V JACOBS AND THE CHIEF EXECUTIVE OF ORANGA TAMARIKI and S TYLER s
[2024] NZHC 2985
•14 October 2024
NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-000082
[2024] NZHC 2985
UNDER the Oranga Tamariki Act 1989 IN THE MATTER OF
an appeal against a decision of the Family Court at Manukau dated 14 November 2022
BETWEEN
V JACOBS
Appellant
AND
THE CHIEF EXECUTIVE OF ORANGA TAMARIKI and
S TYLER
Respondents
Hearing: 12 June 2024 Appearances:
Appellant in Person
A Lyne and H Eom for the Respondents
V Curac and A Motuliki as Lawyer for ChildJudgment:
14 October 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 14 October 2024 at 4 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
[JACOBS] v ORANGA TAMARIKI [2024] NZHC 2985 [14 October 2024]
TABLE OF CONTENTS
Introduction [1]
Summary of respondents’ position [8]
Participation of lawyer for the children [13]
Further evidence on appeal [15]
Preliminary observations [21]
Background [24]
Proceeding history [45]
Events after judgments [79]
Family Court decisions under appeal [83] First (reserved) decision of 21 September 2022 [83] Second decision of 14 November 2022 – Disposition Decision [102]
Grounds of appeal [106]
Children’s views [108]
Approach on appeal [111]
Statutory framework [116]
First Issue – Did the Family Court Judge err in her application of the statutory framework? [130]
Second Issue – Did the Judge rely on incorrect or false evidence to reach wrong conclusions [144]
Finding as to Ms Tyler’s mental state [144]
Challenge to findings in respect of Oranga Tamariki’s intervention [154]
Third Issue – procedural unfairness [178]
Fourth Issue – access orders [186]
Result [188]
Postscript [190]
Introduction
[1] The care and wellbeing of two young children are at the heart of this appeal against two decisions of the Family Court at Manukau. H, born in December 2012 is now aged 11 years. Her sister O, born in February 2017 is now aged seven years. They are the subject of orders appointing the Chief Executive of Oranga Tamariki (Chief Executive) as a guardian in addition to their parents and granting custody in favour of the Chief Executive. They were removed from the care of their mother, whom I refer to as Ms Tyler.1 After a period placed with non-kin caregivers they are now living with their maternal aunt, Ms White, in another city some distance away. As at the time of hearing of the appeal, their mother, father and grandmother had only indirect contact with the children and no access – those arrangements being subject to the Chief Executive’s approval.
[2] The appellant is the children’s maternal grandmother, Ms Jacobs, who had taken responsibility for the day-to-day care of the children in the period before Oranga Tamariki’s intervention. The first (reserved) decision of Judge S Otene under appeal followed a three-day evidential hearing and was delivered on 21 September 2022 (Substantive Decision).2 The Judge found that the children were in need of care and protection within the meaning of s 83 of the Oranga Tamariki Act 1989 (the Act) and dismissed Ms Jacobs’ applications for parenting and guardianship orders. She also dismissed Ms Jacobs’ application for an access order.3
[3] The second decision under appeal was delivered orally by Judge Otene on 14 November 2022 (Disposition Decision). It framed, among other things, the final custody and guardianship orders in favour of the Chief Executive.4
[4] Although represented by counsel for the substantive hearing in the Family Court, Ms Jacobs represented herself at the disposition hearing and on appeal. She advanced multiple grounds of appeal dispersed across various notices of appeal and memoranda filed. I intend no disrespect to Ms Jacobs when I say that, at times, it
1 I have adopted fictitious names for all parties and the children to protect their privacy.
2 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler] [2022] NZFC 9364.
3 Oranga Tamariki Act, s 121.
4 Chief Executive of Oranga Tamariki — Ministry for Children v [Q] [2022] NZFC 11860.
became difficult to discern which grounds were still being pursued. As best I can, however, I have distilled the grounds into four broad categories:
(a)Ground 1 – Incorrect application of the statutory provisions in the Act.
(b)Ground 2 – Reliance on false and/or incorrect evidence to reach wrong conclusions.
(c)Ground 3 – Procedural unfairness at the substantive hearing.
(d)Ground 4 – Erroneous conclusion that access orders be refused and contact arrangements instead be determined by Chief Executive.
[5] The primary relief Ms Jacobs seeks is an order quashing the existing care and protection orders, and granting day-to day-care and additional guardianship orders in her favour. In the alternative, she seeks that access be reinstated so that she can visit the children. She also seeks other relief such as compensation in respect of matters occurring after the judgments under appeal.
[6] There is a short answer to the compensation claim. As I explained to Ms Jacobs at the hearing, it is not possible to deal with those claims on an appeal because they fall outside this Court’s appellate jurisdiction.5 There is no authority in s 341 of the Act or any other basis to determine a claim for compensation within an appeal because an appeal is focused on the identification of error in the decisions under appeal.
[7]Accordingly, I put Ms Jacobs’ compensation claim to one side.6
5 Ms Jacobs seeks compensation of $90 million, destruction of documents held by the Courts, Police and Oranga Tamariki, a written apology and termination of the employment of persons involved in the removal of the children from the care of her and her daughter.
6 I have not overlooked r 20.19(1)(a) and 20.19(1)(c) of the High Court Rules 2016 which provides that in determining an appeal the court may make any decision it thinks should have been made or make any order the court thinks just, including any order as to costs. However, a claim for compensation had not been made before the Family Court (and could not be) and raises different issues to those which were before that Court along with having a different jurisdictional basis.
Summary of respondents’ position
[8] A litigation guardian, M, was appointed for Ms Tyler for this appeal and for the ongoing matters in the Family Court.
[9] Ms Tyler was originally an appellant, along with her mother. The parties (including lawyer for the children) filed a joint memorandum dated 9 May 2024 addressing the issue of Ms Tyler’s participation in the appeal. The joint memorandum recorded that Ms Tyler did not have capacity to file an appeal nor participate in the appeal without a litigation guardian. The appellants sought a direction removing Ms Tyler as an appellant and adding her as a respondent for the purposes of the appeal.
[10] The litigation guardian, in a subsequent memorandum, advised the Court through counsel that she intended to take a neutral position on the appeal.
[11] The children’s father [Q] also took no steps in the appeal. His position in the Family Court was that the children should be placed with Ms Jacobs and that he have contact with them.
[12] The Chief Executive opposes the appeal. He argues that there is no evidence supporting the contention that Oranga Tamariki provided false or incorrect evidence; the Family Court Judge applied the provisions of the Act correctly, her conclusions on the evidence were open to her to make and the hearing was conducted fairly. In sum, his position is that Ms Jacobs does not identify any error of law or fact.
Participation of lawyer for the children
[13] Lawyer for the children, Ms Curac also opposes the appeal. She was the children’s lawyer both in the Family Court proceedings and on appeal.
[14] Ms Jacobs raised concerns at the outset about the continued engagement of Ms Curac as lawyer for the children in the appeal. Although one of the grounds of the appeal includes a complaint about her conduct at trial, I declined to restrict Ms Curac’s involvement at the appeal for three reasons. First, that ground of appeal appeared hopeless at least on a preliminary assessment. Secondly, the children’s interests are
paramount and best served by continuity of representation at this stage of the proceeding. Thirdly, this is not the correct forum to examine conduct of the appointed lawyer for the children.
Further evidence on appeal
[15] Ms Jacobs seeks to file further evidence on appeal. This is an affidavit dated 27 November 2023 with exhibits including a video file, photographs, a report of concern, and other material. Additionally, there are two memoranda dated 8 April and 10 May 2024 which include factual material.
[16] Permission (leave) is required before further evidence may be adduced on an appeal.7 Permission will be given if there are special reasons. The overarching test is whether it is in the interests of justice to grant permission.
[17] The Chief Executive contends that some of the further evidence has only marginal relevance to the issues on appeal while most is not relevant at all. He says it concerns issues of access/contact arising after the judgments and assertions about the relationship between Ms Jacobs and her other daughter, Ms White (the current caregiver of the children) or recent contact between the children and a family member of concern. Despite this view, the Chief Executive takes a pragmatic approach, does not formally oppose its admission, and abides the decision of the Court as to whether to grant leave.
[18] Ms Jacobs’ affidavit of 27 November 2023 is best described as a litany of complaints against Oranga Tamariki, its care of the children since they were uplifted, the lack of consultation about the children’s needs and the absence of regular reporting, along with strident objections to the processes of the Family Court.
[19] I do not doubt Ms Jacobs’ genuine despair at the present situation but most of the matters canvassed do not address the issues properly before this Court on an appeal from the Family Court. There are two exceptions. Material related to the medical records of the two children showing the pattern of medical attendance whilst in the
7 High Court Rules 2016, r 20.16.
care of their mother and grandmother are relevant. There are also clarifications around Ms Jacobs’ visit to the children after they were taken to live with their aunt. These are both matters on which Judge Otene made factual findings. I permit reliance on that further material along with the notes of evidence from a (separate) criminal trial relating to alleged assaults against the children.
[20] The two memoranda pursue the same or similar themes, along with a complaint about access to the children by a relative and “unvetted” male after the judgments were delivered. The concern is that the relative has had contact with the children despite a sexual offending history and despite Ms White informing Oranga Tamariki that she had cut off contact with that family member. There is no clear corroborative evidence of when the indirect “online” contact occurred; whether it was before or after contact was said to have been cut off. Nonetheless, this is concerning. These are new matters outside the jurisdiction of this appeal, but which should be urgently addressed, if not already. I would expect that Oranga Tamariki has investigated the allegations and ensured guardrails have been put in place given the seriousness of the claims.
