the child was born on 9 July 2008, the Barrs sought leave to apply for a parenting order, and a substantive order with proposed day-to-day care and contact being described as:

[Ruth] shall be in our day-to-day care with [Ms Temple] and [Mr Holborn]

having contact with [Ruth] at times to be agreed between all the parties.

[10]     On  31  July  2008  Ms  Temple  and  Mr  Holborn  consented  to  the  interim parenting order and a guardianship order.  A condition of the interim order was that it ceased after the expiration of one year and the Barrs were required to take “all reasonable steps to obtain a final order as soon as practicable”.   The order was subject to monitoring and review and placed in the Family Court Judge’s List for

16 October 2008.   A final parenting order in favour of the Barrs with reasonable contact reserved to Ms Temple and Mr Holborn was then granted, again by consent, on 11 December 2008.

[11]    Earlier, on 17 October 2008, Ms Temple and Mr Holborn consulted an experienced family law practitioner at Lower Hutt.  Although the appointment was made for Ms Temple she attended together with Mr Holborn.   Privilege has been waived so the practitioner made an affidavit.  She said she had explained the features of adoption and parenting and additional guardianship orders and:

They both appeared interested in exploring that option [parenting orders] further ... [and] [Ms Temple] seemed to me to be clear that she wanted [Ruth] to remain with the caregivers. [Mr Holborn] was less sure. He felt he had been left out of the discussions and needed more time.

They both agreed that [Ruth] needed to stay where she was, at least until they had completed counselling and had the opportunity to take more legal advice if necessary.

[12]     Despite  consenting  to  the  final  parenting  order  on  11  December  2008, Ms Temple applied on 18 February 2009 for a discharge of that order.  An interim contact order was then made by consent in March 2009 granting to Ms Temple and Mr Holborn contact with the child, and a further interim contact order was made by consent in December 2009 when the contact was further defined.

[13]     The proceedings were then heard on a defended basis over an extended four day period in early February 2010.

The Family Court decision

[14]     The reserved judgment of Judge I G Mill encompasses 186 paragraphs and comprises  a  detailed  recitation  of  the  factual  background,  issues  and  the  law. Ms Temple  and  Mr  Holborn,  the  natural  mother  and  father  of  the  child,  are New Zealand and Cook Island Mäori.  The Barrs, the current caregivers, are Päkehä. Judge Mill recorded the “paramountcy principle” that he had to follow, and made certain relevant factual findings:

•   Ruth was firmly bonded to Ms and Mr Barr whom she considers to be her mother and father to whom she is securely attached;

•   if Ruth remained in their care she could expect to develop happily into adulthood, although in time would need to understand why she is a Mäori child growing up in a Päkehä home;

•   if  there  was  transfer  of  Ruth  to  her  Ms  Temple’s  care,  it  would  be traumatic   initially   and   successful   transition   and   attachment   to

Ms Temple, whilst not guaranteed, could only be achieved if there was a secure and loving setting with professional clinical help;

•   Ms Temple and Mr Holborn have an unconventional relationship, not living together but having frequent sexual contact, and have three sons aged between 7 and 10.  Their relationship from time to time has not been entirely smooth with evidence of domestic violence requiring some police callouts, over the past ten years.   The Judge said that he treated the information contained in police summaries and reports cautiously, but noted the obvious point that if there was a risk of domestic violence, and a risk that Ms Temple and Mr Holborn’s relationship was not stable

enough, then this would have an impact upon Ruth.  The Judge said:[2]

[2] KMT v RAB FC Lower Hutt FAM 2008-032-528, 4 March 2010 at [54].

I  was  concerned from the  evidence that  there may  be  a history of domestic violence between the two adults, the risk of which extended until today.  I was concerned there was a degree of aggression in their relationship and this was at least one reason why they were not together.   I needed to evaluate this as a possible reason for [Ms Temple] being so determined for so long to give her baby to [Ms Barr].

•   the Judge said there was a dispute about the nature of this relationship, as given in the evidence of Ms Temple, but the Judge found as a fact that the police  were  called  because  of  altercations  between  Ms  Temple  and Mr Holborn  on  six  occasions  between  2000  and  2009.    There  was evidence as to some convictions of Mr Holborn and the Judge concluded

in relation to Ms Temple’s evidence:[3]

[3] At [79] – [80].

Given the police information and her acceptance of some matters and [Mr Holborn’s] convictions her previous description of the relationship as stable and violence-free since the 1990s cannot be right.   As recently as January

2009 the police were called out because a neighbour was concerned about an altercation between them.  [Ms Temple] therefore  dismisses  as  insignificant  the  various  police callouts in recent years.

I must factor this evidence and my findings into whether I

can be satisfied that [Ruth] could successfully transfer into

[Ms  Temple’s]  care  and  securely  attach  to  her  and  [Mr

Holborn].

•the Judge noted that Mr Holborn accepted that he had assaulted Ms Temple in April 2003 for which he had a criminal conviction, and whilst he admitted an assault in 2000, he did not  consider  it  against  Ms  Temple.    Judge  Mill  made  the factual finding that he was satisfied that it was.

•the Judge referred to a sentence of six months’ supervision imposed upon Mr Temple in November 2006 and said:[4]

This gives me little confidence about the stability  of the relationship between [Ms Temple] and [Mr Holborn who] received  a  year’s  supervision  in  respect  of  a  domestic assault,  breached that  on  two  occasions and  received  an extra  six  months’  period  of  supervision to  complete  the sentence.  [Mr Holborn’s] claim that he has addressed issues of violence because he has now completed the sentence must be seen in that light and the fact the police have been called out in 2007 and 2009 because of arguments between him and [Ms Temple].

[4] At [93].

