W v Chief Executive of the Department for Child Youth and Family Services HC Auckland M 602-Im/2001

[2001] NZHC 472

IN THE HIGH COURT OF NEW ZEALAND M 602-IM/2001
AUCKLAND REGISTRY

BETWEEN W
Applicant

AND THE CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD, YOUTH AND FAMILY SERVICES
Respondent

Hearing: 7 June 2001

Counsel: CP Comeskey for Applicant
TA Simmonds for Respondent
PJ Recordon for Children

Judgment: 7 June 2001

JUDGMENT OF FISHER J

Solicitors:
Davies Law, PO Box 15547, New Lynn, Auckland for Applicant
Meredith Connell & Co, DX CP 24063, Auckland for Respondent
PJ Recordon, Barrister, DX CP 29510, Ponsonby, Auckland for Children

[1] In a decision of 26 February 2001 Judge Robinson in the Family Court found that the applicant’s two children were in need of care and protection. Today the applicant seeks leave to appeal against that decision out of time.

[2] The background is that the applicant is the mother of two young children. The older child A in particular had a history of being taken by the applicant and her mother to various medical agencies for treatment. Eventually a concern arose that the treatment may have been unwarranted and that the signs and symptoms which gave rise to the alleged need for treatment may have been traceable to a condition on the part of the applicant known as Maunchausen Syndrome by Proxy (MSBP). In consequence on 26 November 1999 the Children and Young Persons Service applied for a care and protection declaration under s 67 of the Children Young Persons and Their Families Act 1989. They coupled that with an ex parte application for an interim custody order under s 78 which was granted on the same day.

[3] Over the 18 months or so since that date the two children have been in the custody of their grandparents. The substantive application eventually came on for a full defended hearing in February of this year. In his decision of 26 February this year the Judge rejected the applicant’s position that A had suffered from genuine medical problems that required attention. He found also, on the basis of an admission from her, that A had been given an inappropriate drug, that there were times missed from schooling, the ingestion of inappropriate drugs, harm from family dysfunctions within the home and also a general concern that if the children were restored to the applicant and the broader context of family members having influence over the applicant that there was a substantial risk of harm to the two children. In consequence he made a declaration under s 67 that they were in need of care or protection and called for a plan to be prepared as to how that declaration should be implemented pursuant to s 128 of the Act.

[4] The 28 days required for an appeal against that decision expired on 26 March 2001 without the lodging of any appeal by the applicant in terms of s 342(1)(a) of that Act. The applicant says that she allowed that time to go by because she was waiting to see what would be the result of the specific orders giving effect to the declaration. A plan was filed on 7 March 2001 by Ms Curtis on behalf of CYPS and forwarded to the applicant’s counsel on 9 March 2001. It recommended guardianship and custody orders in favour of the Chief Executive of Child Youth and Family pursuant to ss 110(2)(a) and 101 of the Act. She also recommended that a counselling order be made directing the applicant to participate in a counselling plan pursuant to s 83(1)(c) and that the whole plan be reviewed after six months. Those proposals then came back before the Family Court on 4 May 2001. After a defended hearing over the guardianship and custody aspects the Judge made the four orders as recommended. The applicant then filed her application for leave to appeal out of time on 26 April 2001. This just scraped into the period provided in s 342(1)(b) pursuant to which the High Court can allow an appropriate extension of time for the filing of an appeal if an application for such is made within one month after the expiration of the prima facie 28 days.

[5] The question before me today is not one of jurisdiction but rather one of discretion. In exercising that discretion it is usually likely that leave will be granted if the delay has been modest, if there is a good explanation for the delay, if there appears to be a bona fide and seriously arguable ground for the appeal and if the delay has caused no material prejudice. If one of those conditions is lacking the chances of a successful application are commensurably reduced. Overall, however, the discretion must be exercised in the interests of justice.

[6] Proceeding through those four criteria in the present case, the first is the length of the delay. The delay in this case was one month and therefore can be regarded as relatively modest.

[7] As to the reasons for delay, the applicant has raised essentially three matters. Not all of these were included in her affidavit as they ought to have been but I have been prepared to proceed largely on the strength of statements from Mr Comeskey from the bar. The applicant was waiting to see whether the terms of the plan following the declaration would be ones which she could live with. It is not easy to explain why, when she received the Department’s proposals on 9 March 2001, she did not realise that an appeal would be necessary at that stage but at all events she waited until the hearing on 4 May in case their recommended terms might be successfully resisted. A second factor was that she needed time to see whether the transcript revealed a ground for appealing on a particular point which concerned her, namely the Judge’s finding that she still believed that A was suffering from a heart condition conveniently referred to as HOCM. She did not receive the transcript until the end of March and required some time to go through it. A third factor was difficulty over legal fees, earlier legal aid having been stopped.