Preliminary observations
[21] I observe that many of the issues in this appeal arise from Ms Jacobs’ understandable distress at the separation from her grandchildren but also her overarching distrust of Oranga Tamariki because of her own personal history with Child, Youth and Family services. This has not only tended to obscure the real issues before this Court, causing Ms Jacobs to misinterpret aspects of the material and the judgments, but has likely impeded her efforts to have proper contact with the children. In that regard, it seems obvious that a reset by all is necessary in the interests of the children.
[22] A couple of examples suffice by way of illustration. Ms Jacobs asserts that Oranga Tamariki’s own file notes confirm that the children were removed from their aunt’s home and placed with non-kin carers because their aunt smacked them. However, there is no such statement in the Oranga Tamariki material that Ms Jacobs places before the Court. The file notes which Ms Jacobs annexes acknowledges O’s allegation of the smacking (which was also disclosed to a respite care worker) but does
not state that this was the reason for placing the children elsewhere. There is a file note of a telephone conversation between Ms Jacobs and the case worker on 25 January 2022 in which Ms Jacobs complained that the girls disclosed that their aunt smacks them. The case worker’s file note records that she told Ms Jacobs that the “girls’ behaviours have become too much and the girls will be moving placement.” There is a second contact visit note in which the contact supervisor observed that both girls told Ms Jacobs that their aunt smacks them. But there is no record in the material before this Court stating unequivocally that the girls were removed because their aunt physically disciplined them.
[23] Ms Jacobs also takes umbrage at Judge Otene’s description of her “muted” evidence in relation to her daughter’s difficulty in caring for the girls.8 Ms Jacobs understands this to mean that the Judge was closing to eyes to her evidence. In fact, Judge Otene was highlighting her impression that Ms Jacobs minimised her daughter’s difficulties when she gave evidence which was not consistent with steps she herself took to report her concerns in that regard to Oranga Tamariki.
Background
[24] The breadth of issues before the Court means it is necessary to set out the protracted history between Ms Tyler, Ms Jacobs and Oranga Tamariki, along with the path that this proceeding has taken in the Family Court.
[25] I pause to note that many of the factual matters set out in the evidence of Oranga Tamariki case workers and the judgments under appeal were contested by Ms Jacobs as wrong or misleading.
[26] Ms Jacobs has two children, Ms Tyler (mother of the children) and Ms White (maternal aunt of the children). Both are now adults. Oranga Tamariki had previous involvement with Ms Tyler and Ms White when they were young and in Ms Jacobs’ sole care. An affidavit filed in the Family Court by an Oranga Tamariki social worker gave evidence of their reported lengthy absences from school and reports of concern relating to family violence. In January 2009 Ms Tyler left home. Oranga Tamariki’s
8 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler], above n 2, at [51].
perspective is that Ms Jacobs demanded this due to “behavioural issues”. On 6 June 2009, Ms Tyler made a formal statement to police alleging assault by Ms Jacobs – one of many occasions where Ms Tyler had disclosed assaults. There was corroboration from third parties who witnessed some abusive behaviour.
[27] The Chief Executive’s predecessor removed Ms White from Ms Jacobs’ care in June 2009 following a lengthy period of non-attendance at school and to address concerns of physical and psychological abuse.
[28] In September 2010, Ms Jacobs was found guilty by a jury of two assaults with a weapon and single common assault of Ms Tyler.
[29] As noted, Ms Tyler’s children, H and O, were born in 2012 and 2017. The children’s father had limited involvement in the care of the children. Ms Jacobs was closely involved as Ms Tyler tenanted the house neighbouring Ms Jacobs’ home. There is cogent evidence indicating that Ms Jacobs became primarily responsible for the children’s care in the period before Oranga Tamariki’s intervention and that throughout 2020, until the children went into Ms White’s care, they were in fact living with Ms Jacobs rather than their mother.
[30] There are voluminous medical reports in respect of both children noting various issues and involvement with health care professionals. O has developmental delay, paroxysmal or seizure events and sight difficulties in one eye due to congenital right third nerve palsy. H has expressive and receptive speech delays, inattention and hyperactivity, along with learning and social interaction difficulties. Attendance at school for H was poor prior to uplift. Her midyear report at the end of term one in 2020 recorded attendance at 49 per cent, term two at 69 per cent and overall progress was noted by teachers to be “of concern”.
[31]Oranga Tamariki interventions in respect of H and O began in 2021.
[32] A public health nurse with the Auckland District Health Board who was tasked with a mental health assessment of Ms Tyler, made a report of concern to Oranga Tamariki on 12 February 2021. That report concerned Ms Tyler’s refusal (said to be
encouraged by Ms Jacobs) to engage with the mental health services, and observed lack of interaction with the children. The report was second hand, relying on information from a colleague who, along with a clinical practitioner had conducted a home visit for the purposes of undertaking a mental health assessment on 10 February 2021. The report suggested that that Ms Jacobs lacked insight into the extent of deterioration of her daughter’s mental health issues, had power and control over her and had taken over the parental role for H and O.
[33] The observations of the mental health team following that home visit to Ms Jacobs and Ms Tyler recorded that it had been Ms Tyler’s sister, Ms White, who had initially contacted Mental Health Services to raise concerns about her sisters “odd behaviour” and “poor hygiene”. She had expressed concerns about the welfare of H and O. The clinical report recorded that Ms Tyler was presenting with “negative” psychotic symptoms. It was also reported that treatment of these particular symptoms may result in an improvement in her function and ability to respond to her children’s care and needs.
[34] Some historical information was also provided about Ms Tyler’s previous referral to mental health services as a teenager and recorded concerns by health providers about her cognition and slow speech. The report noted that Ms Tyler’s abnormal state of mind seriously “diminishes her capacity to take care of herself” and “[she] cannot look after the care of her children alone” and that “there are differing opinions about what the family needs from both [Ms Jacobs] and [Ms White]”.
[35] On 15 February 2021, Ms Tyler was discharged from Mental Health Services. Oranga Tamariki contend this was due to lack of engagement on Ms Tyler’s part, although there is limited information in that regard before the Court other than what is documented in the 12 February 2021 Oranga Tamariki report of concern.
[36] However, Oranga Tamariki received a second report about Ms Tyler on 8 June 2021 following an assessment undertaken by the Psychiatric Registrar of the Urgent Response Mental Health Service at the Auckland District Health Board (ADHB). The Registrar concluded that Ms Tyler did not meet the threshold for compulsory admission under the Mental Health Act but was likely suffering from a
mental disorder rendering it unlikely that she would be able to care for the children unaided. Ms Tyler confirmed to the Registrar that the children were primarily in the care of her mother, who “has a history of emotional and physical abuse of [Ms Tyler]”. There is no clear indication that the Registrar made any corroborative inquiries although the report notes that she interrogated the Mental Health clinical notes system.
[37] On 15 June 2021, a preschool attended by O notified Oranga Tamariki that Ms Tyler looked unwell, under the influence of drugs and was shouting at the children. Oranga Tamariki attempted to arrange a family meeting without success. Only Ms White attended the meeting (on 17 June 2021) from the family so it could not proceed.
[38] On 23 June 2021, Oranga Tamariki appointed social workers called on Ms Tyler’s home without notice to find out why she and her mother had not attended the family meeting. The social workers observed that Ms Jacobs put her hand over O’s mouth when she went to speak and told Ms Tyler not to talk to the social workers. Ms Jacobs’ recall of this visit is completely different.
[39] On 5 August 2021, the assigned Oranga Tamariki social worker, Ms Harding, was contacted by Ms White who at that stage was caring for H. Ms White advised the Ms Harding that H had disclosed abuse by her mother. Ms Harding, along with another social worker, visited Ms White and H. Initially H did not want to talk to them, telling the social workers that she was not allowed to talk to them “because my nana [Ms Jacobs] has not approved of you” but later said that “me and [O] are good at keeping secrets and we will never tell.”
[40] The next day, Ms Harding, and her supervisor visited O at her preschool. O disclosed that her mother was mean to her and hurt her. Among other things, she apparently said that that she wanted to be at her aunt’s home. That led the social workers to visit Ms Tyler. They were not invited in. Initial attempts by Ms Harding to arrange an urgent meeting were met with hostility on the part of Ms Jacobs. Ms Jacobs again puts a different complexion on matters and suggests that the problem was the relationship with Ms Harding. The Oranga Tamariki supervisor however managed to discuss a safety plan with Ms Jacobs so that O could join her sister at her
aunt’s home. Ms Jacobs agreed to this pending a police investigation, and took O to Ms White’s home.
[41] Oranga Tamariki say they advised Ms Jacobs that she was not to have contact with the girls while in their aunt’s care pending a police investigation. Ms Jacobs denies that she was told this. Her understanding was that she was permitted to see the girls but not have them live with her because of her proximity to their mother next door.
[42] The children were interviewed by police.9 O described her mother choking her with her hands around her neck and said that her mother had thrown her off the deck. She also reported instances of her mother hitting and swearing at her. H said that her mother had pushed, punched, hit and swore at her and her sister. At a later date she also reported that Ms Jacobs had punched their mother resulting in bleeding and a “fat eye” to Ms Tyler.10
[43] On 11 August 2021 Ms Tyler was charged with assault against both children and strangulation of O. She was bailed with a condition not to have contact with the children.
[44] On 20 August 2021, Ms White rang Ms Harding to say that Ms Jacobs was at her home. Ms White also called the police. Police, in communication with Ms Harding, acted to make sure that Ms Jacobs could not leave the house with the children should she wish to do so. The facts around this visit are hotly contested by Ms Jacobs who maintains that she intended only to leave gift parcels at the door of the home but was alarmed to find the children apparently unsupervised. Oranga Tamariki contend that Ms Jacobs was issued with a trespass notice and a warning for breaching COVID-19 restrictions. She denies this.
9 The interviews were DVD interviews.
10 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler], above n 2 at [37]–[38].