[15]     The police reports were of course hearsay and Judge Mill expressly referred to the caution he applied to the contents, given various denials by Mr Holborn.  But hearsay evidence was admissible under s 128 of the Care of Children Act 2004, namely that in all proceedings the Court may receive any evidence that it thinks fit whether or not it is otherwise admissible in a Court of law.  In any event hearsay evidence  is  generally  admissible  if  the  circumstances  relating  to  it  provide reasonable assurance that it is reliable, and either the maker of the statement is unavailable as a witness or the Judge considers undue expense or delay would be caused if the maker were required to be a witness (s 18 Evidence Act 2006).

[16]     It is clear that the police reports relating to the domestic disputes said to involve Ms Temple and Mr Holborn are second hand, and some of the contents was denied.  Nevertheless, they were admissible and the Judge specifically recorded that he treated it with caution bearing that in mind.  But they were reports made by police officers in situations where they had been called to household premises where there

was concern of domestic violence.   Those reports also recorded not simply what people had said but officers’ own observations, conclusions and opinions.   Given that there were convictions for domestic violence, and other material before the Family Court relating to Mr Holborn, the police reports were likely to have been made in circumstances that suggested they were more reliable than otherwise might be the case.

[17]     But the Court had to deal with the present, and future and the Judge observed that people can change and relationships can strengthen.  This is what Ms Temple and Mr Holborn contended.  Yet the Judge said his task was to assess what was in Ruth’s best interests given his findings about a continuing and longstanding issue of aggressive behaviour.

[18]     The Judge referred to other factors which were raised by Ms Temple and Mr Holborn including the reluctance or ambivalence at the early stage in having Ruth placed with Ms Barr;  their concerns about the child being raised by a Päkehä couple;  and the evidence which the Judge said supported the view that Ms Temple was keen to proceed to give Ruth away as she was concerned about having further dependent children and about her relationship with Mr Holborn.

[19]     The Judge referred to Mr Holborn’s evidence that he would welcome help for the child’s sake, so as to provide her with a secure attachment but the Judge had some doubts about his commitment, in the light of poor compliance with a supervision sentence and following a serious assault on Ms Temple.

[20]     So, Judge Mill in dealing with the positive and negative aspects of the child returning to Ms Temple concluded that:[5]

... there is considerable risk in [Ruth] going into the care of [Ms Temple] with [Mr Holborn] in whatever role he can sustain, given the intense, important and urgent task for [Ruth] to bond and attach before she is much older.

[5] At [115].

[21]     The Judge then considered the benefits and risks of the child continuing to remain with the Barrs.   His Honour found that the relationship was secure and

loving.  He was critical about the manner in which they may have initially pursued adoption, especially at a time when Ms Temple was vulnerable.   That is, some pressure  came  to  bear  upon  Ms  Temple.     The  Judge  analysed  the  evidence concerning that interaction, and the fact that the Barrs were warned not to place undue pressure upon Ms Temple and found that although there was not intentional pressure, the intensity of the behaviour of Ms Barr would inevitably have led to pressure.  Obviously, there were strong emotions and motivations on the part of both women at the time of the Ruth’s birth.  Ms Barr wanted the child, and Ms Temple

wanted (then) to give her away.  The Judge found that:[6]

However the importance of this evidence diminishes when I consider events following the birth.  [Ms Temple] did not insist on the child’s return nor did [Mr Holborn].   They consented to interim and final guardianship and parenting orders.  Those consents were not procured by pressure from the custodial mother in my view but by an acceptance by [the birth parents] at the time that the arrangements for [Ruth] were suitable.

[6] At [159].

[22]     The  Judge  then  referred  to  the  present  conflict  between  the  adults.    He observed, pertinently, that if it continued then Ruth’s wellbeing could be adversely affected and he said it will be a challenge to the parties to ensure conflict reduces – whoever it may be who has the day-to-day care.  The Judge said:[7]

If [Ruth] remains where she is it is essential that she have regular contact and that is sufficient flexibility for her to naturally experience her birth family and her culture.   These things will be of great importance to her identity as a person even though according to [the psychologist] they will not become apparent issues for her for a few years to come.

[7] At [164].

[23]     The Judge then referred to issues of attachment which he said were clear, and obviously so.   Ruth was securely attached to Ms Barr as her primary attachment, although did not diminish the attachment of Mr Barr. The Judge observed:[8]

[8] At [165] – [169].

The importance of a secure attachment for small children during the first two or three years of life is well known from research and experience.  It is what allows a child to learn and develop emotionally and intellectually as she grows.   Failure to properly attach leads almost inevitably to lifelong problems.

Although [Ms Temple] thinks that attachment has been achieved between her and [Ruth] in my view what she is talking about is not the attachment

that [the psychologist] talks of.   There is a bond between [Ruth] and her natural parents.   There are building blocks for attachment to be attained. Attachment may still be achieved even given [Ruth] is now 22 months old ...

It will also require [the Barrs] to be out of the picture initially and then to be integrated into [Ruth’s] life in another way.

All things going well [the psychologist] would expect that [Ruth] would be securely attached and sufficiently secure by the time she goes to school.

If she stays where she is, she is firmly attached to [the custodial mother] in particular at present and I can expect she will develop well emotionally and psychologically.

[24]     The Judge observed there were naturally two competing cases involving risks with neither providing a perfect answer.  He said there were challenges for the adults to see that Ruth’s welfare is best served.   In weighing up the competing considerations, he noted Ruth’s present secure attachment to Ms Barr and the likelihood of that continuing for years to come before issues are raised over “her identity and cultural belonging”.   He noted that if Ruth was to be transitioned to Ms Temple now this would be traumatic for her, and if she was to securely attach to them, then it would require a lot of work by Ms Temple (and Mr Holborn) and a lot of help, which had to be accepted and listened to.   The Judge said “if it is not achieved however the outlook is rather bleak”.

[25]     The Judge’s conclusion was that, on balance, he had more confidence that the child would develop securely, emotionally and psychologically, if she stayed with her present caregivers the Barrs.  I discern as his reasons:

•   Ruth had bonded to Ms Barr as her psychological mother;

•   there existed a risk of Ruth being exposed to domestic conflict between

Ms Temple and Mr Holborn;

•   had  had  reservations  about  the  stability  of  the  Ms  Temple  and

Mr Holborn’s relationship given the past domestic violence concerns;

•   Ms Temple is “ambivalent” about what she wants for Ruth;

•   Mr Holborn not only consented to the original parenting orders in favour of the Barrs, but failed to confront Ms Temple so as to address and discuss the issue.  Whilst the Judge said Ruth was at risk of losing her identity and culture the Judge did not see Mr Holborn as someone who could promote what was in her best interests if there arose opposition from Ms Temple;

•   the Barrs have a secure partnership, and a strong relationship with Ruth, who would still need to experience her family culture and siblings so that contact is important both in principle and in fact.  Such contact needed to be flexible, but not disruptive of Ruth’s life at home, which will require commitment and effort by both parents.

Appeal principles

[26]     The appeal is by way of rehearing.  It is governed by s 143 of the Care of Children Act 2004 and ss 73-79 of the District Courts Act 1947 apply.  Naturally, this Court gives weight to the views of a specialist court such as the Family Court. Nevertheless the test must be, whether the Family Court decision was wrong.  This Court  is  entitled  to  substitute  its  views  on  questions  of  fact  and  conclusions, including the issue of what is in the best interests of the child.  The appeal approach is that well known in terms of the principles discussed in Austin, Nichols & Co Inc v Stichting  Lodestar  that  the  appellate  court  may  substitute  its  view  for  the  first instance decision:[9]

... 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.

[9] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at [16].

[27]     In B v K the Court of Appeal said:[10]

[10] B v K [2010] NZCA 96 at [39].

Austin Nichols makes it clear that an appellate court on a general appeal has the responsibility of considering the merits of the case afresh.  The weight it gives to the reasoning of the court below is a matter for its assessment.  It is

entitled to take the lower court’s reasoning into account, or it may reach a different conclusion with little reference to that reasoning (we put to one side factual findings based on findings as to credibility).  But when considering the merits of the case it is not required to be “uninfluenced by the reasoning of the [court below] ...”

[28]     Counsel agree that a rehearing, in the sense of a rehearing of all the evidence or any new evidence, is not required.  In an assessment of the Family Court decision, if the conclusions drawn by the Family Court Judge were wrong then this Court may substitute its view, it being as well placed as the Family Court to carry out that evaluation.  But I also bear in mind the natural advantage the Family Court Judge had in assessing the witnesses that he heard, and their reliability and credibility.

Legal principles

[29]     These are not disputed.  Section 4 of the Care of Children Act 2004 mandates the Court to treat the welfare and best interests of the child as the first and paramount consideration.  A parent’s conduct may be considered only to the extent, if any, that it is relevant to the child’s welfare and best interests.   The Court must take into account that decisions affecting a child should be made and implemented within a timeframe appropriate to the child’s sense of time.   It must take into account the principles set out in s 5 that are relevant to the welfare and best interests of the particular child, in his or her unique circumstances.

[30]     The six principles set out in s 5, to which the Court must take into account are not simply to be applied as a checklist in an itemised form in the expectation that this will necessarily lead to the right result.   They are considerations to be kept to the forefront, and to which regard is had when determining what would best promote the welfare of the child.  Those principles in s 5 are as follows:

(a)the child’s parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child’s care, development, and upbringing:

The expression “parents” and “guardians” is not interpreted narrowly to refer only to a child’s biological parent or legal guardian but will include a father or mother figure

with whom a child has bonded over a period of time, sometimes referred to as a

“psychological parent”.

(b)there should be continuity in arrangements for the child’s care, development,  and  upbringing,  and  the  child’s  relationships with his or her family, family group, whänau, hapü, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents):

Whilst there is no presumption in favour of maintaining the status quo minimising disruption anxiety, a sense of loss to children is important.   Obviously, children should have continuing relationships with both parents (if separated from birth or other parent) and wider family group.

(c)the  child’s  care,  development,  and  upbringing  should  be facilitated  by  ongoing  consultation  and  co-operation  among and between the child’s parents and guardians and all persons exercising the role of providing day-to-day care for, or entitled to have contact with, the child:

This is the ideal.  Regrettably in many cases, including this, conflicting emotions and feelings of respective competing parties get in the way of there being ongoing consultation and co-operation.   Of course, the principle is based upon parents or those competing for the contact of children to be encouraged to agree to their own arrangements but people cannot be forced to consult or co-operate.

(d)relationships between  the  child  and  members  of  his  or  her family,   family   group,   whänau,   hapü,   or   iwi   should   be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing:

This recognises that whilst the parents (day-to-day caregivers) and guardians are to have the primary responsibility for the child, there remains a role for the child’s wider family which should be given proper recognition if at all possible.

(e)the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence (whether by members of his or her family, family group, whänau, hapü, or iwi, or by other persons):

Protection of the child’s safety is mandatory.  The provision says “must”.  The other principles in s 5 are said to be “should”.  The Court has a wide role to inquire into the background of any person who may have care or contact with the child and any parent, family or other group where there is a risk of violence, whether against the child or otherwise that may affect the child.   The section refers to all “forms of violence”.  It is not just physical or sexual violence, and is wide enough to require protection from witnessing or being involved in an environment where violence is likely to be observed and in that way impose suffering upon the child.

(f)the child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

[31]     The factors are not exhaustive and many may overlap.  No one factor is to be treated as decisive, because the task entrusted to the Court is personalised to each individual child and family.

[32]     Within those wide statutory principles, there may be consideration of matters such as parenting attitudes and abilities;   strength of existing and future bonding; availability for and commitment to, quality time of the child;  support for a continued relationship  with  other  parents  or  family;     security  and  stability  of  home environment;    availability  and  suitability  of  role  models;    positive  or  negative attitudes  of the  wider  family;    provisions  for  physical  care  and  help;    material welfare;  available stimulation and new experiences, educational opportunities;  the wishes of the child;  blood ties;  cultural and ethnic factors;  and there will be more depending on the particular circumstances of the child and the contest and these

would include blood ties.  All of these were summarised by Fisher J in D v W,[11] and

are simply seen as some areas that the Court may keep in mind when assessing the s 5 factors.