Proceeding history
[45] The Chief Executive commenced proceedings in the Family Court on 26 August 2021. He filed applications for a care and protection order,11 a custody order12, a guardianship order13, and an interim guardianship order14 to enable a “Gateway” assessment for the children. He also filed a without notice application for interim custody and additional guardianship orders pending substantive determination of the various matters now before the Family Court.15
[46] The stated basis for the orders was the risk that Ms Jacobs and/or the children’s father were likely to try to remove the children from Ms White’s home if Oranga Tamariki did not have custody. The application explained that such removal would place the children at risk of serious and immediate harm and likely to witness verbal and physical violence, in addition to rendering them susceptible to intimidation or coercion whilst their mother faced assault charges. The application also sought the appointment of counsel to assist the Court to assess whether a litigation guardian was needed for Ms Tyler given her suspected cognitive impairments.
[47] The Family Court placed all the applications on notice on 27 August 2021. Ms Tyler (at that time self-represented) filed an opposition.16 She denied any attempt to uplift the children herself and explained that it was her mother who went to Ms White’s house, intending only to drop off some items at the door and leave. She also indicated it was Ms White who was responsible for complaints to mental health services despite having no contact with her for over five years. She disputed that there was any need for a custody order or care and protection order and stated that she wished to continue having custody of the children with her mother having day-to-day care.
11 Oranga Tamariki Act 1989, s 68.
12 Section 101.
13 Section 110.
14 Section 110AA.
15 Sections 78 and 110AA respectively.
16 Notice of intention to appear and notice of defence dated 23 September 2021.
[48] In the light of various reports about Ms Tyler’s cognitive difficulties, it is reasonable to infer that Ms Jacobs had either assisted in the preparation of this document or prepared this document on her behalf.
[49] On 6 September 2021 counsel to assist was appointed. She advised the Court that she had been unable to speak with Ms Tyler but had communicated with Ms Tyler’s counsel in the criminal proceedings who had confirmed no issue with her fitness to plead. On the basis that no concerns had been raised about Ms Tyler’s capacity in the criminal proceedings, she concluded that Ms Tyler “may well have the requisite capacity at this time to appreciate the purpose of these proceedings and to understand what is involved/consequences of the decisions that the Court must make.”
[50] With the benefit of hindsight that conclusion was understandable but unfortunate.
[51] On 28 September 2021, the children were medically assessed. Various development issues were identified.
[52]Ms Jacobs was joined as a party to the Family Court proceedings.
[53] On 5 October 2021, Judge P S Ginnen of the Family Court granted interim custody orders under s 78 of the Act in favour of the Chief Executive and additional guardianship orders under s 110AA appointing the Chief Executive as an additional guardian.17
[54] A family group conference was convened on 20 October 2021. No agreement was reached about the care and protection of the children. At that time, lawyer for the children, Ms Curac, filed a memorandum in Court recording that Oranga Tamariki had filed initial plans for the children under ss 186 and 128 of the Act which included:
...a realistic possibility of the girls returning to their mother [Ms Tyler’s] care, provided risks are addressed and change occurs. For the next 6 months Ms Harding proposes [H and O] stay with their Aunt [Ms White], enrol in a local school, attend Gateway Assessment; to meet their ongoing medical and dental needs, attend sports, swimming and dance classes and have supervised contact with their mum, dad and nana when possible.
17 Chief Executive of Oranga Tamariki — Ministry for Children v [Jacobs] [2021] NZFC 9972.
[55] I pause to note that, because of COVID restrictions, Ms Curac had not been able to meet with them, explain her role to them or take their views, so was operating on a “best interests” approach.
[56] A new social worker with Oranga Tamariki, Ms Oates, was assigned to the case in November 2021.
[57] On 10 December 2021 a paediatrician at the ADHB again recorded concerns about the children’s health.
[58] On 13 December 2021 Judge M Southwick KC directed continuation of the s 78 interim custody order and that a 3-day fixture was required as soon as it was available.18
[59] On 22 December 2021, Ms Jacobs filed without notice applications for parenting and additional guardianship orders under the Care of Children Act 2004 (COCA). On 31 December, Judge K Broughton declined to make the orders without notice and instead placed them on notice.
[60] In January 2022 there was supervised contact between Ms Jacobs and the children. The children clearly missed their grandmother. No one disputes this is the case.
[61] On 17 January 2022 lawyer for the children, Ms Curac, met with them at Ms White’s home. She filed a memorandum reporting on that visit in the following terms:
[Ms White] has reported that on return from [contact with their grandmother], the girls behaviours regressed, and [H] in particular was badly affected, as she started episodes of self-harming, while chanting that she wants to die. (A video of one of these episodes was shown to counsel, and has also been viewed by the social worker).
Counsel therefore, does not support any further contact for [Ms Jacobs] with the girls, until therapeutic supports are in place for them.
18 Oranga Tamariki v [Tyler] FC Pukekohe FAM-2021-057-000131, 13 December 2021.
[62] Consequently, and after consultation with senior Oranga Tamariki personnel, Ms Oates suspended contact between Ms Jacobs and the children to allow Gateway assessments to be undertaken and for any required supports resulting from those assessments to be put in place. Ms Jacobs was advised of this decision in late January 2022.
[63] Around the same time, Ms White decided that she could not continue caring for the girls as she was struggling to meet their complex needs. The children were then moved to non-kin approved foster placement.
[64] On 9 February 2022, Ms Jacobs filed an application seeking regular access to the children pending the hearing of the care and protection concerns.
[65] Ms Tyler apparently did not consent to the children undertaking Gateway Assessments when contacted by Oranga Tamariki on 3 March 2022.
[66] On 2 May 2022, Oranga Tamariki filed a second without notice application for a care or protection order recommending an additional order for final sole guardianship for the specific purpose of medical and therapeutic interventions.19
[67] Also in May, H and O were taken out of their foster placement and placed with two caregivers specialising in “trauma informed specialist care”. At that time, the caregivers were willing to provide long term care for both children.
[68] Ms Tyler went to trial before a jury in June 2022. The trial was abandoned after H refused to answer questions. O’s evidence, given before H was called, was also inconsistent with what she told police in her DVD interview. When asked whether she had told police the truth, O said that she had “accidentally lied”.20 I note that this is consistent with the evidence that Ms Jacobs gave in the Family Court about why the trial was not completed.
19 Oranga Tamariki Act, ss 110(2)(a) and 112.
20 Transcript of notes of evidence from trial of [Ms Tyler]. These notes were part of the new material that Ms Jacobs sought to adduce. I accept that they are fresh, in the sense they were not available to the Family Court. They are also reliable and cogent. I grant leave accordingly.
[69]The charges have since been withdrawn.
[70] Ms Curac met with the children again in June 2022. Both H and O expressed they wanted to see their grandmother but also were positive about their current placement.
[71] On 25 July 2022, Judge Otene granted interim orders appointing the Chief Executive as the children’s additional guardian and sole guardian for specified medical and therapeutic purposes. The interim order was for a maximum duration of six months and was to lapse on 24 January 2023.
[72] Gateway assessment reports for the children were finalised on 15 August 2022 covering all aspects of H and O’s wellbeing. Those reports are not before this Court but are briefly summarised in a memorandum filed in the Family Court by the lawyer for the children.21 Sadly, those reports record findings of post-traumatic stress disorder in both children, evidence of deliberate acts of self-harm, (albeit reduced since placement in non-kin care) and an emerging eating disorder for H. The assessments of O also record global developmental delay, speech and language delays and that suggest that she is “disinhibited social engagement disordered”.22
[73] Although the reports were prepared prior to the Family Court evidential hearing, they were not made available to Judge Otene because of “processes” required to complete or finalise them.23
[74] The three-day hearing took place in the Family Court between 24 and 26 August 2022. Ms Jacobs and Ms Tyler were separately represented by counsel. The children’s father appeared in person. Ms Curac, lawyer for the children also appeared.
21 Memorandum of lawyer for the child for initial plan and report, dated 10 November 2022
22 This is explained as “an attachment condition that present with a lack of social boundaries, no fear of strangers or any hesitation in going with them, excessively familiar physical and verbal behaviour towards unfamiliar adults”.
23 The assessment reports tend to support the Judge’s own conclusions on the welfare of the children.
[75] The Chief Executive called Ms White and the two Oranga Tamariki case workers, Ms Harding and Ms Oates. Ms Tyler gave evidence on her own behalf, as did Ms Jacobs.
[76] On 21 September 2022, Judge Otene made the findings which are the subject of this appeal.24
[77] On 7 November 2022, Oranga Tamariki filed the social report and plan with the Court.25 For the first time, it assessed that there was no realistic possibility of return of the children to Ms Jacobs, their mother or their father. The lawyer for the children interviewed the children. She filed a report with the Court recommending that all the existing orders made under ss 78, 110 and 110AA of the Act be discharged and a new s 101 custody order be made in favour of the Chief Executive, alongside an order appointing the Chief Executive as an additional guardian with a review to be undertaken in the next three months.
[78] On 14 November 2022 Judge Otene made the final disposition orders regarding the children.26 These orders are also subject of this appeal.
Events after judgments
[79]Ms Jacobs filed this appeal on 18 January 2023.
[80] In February 2023 the case came back before the Family Court to review the plan for the children. At that time the children were still in the care of professional care givers. Judge Southwick noted that no application for a stay of the Family Court decision had been made nor any application to discharge the orders made by Judge Otene. She also noted the report from lawyer for the children outlining the children’s excellent progress since being moved into the care of professional caregivers and support by counsellors.
24 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler] above n 2.
25 Oranga Tamariki Act 1989, s 186.
26 Chief Executive of Oranga Tamariki — Ministry for Children v [Q] above n 4.
[81] Judge Southwick recorded difficulties for both parents and that Ms Tyler’s lawyer had indicated that communication issues were impeding the taking of instructions. The Judge deferred review of the plan and made directions requiring the appointment of a lawyer to assist the Court to report whether litigation guardians were required for Ms Tyler and the children’s father.
[82] The children were placed back into the care of their aunt, Ms White, in December 2023 after their long-term carers were no longer able to look after them. By this time, their aunt had moved to another city some distance away. The children have remained with their aunt as at the date of the appeal hearing.
Family Court decisions under appeal
First (reserved) decision of 21 September 2022
[83]The substantive judgment determined the following applications:
(a)Chief Executive’s application for a care or protection order, his appointment as the children’s sole guardian or final orders for their custody, alternatively his appointment as their additional guardian and maintenance of the interim sole guardianship order until its lapse on 24 January 2023.
(b)Ms Jacobs’s application for a parenting order for the children’s day-to- day care and appointment as their guardian, along with her application for access.
[84]Judge Otene distilled the issues before her as:
(a)whether the children were in need of care and protection;
(b)whether orders should be made placing the children in the custody and/or additional guardianship of the Chief Executive or their grandmother (Ms Jacobs); and
(c)if so, in whose favour those orders should be made.
[85] After narrating the procedural history, Judge Otene turned to the legal framework including the intersection between the Act and COCA. She noted that this required that the Court first determine the applications made by the Chief Executive, before determining Ms Jacob’s application.27
[86] She identified the three prerequisites to be met before orders under s 83 of the Act may be made: satisfaction that a child is in need of care or protection28; a qualifying family group conference having been held29; and satisfaction that the care and protection need cannot be practicably or appropriately met by any other means.30
[87] Judge Otene then turned to the factual matrix. She noted that much of the evidence was susceptible to admissibility challenge on various grounds. Rather than analyse the evidence through that lens, she instead proceeded on the pragmatic basis that it was proffered by agreement of the parties and therefore could be relied on subject to its credibility and reliability.31
[88] She noted that Ms Jacobs was the sole parent to both her daughters from the time that Ms White was a few months’ old and that there were periods in which neither of her daughters were in her care during their adolescence. She referred to Ms Jacobs’ previous convictions and that, at the age of almost 14, Ms White was removed from Ms Jacobs’ care and placed in the care of the Chief Executive’s predecessor.
[89] Turning to the current situation, she recorded that Ms Jacobs had visited the children after they went into Ms White’s care, contrary to the Chief Executive’s sanction against contact.32 I pause to note that the evidence established that some of those visits had been at the invitation of Ms White, rather than on Ms Jacobs’ initiative.
27 Section 120 of the Oranga Tamariki Act 1989 restricts the Court from making orders under the Care of Children Act 2004 in respect of guardianship or about the day-to-day care of and contact with children if children are subject to orders under ss 78 (interim custody), 101 (final custody) or 110 (sole or additional guardianship) of the Oranga Tamariki Act.
28 Oranga Tamariki Act, section 83(1).
29 Section 72(1).
30 Section 73(1).
31 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler] above n 2, at [27].
32 At [38].
[90] After noting the advice of lawyer for the children that at her most recent meeting with the children they had been distressed by the circumstances of their mother’s impending criminal trial, Judge Otene considered that although further time had passed, a judicial meeting with the children would not be appropriate given the primary task before her.33 She also recorded that both children were positive about their current placement but both wanted to see their grandmother.
[91] Judge Otene determined that the totality of the evidence supported the conclusion that Ms Tyler had a mental health condition rendering her unable to provide adequate physical and emotional care for the children.34 She also found that Ms Jacobs had impeded efforts by mental health services to effectively engage with her daughter to comprehensively assess her mental health or provide assistance.
[92] On the question of whether the children had suffered physical abuse or exposure to violence, Judge Otene noted the developmental concerns expressed about the children from medical and education personnel, including speech delay, inattention and learning difficulties and for one of the children, developmental delay.35 She was satisfied that the broad, consistent narrative from both children was that Ms Tyler had been physically and verbally abusive to them and that their grandmother intervened protectively, resulting in abusive intersections between Ms Jacob and Ms Tyler.36 Given that degree of broad consistency, she discounted as implausible Ms Jacobs’ contention that, within a short period of time staying with their aunt, they had been influenced to concoct allegations of abuse. She also noted that O had told the social worker, prior to staying with her aunt, that her mother was mean and pushed her to the ground.
[93] As to whether the children had experienced neglect, the principal concern was H’s poor attendance record at school. Judge Otene found that there was no coherent reason for H’s poor attendance record.37
33 At [40].
34 At [52].
35 At [55].
36 At [58].
37 At [60].
[94] She also accepted the evidence from Ms White about the condition of the children when they had come into her care. Ms White’s evidence was that they were unkempt, had irritated skin, worms and neither had age-appropriate toileting skills. Ms White also described Ms Jacobs’ home as being unhygienic and hazardous when she was there approximately a year before the children came into her care. Judge Otene found that the social worker’s evidence recounting the similar observations of a police officer regarding the state of the house being unsuitable for children, although hearsay, was reliable and corroborative. She rejected as irrelevant photographs of the home in presentable condition which Ms Jacobs produced because they had been obtained for Ms Tyler’s defence of the charges she faced, at a time when the children were no longer living in the home.38
[95] Judge Otene expressly declined to make any finding that the children were psychologically traumatised given the absence of expert opinion.39 However, she concluded that the children’s health and development needs had not been met during the time they were with their mother and H’s education needs were also unmet. These deficits had become chronic in the 18 months before the children were removed to the custody of the Chief Executive, correlating with Ms Tyler’s deteriorating mental health and Ms Jacobs’ assumption of primary responsibility for the children.40
[96] In the light of all these findings, Judge Otene was therefore satisfied that the children have suffered and are likely to suffer serious harm as to be in need of care and protection.
[97]Her reasoning is captured in the following paragraph:
[67] Neither [Ms Tyler] nor [Ms Jacobs] have adequately cared for or protected the children in alignment with [the principles in s 5(1)(b)(i)(B), s 5(1)(b)(ii) and s 5(1)(b)(iii)]. There is no evidence that if the children were returned to the care of either, that the harm the children suffered would neither continue or be repeated as to weigh against the making of a care or protection order. Absent acceptance by [Ms Jacobs] of the harm that the children have suffered and her support to enable thorough assessment of [Ms Tyler’s] mental health and to access assistance if it is recommended, it is likely that the harm would be repeated. [Ms White] has unfortunately been extended beyond her
38 At [61]–[62].
39 Judge Otene noted that reports from a pediatrician and psychologist were to be available in the near future as part of the Gateway programme.
40 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler] above n 2, at [64].
practical and emotional capacity to care for the children. In these circumstances, the children’s well-being and best interests weigh towards making orders in favour of the Chief Executive to secure the children’s placement and to meet their broader needs.
[98] Judge Otene went on to identify the most material principles in respect of what type of orders to make:
(a)Recognition of the children’s place within their family, maintaining and strengthening relationships between the children and their family – s 5(1)(c)(iv), (v), (vi).
(b)Return of the children to their family if possible – s 13(2)(h).
(c)Placement together where practicable – s 13(2)(i)(iii)(D).
(d)Special protection and assistance to address the children’s particular needs and to preserve their connections with family and siblings – s 13(2)(i)(iii)(D).
[99] She considered those principles weighed in favour of placing the children in the final custody of the Chief Executive and appointing the Chief Executive as the children’s guardian in addition to their parents and for management of their access with family members by way of his custodial power.41 She declined to make an access order as sought by Ms Jacobs because of, among other things, the complexity of the family dynamics and Ms Jacob’s disposition. She suggested that access needed to be flexible and responsive to the children’s progress, something an access order would not provide.42 However, this was clearly an interim indication as Judge Otene recognised that a longer-term access arrangement could be settled once the impact of harm on the children was better understood.
[100] Signalling her intent to make a final custody order and appoint the Chief Executive as an additional guardian, Judge Otene then set out broad, non-exhaustive expectations of a care plan to be prepared by Oranga Tamariki which
41 At [69].
42 At [70].
was to include maintenance of the current (non-kin caregiver) placement of the children, along with arrangements for the children’s contact with their parents, their aunt, Ms White, and their grandmother, Ms Jacobs.
[101]The orders and directions made were:
(a)Adjournment to a further hearing for the making of disposition orders with the s 78 interim custody order continuing in that period.
(b)Preparation of a (care) plan by Oranga Tamariki in respect of a final custody order by a stipulated date.
(c)An invitation to Ms Tyler that she consent to the making of an order to attend for a psychiatric examination.
(d)Dismissal of Ms Jacobs’ application for an access order.
(e)Dismissal of Ms Jacobs’ applications for a parenting order and to be appointed as the children’s guardian.
Second decision of 14 November 2022 – Disposition Decision
[102] The disposition hearing took place on 14 November 2022. By this time, Ms Jacobs was no longer represented.
[103] Oranga Tamariki had provided a care plan (albeit late) which Judge Otene considered deficient in that it did not address access between the children and their maternal aunt, Ms White43, nor details of any enquiries undertaken to establish their connection with their paternal family.44 She recorded that Oranga Tamariki provided inadequate explanation for the delay in engagement with the paternal family and neither Ms Tyler, Ms Jacobs, nor the children’s father were happy with the contact proposals in the plan which were limited to indirect contact by card
43 In a memorandum dated 11 November 2022, counsel for the Chief Executive recorded there was a mistake with the plan in that access between the children and Ms White occurred indirectly (as arranged between Ms White and the caregivers) and was supported by Oranga Tamariki.
44 Chief Executive of Oranga Tamariki — Ministry for Children v [Q] above n 4, at [3].
and letters. However, given that broader information, including the professional opinions of those who had prepared the Gateway assessment along with the advice of the lawyer for the children, supported the plan, Judge Otene accepted it on that basis.