[11] D v W (1995) 13 FRNZ 336 (HC).

[33]     In his judgment, Judge Mill referred (at [12] – [24]) to the s 5 considerations and principles.  He noted that of “particular importance” in this case he have:[12]

regard to the fact that [Ruth] is not the natural child of [the Barrs], is not by birth a member of their family group or culture and is not at the present time having extensive contact with her family group, particularly her parents and siblings.

[12] KMT v RAB FC Lower Hutt FAM 2008-032-528, 4 March 2010 at [19].

[34]     The Judge said that the normal starting point would have been the consent parenting order made on 11 December 2008.  That was on the assumption that all parties agreed at the time that such an order accommodated Ruth’s best interests so as to promote her welfare.  Also, that Ms Temple and Mr Holborn were aware of cultural issues and knew what they were doing.  The Judge said that the case had unusual  characteristics  some  of  which  he  identified.     The  consent  order  of

11 December 2008 was a factor that he took into account, but he needed to “turn the clock back” and consider from afresh all the circumstances.  So he, properly, looked at all the circumstances, historical and current, and was not lulled into legalistic analysis.  He kept in mind the report and, evidence of the psychologist, as a helpful guide but it was not the only evidence.

[35]     The manner in which the Judge set out the legal considerations cannot be criticised.  What Ms Temple says, however, is that Judge Mill erred by coming to the wrong  decision  in  his  assessment  of  the  evidence,  and  his  application  of  the principles to that evidence.  That is, he erred in reaching the conclusions drawn by him.  This is because, counsel argued, the Judge paid insufficient regard and gave insufficient weight to factors that favoured Ms Temple and Mr Holborn and which pointed against the Barrs being able to advance, long term, the welfare and best interests of Ruth, when those interests are viewed in the widest dimension.

[36]     Some key factual findings of Judge Mill as they affect the Barrs

•   their  relationship  is  secure  and  they  provide  a  secure  and  loving environment for Ruth;[13]

[13] KMT v RAB FC Lower Hutt FAM 2008-032-528, 4 March 2010 at [118].

•   the relationship between Ms Temple and Ms Barr was intense in the early stages of the pregnancy, but Ms Barr was told not to be concerned about the biological father as “she would deal with him”;[14]

[14] At [130].

•   by February 2008 Ms Barr was losing perspective as to how she should conduct herself in relation to the biological parents.  She was desperate to have the baby yet excited about the prospect and she had become intimately involved in the pregnancy;[15]

[15] At [45].

•   the Barrs assumed care of Ruth, as a newborn infant, contrary to advice given  to  them  by  the  social  worker  that  such  was  not  permitted  in adoption cases.   Ms Temple perceived pressure on her to stand by her decision to relinquish Ruth.  The Barrs assumed care for Ruth for several reasons, but Ms Barr – in Judge Mill’s view – would have done anything

to have Ruth with her at that time but:[16]

the importance of this evidence diminishes when I consider events following the birth. [Ms Temple] did not insist on the child’s return nor did [Mr Holborn].   They consented to interim and final guardianship and parenting orders.  Those consents were not procured by pressure from [Ms Barr] in my  view  but  by  an  acceptance  by  [Ms  Temple]  and [Mr Holborn] at the time that the arrangements for [Ruth] were suitable.

[16] At [159].

[37]     Some  key  factual  findings  of  Judge  Mill  affecting  Ms  Temple  and

Mr Holborn

•   past violent, and assault episodes involving Mr Holborn, alone, or with Ms Temple and responses to those illustrate “a continuing and longstanding issue of aggressive and occasionally violent behaviour between them”.[17]

[17] At [95].

•   Mr Holborn had (and has) strong concerns about Ruth being raised by a Päkehä couple,[18]  and is a “good hearted man who rightly and honestly believes that Ruth is at risk of losing her identity and culture should she remain with” the Barrs,[19] but:[20]

[18] At [101].

[19] At [179].

[20] At [114].

his  consenting to  the  various  orders, the  evidence of  an aggressive and unstable relationship with [Ms Temple] [showed a] tendency to avoid rather than confront issues particularly   in   the   light   of   [Ms Temple’s]   sometimes unreasonable determination to proceed.   In addition his commitment to following through with help must also be seen in the light of the poor compliance with his supervision sentence following a serious assault on [Ms Temple].

•     Judge   Mill    agreed   with   the    psychologist’s    evidence    that

Ms Temple was:[21]

“Ambivalent” around what she wants for [Ruth].  This is not only [the psychologist’s] evidence but also arises from the evidence of [Ms Temple’s] determination to give [Ms Barr], [Ruth] and also [Ms Temple’s] own evidence.  Her evidence that she would effectively withdraw should she not gain day- to-day   care   in   my   view   is   cogent   evidence   of   the ambivalence that  [the  psychologist] talked  of.    Her  later claim that she would take any advice and help that she could get in my view did not reassure me but tended to confirm the ambivalence I had previously seen.

[21] At [177].

[38]     In the end Judge Mill accepted that:

•     Ruth is securely attached to Ms Barr and:[22]

If she says where she is, she is firmly attached to [Ms Barr] in particular at present and I can expect she will develop well emotionally and psychologically.

[22] At [169].

[39]     Those factual findings are not to be final conclusions as to the outcome.  But they were findings that were open to Judge Mill on all the affidavits, reports, and oral evidence that he heard.  The issue for this Court on appeal is whether the Judge was right in his ultimate conclusion as to what of the two competing claims will best advance the welfare and best interests of Ruth.