[104] She recorded the instruction of Ms Tyler’s counsel that Ms Tyler was unwilling to undertake any psychological assessment.
[105]The Judge made the following orders:
(a)receiving the plan dated 7 November 2022 as compliant;
(b)discharging the s 78 interim custody order;
(c)a custody order under s 101 in favour of the Chief Executive;
(d)a guardianship order under s110(2)(b), appointing the Chief Executive as the children’s guardian in addition to the parents;
(e)directing a review of the plan for the custody order and that a report and revised plan be furnished no later than 14 February 2023;
(f)directing a judicial conference to consider that report and revised plan.
Grounds of appeal
[106] As noted, Ms Jacobs has filed multiple amended notices of appeal.45 There can be no doubt from the documents filed that Ms Jacobs feels strongly that the decisions at issue were wrongly decided. The reasons why she considers this to be the case are more difficult to discern other than a general disagreement with the outcome and a challenge to the factual findings made by the Judge.
[107] As explained in paragraph [4] I group the grounds of appeal together into four broad categories where I consider they relate to aspects of the same question:
45 Notice of appeal signed/dated 14 December 2022; amended notice of appeal signed/dated 16 March 2023; memorandum dated 13 March 2024.
First category – Incorrect application of the Act’s provisions
(a)The Judge incorrectly applied ss 83, 120 of the Act, s 9 of the Evidence Act 2006 and s 12A(4) of the Family Court Act 1980.
Second category – Errors of fact – reliance on incorrect or false evidence to reach wrong conclusions
(b)Oranga Tamariki’s evidence of neglect in relation to the medical and educational needs of the children and abuse, and Ms Tyler’s mental state was false.46
(c)The Judge incorrectly relied on evidence of Oranga Tamariki’s intervention.47
(d)The Judge erred in determining that it was more likely than not that the children had been physically abused and exposed to violence. 48
(e)The Judge erred in determining that the children had no formal education as a ground for making a care and protection order.
(f)The Judge erred in her reliance on medical evidence relating to the children before making a care and protection order.
(g)The Judge’s finding that the care and protection grounds had been satisfied in respect of the children was wrong.
Third category – Procedural errors
(h)Cross-examination of Ms Jacobs by Ms Curac, lawyer for the children, was procedurally unfair.
(i)The Judge erred by failing to order a s 178 report49 prior to the hearing.
46 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler,] above n 2, at [41]–[50].
47 At [34]–[39].
48 At [53]–[55] and [57].
49 Oranga Tamariki Act, s 178.
Fourth category – Access orders
(j)The Judge erred in not granting access orders to Ms Jacobs, Ms Tyler or the children’s father, instead allowing the Chief Executive to determine contact arrangements in the “care plan”.
Children’s views
[108] Ms Curac filed written submissions prior to the appeal hearing in which she supported the submissions made by counsel for Oranga Tamariki and the reasoning of the Family Court.
[109] Ms Curac advised the Court that she had not sought the children’s views on the appeal. She noted the instructive comments of the Court of Appeal in Newton v Family Court at Auckland.50 While the proceedings in that case were under COCA rather than this Act, I agree that the principles expressed remain relevant. The Court of Appeal stated:51
[233] It is neither possible nor appropriate to draw a brightline between substantive decisions, in respect of which a child must have an opportunity to express their views, and procedural matters, where that is not required. We accept the submission of [lawyer for the child] that a more nuanced approach is required which involves the exercise of judgment by a lawyer appointed to represent a child and by the Court. Some procedural decisions may have a significant effect on a child, and it will be appropriate for the child to be informed about the issue and given an opportunity to express views on it.
[110] I accept that in this case it was neither necessary nor appropriate to seek the views of these young children. The nature of the appeal is complex. Their respective understanding and comprehension given their specific, unique needs means that it would not likely be in the wellbeing and best interests of the children to even know of the appeal. This is against the backdrop of having moved out of Auckland to live with their aunt, Ms White, in December 2023.
Approach on appeal
[111]I set out the required approach on an appeal under s 341 of the Act.
50 Newton v Family Court at Auckland [2022] NZCA 207, [2022] 3 NZLR 846.
51 Above, n 50.
[112] This is a general appeal, by way of rehearing.52 It is an appeal from an evaluative assessment of what is in the best interests of the children, taking into account the applicable statutory principles in play.53 However the onus remains on an appellant to identify the respects in which the judgments under appeal are said to be in error and to persuade the appellate court to reach a different view. An appellate court will not intervene if no such error is identified.54
[113] Materially, an appellate court is to take into account any particular advantages enjoyed by the trial court, including its assessment of witnesses and any specialist expertise held by that court. It goes without saying that the Family Court is a specialist court.
[114] This caution resonates in this case because, regarding Ms Jacobs’ evidence, the Judge said:55
[51] I do not find [Ms Jacobs’] evidence probative on this point or indeed generally. She is either unwilling or unable to reflect upon any posited concern about the children except superficially. Her tendency is to instead minimise, reject outright or cast responsibility for the concerns on others and when appropriately tested she was obstructive to the point of refusal to make concession even in the fact of incontrovertible fact. At times she was not a witness of truth.
…
[115]And:
(d) More than that [Ms Jacobs] demonstrated willingness to lie, albeit in a relatively unsophisticated way given that some of her falsehoods are easily defeated by other of her evidence. My impression is that [Ms Jacobs’] reaction in telling untruths is often a mechanism of defensiveness, defiance and avoidance when being challenged, rather than a mechanism of outright deceit. Nevertheless, it renders her general credibility shallow.
…
(e) There was an invective to the nature and tone of some of [Ms Jacobs’] evidence directed indiscriminately to [Ms White], social workers (involved in the current proceedings and with interventions when [Ms Tyler] and [Ms White] were children) and Ms Curac and delivered with an unchecked belligerence. Deep distress in these circumstances is understandable.
52 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
53 Kacem v Bashir [2010] NZSC 112, [2011] 2 NLR 1.
54 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].
55 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler], above n 2.
However, it is clear that [Ms Jacobs] has significant grievance about matters concerning Oranga Tamariki and its predecessors that diverts her from focus upon matters in direct issue for the children and hinders her ability to appropriately regulate her distress even within the formality of the court environment.
Statutory framework
[116]The statutory framework provides context for the decision making at issue.
[117] The purposes of the Act are set out in s 4. They are to promote the wellbeing of children, young persons, and their families, whānau, hapu, iwi, and family groups. Section 4 also sets out the means by which that is to occur. Those means include supporting and protecting children and young persons to prevent them from suffering harm (including harm to their development and wellbeing), abuse, neglect, ill treatment or deprivation or by responding to those things.56 Another relevant means is to assist families, whānau, hapu, iwi, and family groups to prevent their children and young persons from suffering harm, abuse, neglect, ill treatment, or deprivation or by responding to those things.57
[118] Section 4(2) specifically provides that assisting includes developing the capability of those persons or groups to themselves do the things for which assistance is being provided.
[119]Section 4A provides:
4A Well-being and best interests of child or young person
(1)In all matters relating to the administration or application of this Act (other than Parts 4 and 5 and sections 351 to 360), the well-being and best interests of the child or young person are the first and paramount consideration, having regard to the principles set out in sections 5 and 13.
(2)In all matters relating to the administration or application of Parts 4 and 5 and sections 351 to 360, the 4 primary considerations, having regard to the principles set out in sections 5 and 208, are—
(a)the well-being and best interests of the child or young person; and
56 Oranga Tamariki Act 1989, s 4(1)(b)(i).
57 Section 4(1)(c)(i).
(b)the public interest (which includes public safety); and
(c)the interests of any victim; and
(d)the accountability of the child or young person for their behaviour.
[120] Section 5 sets out the principles to be applied in exercise of powers under this Act. It reads:
5 Principles to be applied in exercise of powers under this Act
(1)Any court that, or person who, exercises any power under this Act must be guided by the following principles:
(a)a child or young person must be encouraged and assisted, wherever practicable, to participate in and express their views about any proceeding, process, or decision affecting them, and their views should be taken into account:
(b)the well-being of a child or young person must be at the centre of decision making that affects that child or young person, and, in particular,—
(i)the child’s or young person’s rights (including those rights set out in UNCROC and the United Nations Convention on the Rights of Persons with
Disabilities) must be respected and upheld, and the child or young person must be—
(A)treated with dignity and respect at all times:
(B)protected from harm:
(ii)the impact of harm on the child or young person and the steps to be taken to enable their recovery should be addressed:
(iii)the child’s or young person’s need for a safe, stable, and loving home should be addressed:
(iv)mana tamaiti (tamariki) and the child’s or young person’s well-being should be protected by
recognising their whakapapa and the whanaungatanga responsibilities of their family, whānau, hapū, iwi, and family group:
(v)decisions should be made and implemented promptly and in a time frame appropriate to the age and development of the child or young person:
(vi)a holistic approach should be taken that sees the child or young person as a whole person which includes, but is not limited to, the child’s or young person’s—
(A)developmental potential; and
(B)educational and health needs; and
(C)whakapapa; and
(D)cultural identity; and
(E)gender identity; and
(F)sexual orientation; and
(G)disability (if any); and
(H)age:
(vii)endeavours should be made to obtain, to the extent consistent with the age and development of the child or young person, the support of that child or young person for the exercise or proposed exercise, in
relation to that child or young person, of any power conferred by or under this Act:
(viii)decisions about a child or young person with a disability—
(A)should be made having particular regard to the child’s or young person’s experience of disability and any difficulties or discrimination that may be encountered by the child or young person because of that disability; and
(B)should support the child’s or young person’s full and effective participation in society:
(c)the child’s or young person’s place within their family, whānau, hapū, iwi, and family group should be recognised, and, in particular, it should be recognised that—
(i)the primary responsibility for caring for and nurturing the well-being and development of the child or young person lies with their family, whānau, hapū, iwi, and family group:
(ii)the effect of any decision on the child’s or young person’s relationship with their family, whānau, hapū, iwi, and family group and their links to whakapapa should be considered:
(iii)the child’s or young person’s sense of belonging, whakapapa, and the whanaungatanga responsibilities of their family, whānau, hapū, iwi, and family group should be recognised and respected:
(iv)wherever possible, the relationship between the child or young person and their family, whānau, hapū, iwi, and family group should be maintained and
strengthened:
(v)wherever possible, a child’s or young person’s family, whānau, hapū, iwi, and family group should participate in decisions, and regard should be had to their views:
(vi)endeavours should be made to obtain the support of the parents, guardians, or other persons having the care of the child or young person for the exercise or proposed exercise, in relation to that child or young person, of any power conferred by or under this Act:
(d)the child’s or young person’s place within their community should be recognised, and, in particular,—
(i)how a decision affects the stability of a child or young person (including the stability of their education and the stability of their connections to community and other contacts), and the impact of disruption on this stability should be considered:
(ii)networks of, and supports for, the child or young person and their family, whānau, hapū, iwi, and
family group that are in place before the power is to be exercised should be acknowledged and, where practicable, utilised.
(2)Subsection (1) is subject to section 4A.
[121] Orders of the kind made by the Family Court in this case are made under ss 101(1) and 110(1) of the Act.
[122] Section 101(1) provides that if satisfied that a child or young person is in need of care or protection, the court may make an order placing the child or young person in the custody of certain persons or services, including the Chief Executive or any other person and on such terms as the court thinks fit.
[123] Section 110(1) provides that where a court is satisfied that a child or young person is in need of care or protection it may make an order appointing a guardian. The guardian may include the Chief Executive or any other person.
[124] Section 14(1)(a) of the Act defines that a child is in need of care or protection when they are suffering, or are likely to suffer, serious harm. Serious harm is further
defined to include where a child is being, or is likely to be, abused (whether physically, emotionally, or sexually) deprived, ill-treated, or neglected.58
[125] Other circumstances that may constitute serious harm, or establish the likelihood of serious harm, are where the child’s development or physical or mental or emotional wellbeing is being, or is likely to be, impaired or neglected, and that impairment or neglect is, or is likely to be avoidable; or where the child has been exposed to family violence.59
[126] The likelihood of serious harm means “a real possibility” of harm, on the balance of probabilities.60 The Act specifically provides that serious harm may occur as a result of an incident; two or more incidents that taken on their own would not be serious enough to constitute serious harm, but the cumulative effect of which is serious enough to cause serious harm; or the co-existence of different circumstances.61
[127] Section 83 of the Act sets out what the Court may do on application made under s 68 for a care or protection order. There are statutory pre-requisites before a care or protection order may be made. First, no application for a care or protection order may be made unless a family group conference has been held.62 That family group conference must be in relation to the matter that forms the ground on which the application is made. There are limited exceptions to the requirement that there be such family group conference. Secondly, the Court must be satisfied that the child’s need for care or protection cannot be met by other means.63
[128]Section 73 reads:
73 Court not to make care or protection order unless satisfied that child’s or young person’s need for care or protection cannot be met by other means
(1)The court shall not make a care or protection order (other than an interim order) unless it is satisfied that it is not practicable or appropriate to provide care or protection for the child or young person
58 Oranga Tamariki Act 1989, s 14AA(1)(a)
59 Oranga Tamariki Act 1989, s 14AA(2).
60 Re PT [2012] NZFC 8516 at [106] and [108].
61 Oranga Tamariki Act 1989, s 14AA(3).
62 Section 70.
63 Section 73.
by any other means, including the implementation of any decision, recommendation, or plan made or formulated by a family group conference convened in relation to that child or young person.
(2)In deciding whether or not to make a care or protection order (other than an interim order) on the basis of any of the grounds specified in section 14(1) (a) (i) or (ii) (in the circumstances referred to in section 14AA(1)(a) or (2)(a)), the court shall take into account, among other things, any evidence before the court—
(a)that the kind of harm suffered by the child or young person will neither continue nor be repeated:
(b)that a parent or guardian or other person having the care of the child or young person will be capable of ensuring that the kind of harm suffered by the child or young person will be neither continued nor repeated.
[129] The overarching pre-requisite is that the court must be satisfied that a child is in need of care or protection.64
First Issue – Did the Family Court Judge err in her application of the statutory framework?
[130]Ms Jacobs refers to various statutory provisions under this head of appeal.
[131] She submits that under s 120 of the Act Oranga Tamariki is required to provide a plan for the children every six months, failing which the day-to-day care and additional guardianship of the children falls to her. She clarifies this position by contending that when the non-kin placement fell through in December 2023, the day-to-day care of the children should have fallen back to her.
[132] It is difficult to understand precisely what aspect of the judgments is challenged by this submission.
[133] Judge Otene referred to s 120 of the Act in the first decision to determine the order in which the several applications before the Court should proceed. She noted that if a child is subject to orders under s 78 (interim custody), s 101 (final custody) or s 110 (sole or additional guardianship), then s 120 of the Act restricts the court from making orders under COCA in respect of the guardianship of a child or provision of
64 Section 83(1).
day-to-day care of or contact with that child. She determined, correctly, that the Chief Executive’s application had to be determined first. If his application was declined, then Ms Jacobs’ applications under COCA could be granted provided the grounds were made out.65 However, since the application was not declined, Ms Jacobs’ own application could not be addressed.
[134] Ms Jacobs may be confusing the requirement under s 128 that a court obtain a plan prepared in accordance with ss 129 and 130 before making an order placing any child or young person in the custody of any person under s 101. An order was made at the disposition hearing under s 101 but only after the Judge was satisfied that the plan dated 7 November 2022 from Oranga Tamariki was compliant. She reached this view despite several noted deficiencies.66 Judge Otene noted in the disposition decision that those deficiencies had been addressed after the provision of the report and before she made the disposition orders.67
[135] Ms Jacobs’ criticism may be that Oranga Tamariki has not provided an adequate plan for the children if, for example, the placement with their aunt was to fall through. However, that is not a matter within the ambit of this appeal. More relevantly, s 120 does not have the effect of invalidating a custody or guardianship order where a s 128 plan has not been filed.
[136] Ms Jacobs submits that Judge Otene misapplied s 83 of the Act. I apprehend that the core contention is that the prerequisites to the making of orders on finding that a child or young person is in need of care or protection (and that those concerns cannot be met) were not satisfied. In respect of this contention, Ms Jacobs advances two limbs of challenge.
[137] The first limb is that she contends the family group conference was flawed because it was shut down quickly by Oranga Tamariki. The second limb is a
65 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler], above n 2 at [23].
66 Those deficiencies were failure to address access between the children and their maternal aunt, Ms White, and lack of details of any enquiries undertaken to establish their connection with their paternal family.
67 Chief Executive of Oranga Tamariki — Ministry for Children v [Q], above n 4, at [4].
contention that the evidence she provided shows the children had not suffered any harm in her care.
[138] As to the first limb, there is no evidence about what transpired in the family group conference. Nor could there be. Section 37 of the Act provides that no evidence of any information, statement, or admission disclosed or made in the course of a family group conference is admissible. I pause to note that no one, including Ms Jacobs, raised any concerns about procedural flaws in regard to the family group conference at the hearing before the Family Court.
[139] Relatedly the second limb weaves together with Ms Jacobs’ challenges to the evidential findings of Judge Otene because they both concern the foundational matter of whether the children were in need of care or protection and whether those concerns upon which the decision was based cannot be met. I return to this foundational matter in more detail later in this judgment.
[140] Ms Jacobs submits that Judge Otene erred by dismissing her evidence, incorrectly applying s 9 of the Evidence Act 2006 and s 12A(4) of the Family Court Act 1980.
[141] Section 12A(4) of the Family Court Act provides that the Evidence Act has primacy but the court hearing the proceeding may receive “any evidence, whether or not admissible under the Evidence Act 2006, that the court considers may assist it to determine the proceeding.” Ms Jacobs appears to consider that Judge Otene purported to justify her preference for the evidence of other witnesses over the evidence of Ms Jacobs by wrongly relying on those provisions. However, that mischaracterises the purpose of Judge Otene’s reference to s 9 of the Evidence Act and s 12A(4) of the Family Court Act which was only to make clear that, rather than rule evidence inadmissible, the weight to be given to it would depend on its credibility and reliability.68
68 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler] above n 2, at [25]–[27]. The Judge observed that a great deal of the evidence would, on the application of the rules of evidence, likely to susceptible to admissibility challenge; a situation not unique to this proceeding.
[142] Contrary to Ms Jacobs’ understanding, this was as advantageous to Ms Jacobs as it was to other parties.
[143] It follows that the grounds of appeal relating to purported misapplication of the statutory provisions cannot succeed.
Second Issue – Did the Judge rely on incorrect or false evidence to reach wrong conclusions
Finding as to Ms Tyler’s mental state
[144] Ms Jacobs’ written submissions challenge Judge Otene’s determination as to Ms Tyler’s mental health which was that:69
[52] The totality of the evidence supports the conclusion, and I so find, that it is very likely that [Ms Tyler] has a mental health condition of reasonably long-standing that makes her unable to provide adequate physical and emotional care for the children. Relatedly, that [Ms Jacobs’] representations to mental health services that [Ms Tyler] is functioning appropriately impedes efforts by mental health services to effectively engage with and comprehensively assess [Ms Tyler’s] mental health and render her assistance.
[145] This finding was foundational for the Chief Executive’s application under the care or protection provisions of the Act.