Discussion

Submissions on behalf of Ms Temple and Mr Holborn

[40]     On behalf of Ms Temple, Mr Letts submitted that the case came down to two essential issues, namely:

•   the right of a child to be raised by its parents, and if a Court found that all other things are equal then the status of the biological relationship must prevail;

•   Judge Mill failed to properly address the s 5 principles, and in particular the issue of the cultural divide between the two competing “sets of parents”, so as to wrongly collapse his decision down to one of risk assessment.

[41]     Naturally,  counsel’s  submissions  ranged  far  wider  than  that.     Counsel submitted that the Judge did not address what he said were “irreconcilable differences” between the parties which would impinge upon Ruth’s development and prevent her re-establishing bonds, connections and relationships with her culture and Mäori identity, with all that that must encompass.

[42]     Developing those submissions, Mr Letts contended that a birth mother and biological parents have an elevated status in the New Zealand legislation when compared to a “stranger” custodial parent by reason of principle 5(a) and that art 9 of the United Nations Convention on the Rights of the Child requires that a child not be separated from his or her “parents” against their wishes.  That of course is the case unless such separation is necessary for the best interests of the child.  Counsel argued that sufficient weight was not given to the biological tie in this case.  He submitted that insufficient weight was given to all principles.  On matters of fact, he submitted that evidence of any past violence between Ms Temple and Mr Holborn was wrongly elevated, or applied improperly by Judge Mill.  He contended that Ms Temple and Mr Holborn had the ability and willingness to assume the primary responsibility for Ruth,  who  needed  to  be  within  her  family  group  and  whänau  so  as  to  have

continuing relationships with them, and with her biological siblings.   He said that Ruth’s growth and upbringing could only be met by ongoing consultation and co- operation between parents and within the wider family or whänau group.

[43]     Particular emphasis was placed by Mr Letts upon the ongoing impact of Ruth being exposed to conflict between the competing parties.  He said this was a factor which  came within  the Court’s  requirements  to  protect  Ruth  from all  forms  of violence.  Ruth’s identity needed to be preserved and strengthened but this could not occur because of the conflict between the parties so that Ruth’s safety was at risk. He submitted that the Judge did not give adequate attention or consideration of this crucial factor.   Put in its simplest form, the submission was that if Ruth remained with her present Päkehä “parents” the continuing conflict between them and the biological  Mäori  parents  would  harm  Ruth.    It  would  prevent  developing  her cultural, biological, and ancestral identities in the sense of “who she is”.   Thus, continued fulltime care by the Barrs would not advance her best interests.  Counsel said that the Judge’s decision has “failed to protect the child from psychological abuse” from such conflicts and unless there was contact with the birth family now then severe difficulties could arise later as a consequence, and because of the conflict which he said would inhibit further contact, Ruth required to be with her birth family.

[44]     In  the  written  and  oral  submissions  advanced  on  behalf  of  Ms  Temple, counsel further contended that the Judge gave insufficient weight to relevant factors said to be identified by the clinical psychologist.  They included risks in remaining where Ruth is;   potential benefits on her being returned to Ms Temple;   and the conduct of the Barrs.   It was further argued that the Court considered irrelevant factors, namely Ms Temple’s acquiescence to Ruth being taken from her care, not insisting on her return, and the finding that Mr Holborn did not act so as to prevent removal of Ruth.

[45]     Counsel submitted the correct approach was that because Ms Temple was a capable parent with a safe and secure home, in which her other children have been brought up, Ruth should be in her care and not be subjected to what he claimed was “ongoing unlawful psychological pressure by the current caregivers”.  It was argued

that Ruth required connection with her whänau and should not face ongoing conflict. Mr Holborn through his counsel endorsed those submissions.   Particular emphasis was placed by him upon what he said was a crucial factor, namely that Ruth is of Mäori race and culture and should not be brought up by European parents.  To allow this would be to deprive her from her culture and spiritual heritage, and influences vital to all who are Mäori.

[46]     Ms Sanders argued that Mr Holborn was the most consistent person in this saga, always being clear that he did not want his daughter to be placed with a Päkehä family.  She said that the Court did not correctly analyse issues of consent, because Mr Holborn (and for that matter Ms Temple) did not have access to legal advice. She submitted that this was not a case involving two equal competing parties and the Judge failed to deal with the issue of the “cultural divide between the parties”. Counsel submitted that the Barrs did not have sufficient motivation to ensure that Ruth has the benefit of the wider cultures and that the Judge erred through being overconfident to expect that the differences of conflict between the competing “parents” could be overcome.   Ms Sanders emphasised the submission made by Mr Letts that the ongoing conflict puts Ruth’s safety at risk and she asserted that the decision “has failed to protect the child from psychological abuse”.

[47]     I will not set out at this stage the competing submissions made on behalf of the  Barrs,  as  will  become  apparent  in  the  discussion  which  follows  on  my assessment as to the merits of the appeal.

[48]     The task entrusted to the Family Court and appellate courts in cases such as these is never easy and involves anxious consideration.   The Court has to make protective orders, which as best it can assess will serve to advance the welfare and best interests of the child in the broader sense.  That does not apply simply to the immediate present but also the long-term future.   It involves making notoriously difficult judgments.  The Courts are not equipped to protect the future, any more than others, but are entrusted with the obligation to simply make an assessment which best reflects the expected or hoped for outcome.  The Court can only do its best to assess on the evidence of what now exists, what has occurred, current assessments

and expert opinions, and all matters relevant to determining what is best for the welfare of the child.

[49]     The s 5 principles are the guides (with of course the mandatory factor relating to safety).  All aspects of the past and future life of the child, upbringing now and for the future have to be considered and assessed, with an overall view being taken.  It is not a question of s 5 principles, or for that matter other factors, being treated as some form of a checklist.  What is required is a weighing up of all those factors which are relevant to the child so as to reach a conclusion that is inevitably predictive.  The discussion of s 5 principles in B v K assists.  There the Court of Appeal said:[23]

[23] B v K [2010] NZCA 96 at [50] – [52].

Section 4(5)(b) provides that, in  determining what best serves a  child’s welfare and best interests, a court must take into account any of the s 5 principles “that are relevant to the welfare and best interests of the particular child in his or her particular circumstances”.  This wording indicates that a court should consider each of the s 5 principles to determine whether it is relevant and, having identified those principles that are relevant, should take account of them in determining the best interests of the child.   .... – the assessment is a highly individualised one which cannot be undertaken in a formulaic way.

It is sometimes said that the s 5 principles do not create any presumption and that no one factor has any greater weight than any other.  We consider that such statements require some qualification to reflect the fact that first, the wording of s 5(e) makes it clear that protection of a child’s safety is mandatory and second, the wording of s 5(b) gives particular emphasis to the maintenance of continuing relationships with both parents. As we see it, this means that there is some priority or weighting as between the various principles.

... While the principles are not exhaustive, s 5 should assist in achieving some degree of consistency and transparency in decision-making, as well as promoting informed decision-making.  But that cannot disguise the fact that the  assessment  is  an  evaluative  one,  involving  the  identification  and weighing of all factors (whether referred to in s 5 or not) relevant to the particular case.

Parents and guardians should have the primary responsibility

[50]     As   I   have   observed,   the   expression   “parents”   might   encompass   a “psychological parent”.  However, in the context of this case the argument advanced both  to  the  Family  Court  and  to  this  Court,  involves  the  proposition  that  the biological parents, where things are equal as it is said is the case here, should

prevail.  It may tend to beg the question of what is meant by “all other things being equal”.  It is not, as a matter of law, that a s 5(a) principle namely that:

(a)the   child's   parents   and   guardians   should   have   the   primary responsibility, and should be encouraged to agree to their own arrangements, for the child's care, development, and upbringing.

must prevail in the sense of being greater importance than other competing factors.

[51]     Naturally, it is an important factor.  The importance or weight to be given to the biological tie between natural parents and a child in contested cases involving the welfare of the child has frequently been discussed.  The weight afforded to it will depend on the circumstance.  For example, this Court in K v G made it clear that the legal and logical starting point was the welfare of the child.   Other considerations were subordinate, and blood ties, although important did not mean that biological parents had a pre-eminent position or “right” to custody or care of the child.[24]    In B(CA204/97) v The Department of Social Welfare Tipping J said that there are cases where the primary focus can legitimately assume the starting point of the biological tie, which is correct, but not in all cases.[25]   The position is what a Full Court set out in K v G:[26]

[24] K v G [2005] 3 NZLR 104 (HC).

[25] B(CA294/97) v The Department of Social Welfare [1998] 16 FRNZ 522 (HC) at 525-526.

[26] At [22] – [23].

Blood ties are important and may, in the particular circumstances of the case, end up being decisive if it be that the welfare of the child requires the he or she be with a natural parent, as opposed to a distant relative or stranger. There are many cases where blood ties have been decisive in assessing the ultimate  welfare of  the  child, for  example see  Watson v  Jacobs [2000] NZFLR 817.  Likewise there have been many cases where because of the particular circumstances, the wishes of a natural parent to have custody of his or her child have been subordinated to others because the child’s welfare so requires it, for example see J v C [1970] AC 668 (HL) and Re Adoption Application 41/61 (No 2) [1964] 1 Ch 48. Beyond doubt, the natural order of society and human understanding and experience is that children are best brought up by a natural parent or parents. As Lord Upjohn said in J v C (supra) at p 724:

“The natural parents have a strong claim to have their wishes considered;  first and principally, no doubt, because normally it is part of the paramount consideration of the welfare of the infant that he should be with them, but also because as the natural parents they have themselves a strong claim to have their wishes considered as

normally the proper persons to have the upbringing of the child they have brought into the world.”

But it is not correct to regard parents as having a preeminent position or having an exclusive “right” to the custody of the child when the future of that child is being considered by the Court.  The words “rights of parents” appear to have assumed some prominence from the correspondence of the parents, or their supporters, in this case.  That may be understandable from their point of view, but it misses the true focus. Parents have obligations and duties towards their children.  They do not have “rights” in the sense that they can enforce or pursue them, unless such a course corresponds with promoting  the  welfare  of  the  child.     There  can  be  only  one  first consideration, and it is the paramount consideration of the welfare of the child.  Of course there are many factors which must be taken into account in determining the ultimate question and:

“[T]he Court must take into account all the merits and demerits of the alternative proposals as they seem likely to bear upon the child’s welfare;    not limiting itself to purely material factors, but considering, as they may bear upon the welfare of the infant, such matters as the natural ties of blood and family relationship.  The tie (if such is shown to exist) between the child and his natural father (or any other relative) may properly be regarded in this connection, not on the basis that the person concerned has a claim which he has a right to  have satisfied, but, if  at  all,  and to  the extent that, the conclusion can be drawn that the child will benefit from the recognition  of  this  tie.    (Re Adoption  Application  41/61  (No  2) (supra) per Wilberforce J (as he then was) at p 53).”

[52]     Those comments have equal force in this case.   It is not a situation where Ms Temple and Mr Holborn have rights that they may enforce.  There is a hint of such a focus in some of the evidence – for example, Mr Holborn’s statement that “I’m here now, fighting for what’s rightfully ours” but I accept that when pressed both Ms Temple and Mr Holborn seek what is best for Ruth.   They, especially Mr Holborn, see it through different coloured spectacles to those of the Barrs.  The Court understands the reasons why the Ms Temple and Mr Holborn feel as they do, yet the Court has to consider the Ruth’s welfare and best interests is the first and paramount consideration.  The Court has to look at all the circumstances that relate to Ruth in this situation at this time, assessing as best it can what course would best provide for the future interests and welfare of Ruth.

The psychologist’s evidence

[53]     These contests are not to be decided by psychologists or other experts.  Yet their opinions may be important and persuasive evidence, and assist a Judge, but he/she has to come to an independent decision after assessment of all the evidence.