[146] Ms Jacobs’ challenge relies principally on the assertion that Ms Tyler attended appointments with mental health services and was discharged.
[147] At the appeal hearing itself Ms Jacobs’ position was more difficult to discern. Initially it appeared that she had gained some insight into her daughter’s mental health condition. She seemed to agree that Ms Tyler needs some assistance and acknowledged that some of Ms Tyler’s statements are “out there” and that she did not have any basis to attack Judge Otene’s findings on this issue. However, her position changed during the course of the hearing. She submitted that it was the fact of arrest, the false accusations made and removal of the children from her care, which caused her daughter’s mental health deterioration and presentation before the Family Court Judge.
69 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler] above n 2.
[148] Ms Jacobs did, properly in my view, accept that day-to-day care for the children depended on both her and her daughter sharing responsibility. This was a proper and realistic concession that her daughter would be unable to care for the children on her own. Rather, mother and daughter should be seen as a “team” caring for the children. This lends force to the position that Ms Jacobs’ real challenge is to Judge Otene’s determination that the custody and related orders were to be in favour of the Chief Executive, rather than her. Notwithstanding that is really the nub of the appeal, I turn to the question of Ms Tyler’s mental health.
[149] Judge Otene was satisfied by the combination of concerns expressed by mental health services, observations by third parties about Ms Tyler’s “irregular presentation”, the record made by the mental health practitioner who conducted an assessment at Ms Jacobs’ home on 12 February 202170 and her own observations of the manner and substance of Ms Tyler’s evidence in court. She rejected Ms Jacobs’ evidence about her own observations and interactions with Ms Tyler or that the reports from Ms White about her sister’s mental health were “maliciously motivated because she is jealous of the affection held by the father of [Ms White’s] children for [Ms Tyler].”71
[150] None of the matters Ms Jacobs relied on in the Family Court and none she now relies on provide any basis on which to attack the Judge Otene’s careful analysis of Ms Tyler’s mental health. The transcript of the evidence in the Family Court hearing is indicative of Ms Tyler having a disordered mind. The fact that she was discharged from mental health services indicated only her failure to engage with the service.
[151] In sum, there was an abundance of material supporting the Judge Otene’s findings and the conclusion itself is unimpeachable.
[152] As a postscript, Judge Otene’s conclusion is further supported by a report prepared by Dr Buckland-Wright, registered clinical psychologist and
70 At [46]. Judge Otene noted that this document was unsigned, and the author not identified but she was satisfied that it was a record consistent with the public health nurse’s report of concern to the Chief Executive on 12 February 2021.
71 At [50].
neuropsychologist, pursuant to s 178 of the Act.72 This report was prepared after the Family Court hearing so did not form part of Judge Otene’s reasoning. The report writer specifically recorded that its use went only to the issue of whether Ms Tyler required a litigation guardian, not her parenting capability. It is quite possible that Ms Tyler’s consent to examination was predicated on that basis and certainly Ms Jacobs is opposed to any reliance on the report.
[153] I do not find it necessary to rely on the report since the evidence before Judge Otene provided a sufficient basis for her findings. But for completeness, I agree that it should not be relied on for this purpose for three reasons: First, because it was not part of the record before the Family Court. Secondly, because the limitations on its use may lead to unfairness. Thirdly, because expert evidence would be required to explain how “capacity” in the legal sense is (or is not) relevant to the ability to parent.
Challenge to findings in respect of Oranga Tamariki’s intervention
[154] As noted, Judge Otene determined that it was more likely than not that the children have been hit, punched and kicked by their mother and O choked by her, in response to which Ms Jacobs hit Ms Tyler.73
[155] Ms Jacobs challenges this finding. She takes issue with the reliability of the allegations made by the children and points to the withdrawal of the charges against Ms Tyler following O’s admissions and H’s inability to give evidence.
[156] However, Ms Jacobs’ submissions overlook that Judge Otene relied on multiple sources of reports of physical abuse, and related follow up by Oranga Tamariki, in her assessment of the reliability of the children’s disclosures. I detail the material circumstances as follows:
(a)Ms White reported to the social worker, Ms Harding, that H had disclosed to her that O had been strangled.74
72 Oranga Tamariki Act 1989, s 178. The psychological report (dated 1 September 2023) was prepared following a direction by minute of Judge A G Mahon. See Chief Executive of Oranga Tamariki — Ministry for Children v [Q] FC Manukau FAM-2021-057-000131, 17 April 2023.
73 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler], above n 2, at [58].
74 At [35].
(b)Ms Harding met with H. H did not repeat the allegation but said that she was not allowed to talk with Ms Harding because “her nana had not approved of her (Ms Harding)”.75
(c)Ms Harding and her supervisor visited O at her preschool. Ms Harding reported that O said her mother was mean and pushed her to the ground.76
(d)Both children were separately interviewed by police on 9 August 2021. H was interviewed a second time on 14 October 2021. In the first interview, H said that her mother pushed and punched her, O, and her grandmother (Ms Jacobs). O said that her mother held her neck hard, had thrown her off the deck and hit and swore at her. In the second interview, H said that her mother had held O’s neck, pushed O off a chair and punched and hit them both. She also said that her grandmother had punched their mother resulting in bleeding and a “fat eye”.77
(e)Ms Harding observed Ms Tyler in August 2021 to have a bruise under her eye.78
(f)Ms Jacobs confirmed that Ms Tyler swore at the children and she had reported that concern to Oranga Tamariki.79
(g)There was established prior violence between Ms Jacobs and Ms Tyler, albeit 12 years earlier and in a different context.80
(h)Ms Jacobs’ continued and present minimisation of the established prior violence and her resort to aggression under examination, suggested an
75 At [35].
76 At [36].
77 At [37].
78 At [57(b)].
79 At [57(a)].
80 At [57(d)].
inability to regulate herself appropriately in stressful situations within the privacy of her own home.
[157] Judge Otene was cognisant of the difficulty in assessing the reliability and credibility of reports by children, which are commonly without corroboration.81 She noted the absence of expert psychological evidence.82 She referred to the principles and guidance set out in DAL v JUW.83
[158] The key part of the Judge Otene’s reasoning is captured in the following paragraphs of her substantive decision:
[56] I discount, as [Ms Jacobs] contends, that the children have been persuaded by [Ms White] to make false disclosures of abuse. H’s first interview and O’s only interview took place only three days after O had been placed in [Ms White’s] care. H was with [Ms White] for only a short period prior. A broad consistent narrative arises from what both children said in the first interviews, namely that [Ms Tyler] has been physically and verbally abusive of both and that [Ms Jacobs] intervenes protectively in reprimand of [Ms Tyler] resulting in abusive interactions between [Ms Jacobs] and [Ms Tyler]. It is not plausible that within that short period the children, particularly in light of their potential developmental difficulties, would have been influenced to enable that degree of broad consistency.
[159] Materially, there is no suggestion that Ms Jacobs, as opposed to Ms Tyler, has physically hurt the children in any way.
[160] Judge Otene noted that the criminal trial relating to the alleged assaults of the children had been abandoned. Ms Jacobs gave evidence that this was because O had lied about what occurred. Judge Otene said that there was no other evidence as to what occurred at the trial. She anticipated that there was to be a second trial.84 No transcript of evidence from the trial was produced to the Family Court but it is now part of the additional evidence which I have given leave for Ms Jacobs to adduce on appeal.
[161] Since issue of Judge Otene’s decisions, information to hand is that the charges have been withdrawn. Withdrawal of the criminal charges is not determinative of
81 Being a specialist court, this is an area where the Judge had considerable experience and expertise.
82 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler], above n 2, at [53].
83 DAL v JUW [2012] NZFC 2050, (2021) 29 FRNZ 59.
84 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler], above n 2 at [38].
whether the physical abuse occurred because the “beyond reasonable doubt” standard of proof required in criminal matters is higher than the different “balance of probabilities” standard required in civil matters. However, the circumstances in which the trial was aborted and led to the eventual withdrawal of charges are nonetheless relevant.
[162] The jury trial commenced on 30 May 2022 with opening statements. On the morning of the second day, O’s DVD recorded interview was played to the jury. O then gave evidence, appearing via CCTV with a court clerk and support person present. At that stage, O was five years old.
[163] O stated multiple times, including when responding to unrelated questions that her mother has been hurting her. However, she denied her mother ever holding her neck and suggested that it had been her sister and that she vomited because of it. She also denied saying that her mother had thrown her really hard off the deck and suggested instead that her mother had thrown her from the deck onto the couch and “[t]hat was really fun”.
[164]Defence counsel for O’s mother had the following exchange with her:
Q. So were you lying when you said [F] threw you onto the deck?
A. It wa – I didn’t say that on here.
Q. We just watched a video of you saying [F] threw you onto the deck.
A. I, I accidentally tell a lie.
[165]However when asked whether her mother ever hurt her, she responded:
She has hurting me, she has hurting me before but she, she have sweared at me before. She was swearing at me and she sweared all a lot. She swear at me.
[166]And:
Q. Are you lying now when you said [your mother] hurt you?
A. No. She hurt me. She was, she has been hitting me.
[167] When it was put to O that she had told her aunt that Ms Tyler had strangled her, she denied saying that but on re-examination she confirmed that her mother “does hitting, smacking and pinching”.
[168] After O was excused, H’s DVD interview was played to the jury. H, then aged nine, was called to give evidence, also via means of CCTV. H did not respond to questions put to her and was clearly distressed. The presiding Judge adjourned the trial for the evening. The trial resumed with H the next morning. H’s continued non-responsiveness and eventual refusal to carry on led the Judge to discharge the jury. At that time he issued a standard order for a new trial.