[54]     The  Family  Court  had  a  19-page  report  from  Ms  J  Leech,  a  clinical psychologist.  Judge Mill heard oral evidence from her and she was cross-examined by counsel for the parties.   The report was undertaken pursuant to s 133 of the Care of  Children  Act  2004.    Some  key  features,  but  not  all,  of  her  report  and evidence are set out below.   I note that Ms Leech was recalled to give further evidence on the last day of the hearing after evidence as to past events, affecting Ms Temple  and  Mr  Holborn,  had  emerged  in  evidence.    Her  responses  to  that evidence I also record.

Key features in the initial s 133 report of Ms Leech

[55]     Ms Leech said that Mr Holborn told her that he did not want conflicting parental relationships to become part of Ruth’s long-term history and that “he is worried about how it will be for her to have two white parents if she remains with the [Barrs]”.  His approach was that Ruth should be “back where she comes from – with her real family is the right thing to do”.  He was more concerned that the Ruth be with her whänau, stating that the physical home was of lesser importance.

[56]     Ms Leech’s view was that Ruth presented as a “beautifully sociable, happy and expressive child with a secure platform of interaction in the [Barrs’] care”.  Ruth has a normal development history, responds well to the Barrs and some developing attachment with Ms Temple was observed.  Ms Temple spoke of Mr Holborn falling in with a criminal element in the past and served a jail sentence of 18 months for burglary and related offences.  She moved in with him following his release, but he relapsed and started to use “P”.  So his whänau took him in, caring for him until he had overcome that addiction.  He has come and gone from Wellington to take up job opportunities with sometimes lengthy separations from his family.  That is all in the past and he supports Ms Temple whilst she studies.

[57]     There had been recurring difficulties in the relationship between the couple and “they have found it easier to manage living separately than living together”. Ms Leech concluded:

(1)Ruth presented with a secure attachment to the Barrs, relating easily to them and appeared confident about her place in the world.   The Barrs had relatively secure attachment histories of their own.  Ruth is still   developing   a   relationship   with   each   of   Ms   Temple   and Mr Holborn and there is a level of anxiety affecting her during the visits.  Ms Leech had recorded that Ruth was:

a quieter little girl – more effectively low-keyed with her birth parents whom she does not know so well, but the temperamental resilience she carries in the secure environment from which she draws enables her to adjust and adapt when she spends time in the not so familiar birth family home.

(2)Ms   Temple’s   attachment   history   carried   with   it   anxiety   and ambivalence, which has impacted upon her relationships with each of the other children to some extent.  But wider whänau was important and Ruth’s birth mother was a significant figure.   Ruth has shown developing relationships with her siblings.

(3)Ruth has her strongest attachment with Ms Barr with whom she felt secure.  Ms Leech’s opinion was that if Ms Temple’s application was successful then the impact for the child:

will, at least on the short term, generate issues of loss and abandonment  for  [Ruth]  in  relationship  with  [the  Barrs] likely leading to an increased anxiety and more limited capacity for emotion regulation.   Longer term adjustment will  depend  on  the  level  of  security  she  develops  in [Ms Barr’s] care.

If  [Ruth]  is  to  grow  up  with  her  [Ms  Temple]  and [Mr Holborn] the environment may be less settled and [Ms Temple’s] ambivalence could become issue for [Ruth’s] developing  security,  but  it  would  not  pose  the  same problems for her developing identity as it would growing up as an adopted Mäori child in a  Päkehä environment.   If [Ruth] is to grow up with [the Barrs] in the coming five years it can be expected she would obtain a greater level of

emotional security in their care than she would have required to negotiate a transition in care and develop relatively new attachments in an environment where there are attachment vulnerabilities.   [Ruth] would enjoy a socio-economically more privileged upbringing, but once she is around the age of eight she will begin to question why she is a Mäori child growing up with Päkehä parents and she will wonder why her parents did not want her.

[58]   Ms Leech said that adoption is a known risk factor, emotionally and psychologically, with adopted individuals (although adoption is not sought in this case) and “anxious ambivalence in Ms Temple is also a risk factor so ‘there are problems with each environment that makes those longer term risks to [Ruth’s] emotional wellbeing.’”  Ms Leech concluded:

[Ruth] is however protected in part by a temperamental resilience and may do well in either parental environment, but for the history for this child to date is a complicating factor irrespective of which parent she grows up with. This is largely because the two sets of parents are unable jointly to resolve the very essence of [Ruth’s] caregiving and as such are unlikely to be able to support her in developing a coherent and narrative history.

[59]     Ms Leech’s report was made on 14 October 2009 and she gave evidence on 1 and 5 February 2010 in the Family Court.  She said that if Ruth remained with the Barrs it was critical that she maintains an open relationship with Ms Temple and Mr Holborn.  In the initial stage of her evidence, Ms Leech talked about adoption arrangements but the Judge corrected her and said that this was not an adoption case. When asked about possible responses if Ruth went into the care of Ms Temple Ms Leech said that if she were having regular contact with the Barrs whilst in the care of Ms Temple Ruth would

probably find the dual attachments difficult to integrate.  It would get in the way of her forming a stronger attachment with [Ms Temple] because she would be going back into the environment where she has actually felt most secure and so it could heighten her distress and protract her adjustment if there was a lot of contact through that time.

[60]     When  dealing  with  the  experiences  Ruth  would  have  if  placed  with

Ms Temple, Ms Leech said:

There would be a sense of abandonment, of huge loss, ... it would be as if there was some catastrophic accident and the parents have gone and she moved to her birth parents. Protected factors in there are that she already has a developing relationship with them, that her birth mother is the person who

carried her through the pregnancy ... she is very clear about her preference to [Ms Temple] and I would think that to her perhaps having that sense of [Ms Temple] that she developed in utero.   If she were to transition, she would have a huge amount of grief and loss and probably be very unsettled for a period, anxiety levels would be high, but some of those very behaviours that as a young child that she would admit, actually invite the adults to bond and attach as they respond to those very distressed behaviours.  So in some respects it provides, whilst it would be very distressing for [Ruth], it also provides attachment opportunity.   The birth parents would need to be prepared to have counselling and oversight of that process to assist them in developing their attachments with [Ruth] and soothing her appropriately.

[61]     When  cross-examined  Ms  Leech  was  asked  about  evidence  of  conflict between the parties associated with contact, and whether that could be overcome, and said:

There would need to be huge commitment from both sides to overcome the conflict.   There would need to be a willingness to engage in counselling process ... a commitment to change, developing respect for each party for the other.   I  don’t think those things are present currently.   They certainly weren’t at the time of the assessment, there is considerable lack of trust, ... there really doesn’t seem to  be  the  understanding or  the  willingness to embrace one another’s culture ... and there would need to be a preparedness to have some middle ground there and that hasn’t happened.

[62]     When asked what is required from the adults in Ruth’s life, Ms Leech said:

The adults need to be able to act as secure figures for her, so they need to be able to provide her with predictability, sensitivity, the need to be able to nurture.  They need to be able to provide her with a routine ... so those are the essence I guess of that predictability really and the sensitivity and the capacity to  nurture are  essential elements that  the  parent needs to  take account of.

[63]     In  referring  to  Ruth’s  psychological  parent  being  Ms  Barr  currently, Ms Leech reasserted that disruption of that attachment would for Ruth be:

It would be traumatic.  There would be great sense of abandonment and loss and there would be distress for a period.  As I have stated earlier it would be dependent upon what degree [Ms Temple] was able to assist her to become secure in her care and how long it took for that attachment relationship to strengthen and  become  secure  in  terms  of  outcome  psychologically  for [Ruth].

[64]     Ms Leech agreed with the Judge that if Ruth went to Ms Temple there were very serious short term risks, although they could be overcome.   However, if the short  term risks  were  not  successfully  overcome  then  there  could  be  long-term

damage to Ruth.   Judge Mill said to Ms Leech that the best result would be one where all adults co-operated, and her response was:

and that’s why I think the onus is upon these adults to put [Ruth] first and I think that together the four of them have been able to do that for [Ruth] to date.

[65]     The Judge observed that the best solution might not be available to him because “it relies on the adults to do something that they have been unable to do ... to date.”

[66]     Ms Leech considered the possibility that the Barrs may not relate to the “cultural framework” for Ruth and she was asked whether she considered that to be a risk factor if Ruth remained where she is.  She said:

I think it’s difficult for them to actually impart the culture, even though they are making some genuine efforts and they are laudable efforts.  It is difficult because they don’t actually embrace the culture themselves and the sense I have is that they don’t fully understand the culture, they don’t fully understand that importance of relationship and nor do they actually want that relationship with the birth family. So that does present a risk.

members of the group.[39]

[39] Joan Metger and Jacinta Ruru, “Mäori Aspirations and Family Law Policy” Mark Henaghan and Bill Atkin (eds) in Family Law Policy in New Zealand (3rd ed, Lexis Nexis, Wellington, 2007) at 52.

[118]   This simply means that the duty and responsibility is of all, which must include the psychological parents, and caregivers, the Barrs.   And it matters not, from Ruth’s point of view, that they are Päkehä.   They have the responsibility of day-to-day care – which is not to be the subject of interference from the wider group

– and birth parents – so as to become a perceived threat to their role.  But they also have the responsibility to ensure that Ruth be brought up with a knowledge of her cultural heritage as a Mäori, especially language and tikanga, but also and more specifically,  of  the  tribal  history  and  whakapapa  of  her  birth  parents,  and  her heritage.

[119]   I wish to emphasise to the parties that it is not a case of “rewarding” the Barrs or “punishing” Ms Temple and Mr Holborn.   As is often sadly the case in these situations the Court is having to make decisions which cause anguish and pain to some people but are necessary because of the task entrusted to the Courts to seek to advance the welfare and best interests of an infant.

[120]   It follows that the appeal is dismissed as is the application for judicial review.

Costs

[121]   I am advised that Ms Temple and Mr Holborn are legally aided.  The Barrs are not.  In those circumstances no order for costs in the appeal proceedings can be made against the appellant unless the Court is satisfied that there are exceptional circumstances.  That is not the case here.  However, in respect of the judicial review proceedings Ms Le Page on behalf of the Barrs has sought costs, and on a solicitor/client basis, because, she submits, her clients have been put to additional significant expense in having to resist the application for judicial review through the filing of the statement of defence, preparation and argument.  She submits that this was an unnecessary burden placed upon them, being in modest financial circumstances,  where  Ms  Temple  had  the  freedom  to  bring  these  separate proceedings without fear of any costs sanction.

[122]   I accept that submission, because in my view the judicial review proceeding was misguided.   In terms of s 41 of the Legal Services Act costs of a successful opponent of an aided person may be awarded in the sense of being fixed so that a party to proceedings who is prejudiced by the operation of law preventing costs being awarded personally against the other party, may apply to the Agency for payment of the costs which the claimant party would have been entitled to if the law had not prevented the costs award against the aided person.   In considering such application relevant factors of the conduct of the parties, the Court’s findings and the hardship that would be caused to an applicant if costs were not paid by the Agency.

[123]   Ms Le Page’s application is well founded.  I agree that this is an appropriate case for the Court to make an order under s 41, but only in respect of the judicial review proceedings which were meritless.  The Barrs have been put to unnecessary additional expense and indemnity costs would have been awarded but for the operation of s 40.  Accordingly, the order that I make is that the Barrs would have been entitled as against the aided party Ms Temple but for the operation of s 40 of the Legal Services Act 2000 to their reasonable solicitor/client costs and expenses and disbursements incurred in defending the judicial review application.  If counsel are not able to agree on the extent of those costs they may submit memoranda.

J W Gendall J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for Appellant/Plaintiff

Grigg & Le Page, Lower Hutt for First Respondents
Upper Hutt Law, Upper Hutt for Second Respondent