[169] In my assessment, the circumstances in which the trial was aborted does not have the significance that Ms Jacobs seeks. One child was clearly sufficiently frightened that she refused to answer questions. It cannot be taken from that she was recanting or admitting lying. The younger child, O, withdrew specific allegations which formed the basis of the charges, but confirmed that her mother had hit, pinched and smacked her.
[170] The further information provided by Ms Jacobs does not establish that the children’s disclosures that they suffered some physical abuse from their mother were false. Even if the criminal trial transcripts had been before Judge Otene, she would have been led to the conclusion that, on the balance of probabilities, the children had been harmed by their mother.85 Ms Jacobs’ submissions denying that any abuse occurred are not based on cogent evidence.86 Judge Otene’s findings were open to her and she had the distinct advantage of seeing and hearing from the witnesses as they gave evidence. She did not err in this respect.
[171] Ms Jacobs additionally challenges Judge Otene’s findings of neglect. This neglect encompassed both the physical and education needs of the children. Judge Otene noted some of the various interactions the children had with health
85 All hearings before the Family Court are classified as civil matters and, as such, the required standard of proof is “on the balance of probabilities”.
86 As counsel for Oranga Tamariki points out, these matters could have been tested at the hearing by cross examination however Ms Jacobs’ counsel did not put to the witnesses that their evidence was false or misleading.
agencies and education providers, the description of the condition of both children when they came into the care of Ms White and the description of the physical environment of Ms Jacobs’ home. She also noted that social workers were not permitted inside the home. Assimilating all the evidence, Judge Otene was satisfied that the children’s health and development needs and, for H, her education needs had not been met.87
[172] Ms Jacobs produced a voluminous bundle of health records for both children as part of the new material before the Court.88 She submits that these show that the needs of the children were not being neglected; on the contrary, that the children were regularly seen by medical providers. In addition, she points to evidence which she says shows the children were enrolled in extra-curricular activities and H was enrolled in Te Kura (correspondence school).
[173] The only discernible pattern gleaned from those records is that for most periods of the children’s lives there was frequent attendance at Starship Hospital by Ms Tyler and/or Ms Jacobs, in respect of O due to congenital problems. There is no documentation of concerns about the care of the children recorded in those records prepared by the various paediatric, neurology, ophthalmology or orthoptist specialists seen by O.
[174] Notably this regular attendance pattern changed some time after the end of 2020. There is a dispute about the number of appointments missed at Starship. Even if appointments were missed, in my view the reasons or circumstances are sufficiently unclear to warrant finding neglect. It might be explicable by the family’s own perceived hierarchy of needs – for instance O’s episodes of agitation and distress were noted as remitting although the challenges with O’s sight in her right eye still required ongoing medical intervention.
[175] However, this is not material in the overall scheme because Judge Otene was (properly) much more focused on developmental and education needs than health needs because that is where the evidence showed the most significant deficits.
87 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler], above n 2, at [64].
88 Affidavit of Ms Jacobs dated 27 November 2023.
Consequently, I do not consider that the voluminous health records submitted alter the overall picture presented to the Judge.
[176] I am therefore not persuaded there is any error in Judge Otene’s assessment of the factual matrix or her conclusions. I am particularly mindful that an appellate court should not second guess issues of credibility of witness evidence unless there is a clear and compelling basis to do so. There is no such basis here.
[177]This ground of appeal cannot succeed.
Third Issue – procedural unfairness
[178] This challenge has two limbs. First, the fairness of the cross-examination of Ms Jacobs by Ms Curac, lawyer for the children. Secondly, the lack of a s 178 report prior to the hearing which Ms Jacobs contends led to a miscarriage of justice.
[179] Ms Jacobs’ first complaint is that the cross-examination was conducted in a harassing and accusatory way without intervention by the Judge or Ms Jacobs’ counsel.
[180] Having reviewed the transcript of evidence I find no merit in this appeal ground. Ms Curac had an obligation to ensure that all relevant issues were explored. She did so robustly. Her questions were clear and succinct. I do not consider them overly aggressive or inappropriate. I have no doubt that some lines of questioning were deeply uncomfortable for Ms Jacobs but that was unavoidable. There was no objection by Ms Jacobs’ counsel and the line of questioning, including as to Ms Jacobs’ previous history which included assault against her own children, was relevant to the issue of whether Ms Jacobs ought to formally take on the day-to-day care of the O and
H. It does not follow that the cross-examiner was overbearing, misled the witness or crossed the line in any other respect. The cross-examination was focused on the best interests of the children.
[181] The second limb of this ground relates to the timing of a s 178 psychological report in respect of Ms Tyler, more particularly the failure to obtain such report before
the hearing. Ms Jacobs submits that it is unacceptable that this issue was not canvassed early in the proceedings and certainly before the hearing in the Family Court.
[182] The lawyer appointed to assist the Court in or around early 2023 noted that she had previously been appointed to investigate the same issue (of whether Ms Tyler required a litigation guardian) in mid to late 2021.89 In a report dated 12 April 2023, she recommended that a s178 neuropsychological assessment of Ms Tyler be undertaken. She noted that Ms Tyler did not consent to an assessment because she had undergone previous assessments.90 It was only on or around 17 April 2023, during a further review conducted by Judge A G Mahon in the Family Court, that Ms Tyler changed her position and consented to involvement in such a report.91
[183] There is no evidence from Ms Tyler’s then lawyer to suggest that she was not able to receive instructions prior to or during the substantive hearing. This was only raised after the substantive hearing. In her substantive decision, Judge Otene invited Ms Tyler to consent to the making of an order under s 178(3) of the Act.92 She did not consent to an examination at that point. There is no basis to suggest that Ms Tyler would have consented to the making of such an order earlier. 93
[184] As consent is a requirement, the absence of consent addresses this ground of appeal. Indeed, Ms Jacobs filed a further memorandum with this Court on 21 May 2023 seeking to further appeal the order made under s 178 on the basis that Ms Tyler did not, in fact, consent to the examination. However, no formal notice of appeal was filed and no interim relief was sought. Events effectively overtook that objection in that the s178 examination was made and a report provided.
89 She referred to her report dated 6 September 2021.
90 The lawyer assisting recommended that if Ms Tyler continued to refuse consent the Court should direct that Ms Tyler file affidavit evidence producing medical evidence to inform any decision that she is not an incapacitated person and that there be a hearing scheduled to enable determination.
91 Chief Executive of Oranga Tamariki — Ministry for Children v [Q] FC Manukau FAM-2021-057-000131, 17 April 2023.
92 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler], above n 2, at [77].
93 Section 178(3) provides that an order under s 178(2) requiring any person having care of any child to undergo any medical, psychiatric, or psychological examination shall not be made unless the person consents to the making of the order.
[185] In those circumstances, and against that background, this ground of appeal cannot succeed.
Fourth Issue – access orders
[186] A further aspect of Ms Jacobs’ appeal is whether the Family Court should have made an order for access or contact in favour of Ms Jacobs, Ms Tyler and the children’s father rather than defer to the Chief Executive to include arrangements for contact within the “care plan”. This is the most vexing of the appeal issues. Judge Otene considered that an order for access would not provide the required degree of flexibility at a stage when the impact of harm on the children had yet to be fully understood.94 Her reasons were:
(a)The complexity of the family dynamic and Ms Jacobs’ disposition.
(b)A need for flexibility to respond to the children’s needs.
(c)At that stage the children’s acute needs were in the process of being attended to by the sole guardianship order which would subsist until January 2023.
(d)It was premature to rule out the children’s return to Ms Tyler’s care until it was clearer that the prospect of her recovery was remote.
(e)Ms Tyler’s mental health functioning also had bearing upon any future prospect of the children being returned to Ms Jacobs’ care given the very close connection between Ms Tyler and Ms Jacobs.95
(f)Absent Ms Tyler’s participation in mental health assessment and Ms Jacobs’ encouragement to enable expert guidance about Ms Tyler’s condition and any recommended assistance, the Court would more
94 Chief Executive of Oranga Tamariki — Ministry for Children v [Tyler], above n 2, at [70].
95 During the appeal hearing Ms Jacobs also acknowledged that it would be a fair proposition to treat her/Ms Tyler as “a team” in terms of care for the children as Ms Tyler could not do it alone.
readily accept that the prospect of the children’s return to Ms Tyler (or Ms Jacobs) was too remote.
[187] As at the time of the appeal hearing, Ms Jacobs told the Court that matters of access/contact had not progressed. That is concerning but, after careful reflection, I have concluded that no error is shown in Judge Otene’s reasoning and a cautious approach at that stage of the proceeding. Present matters of access must respond flexibly to the best interests of the children. The Family Court is the forum best placed to determine what is in the best interests of the children at this particular time, informed by up to date expert reports and the availability of therapeutic interventions.
Result
[188]Having rejected each of the grounds advanced, I dismiss the appeal.
[189] The Chief Executive properly makes no application for costs. I agree that it is appropriate that there be no order as to costs.
Postscript
[190] It is well outside the ambit of this appeal and not appropriate for this Court to usurp the function and authority of the Family Court by making directions given that the appeal is dismissed. However, Ms Jacobs makes impassioned pleas for consideration to many issues which she maintains have arisen since the judgments under appeal. I appreciate the difficulty of a litigant in person trying to navigate around the complex processes in any court. In a bid to collate these issues in one place, I record the matters raised but which are beyond this appeal and the jurisdiction of this Court. In doing so, I am not to be understood to be making any recommendations:
(a)A requirement for regular updates on the progress and welfare of the children from the lawyer for the children and/or Oranga Tamariki workers.
(b)A requirement that the lawyer for the children serve on Ms Jacobs, the children’s father and Ms Tyler’s litigation guardian, all memoranda and reports they file in Court.
(c)Consideration be given to providing a communication assistant for court hearings for the children’s father who has reading difficulties.
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Walker J
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