[8] Overall I think one would have to say that there were no sound reasons for the delay in sensible and rational terms but, on the other hand, in an emotional matter of this kind, particularly with difficulties over legal representation during this period, one could in human terms understand why she might have been less decisive than would have been desirable.

[9] The third consideration is that of prejudice caused through the delay. This is not one of those cases in which the decision appealed against produced some change in the children’s circumstances such that delay would add to the consequent disruptions as they became increasingly settled in a new environment. The result of the interim custody order is that the children have been in their current situation for about 18 months so that in that context delay for another month has not been particularly significant. Mr Recordon also indicates that there is no special anxiety on the part of the children and their caregivers in being kept on tenterhooks for an additional month in waiting to see what might happen over an appeal.

[10] The fourth consideration is whether there is a bona fide and seriously arguable ground of appeal. In that respect Mr Comeskey raised a Bill of Rights point which I do not propose to traverse. In my respectful view it is entirely without merit. There is, however, another and more substantial ground upon which the applicant would rely if given leave to appeal. It concerns the statement by the Judge at one point in his judgment “Ms W still claims that A suffers from HOCM”. Taken in isolation that was at least an added reinforcement for the declaration that he ultimately arrived at because the medical evidence suggested that while HOCM could not be ruled out, equally there were no affirmative medical signs or symptoms suggesting that there was such a condition or even any increased risk of such a condition. If the applicant irrationally believed in that condition that would reinforce the broad diagnosis of MSBP and in turn increase the danger to the children.

[11] On the very cursory examination of the evidence which has been appropriate on an application of this nature, it does appear that in that particular sentence the Judge may have over-stated the case. There is certainly much evidence to suggest that the applicant did have a belief that A was suffering from HOCM but as to the state of her belief by the date of the hearing, it does appear from the transcript that while refusing to dismiss the possibility that A was suffering from HOCM, the applicant had backed away from any affirmative belief that A did in fact suffer from it. That position, if it were to be believed, could not be dismissed as utterly irrational given that the presence or absence of HOCM cannot be finally determined until the patient reaches the age of about 20 or so.

[12] I certainly acknowledge the points made by Mr Simmonds that viewed in the context of the judgment as a whole this particular finding by the Judge probably did not have any determinative role. However, it cannot be said that there is simply no basis whatsoever for the ground of appeal so far identified by the applicant. It does at least get to the point where a value judgment would need to be exercised as to the significance of that point in the broader context. I do not think it appropriate on an application for leave to appeal out of time for me to embark upon that value judgment.

[13] Standing back from those individual details, it seems to me that the delay here was very modest and that the proceedings at least continued to involve live issues up to virtually the time that the applicant filed her application for leave to appeal out of time. In other words, the applicant filed her proceedings in this Court a matter of days after the orders giving effect to the plan were made. In a matter as serious as this I would be reluctant to see the applicant denied the opportunity to traverse this appeal on the merits on the somewhat technical basis that the papers were filed a little late. For those reasons leave to appeal out of time will be granted and for this purpose the application for leave to appeal can be regarded as the notice of appeal itself. That will obviate the need for the applicant to file and serve an additional notice of appeal document.

[14] Mr Comeskey has confirmed that the ground to be advanced at the appeal hearing will be confined to the contention that the Judge was wrong in his conclusion that the applicant (and/or her mother) still believe that A suffered from HOCM. He confirms that there will be no appeal against the orders of 4 May 2001 except of course that if the declaration itself is set aside then the orders made would equally be rescinded.

[15] For the removal of doubt, there will be no additional filing fee payable by the applicant (now appellant) in respect of my treatment of her application for leave to appeal as a document which is now deemed to be the notice of appeal itself. That dispensation will extend to the first day of the hearing of the appeal. In the unexpected event that the appeal is not disposed of within one day I will leave to the Judge hearing the matter to consider the question of additional fees payable. On that subject, Mr Comeskey records that the appellant has applied for legal aid but the outcome is presently unknown.

[16] Mr Recordon is now appointed counsel for the children to appear at the appeal hearing. Counsel are agreed that the appeal will be conducted on the papers, that is to say the record as appearing on the District Court file. No additional evidence will be presented at the appeal. The District Court is directed to provide the appropriate file for use in this Court and the High Court Registrar is asked to make the necessary arrangements in that respect.

[17] Counsel advise that the anticipated length of hearing will be one day.

[18] The parties will observe the following timetable for filing and service of synopsis of submissions:

[a] Appellant by 18 June 2001.

[b] Respondent by 25 June 2001.

[c] Mr Recordon by 2 July 2001.

[19] The Registrar is asked to arrange an early fixture for the hearing of this appeal before any judge on the first date conveniently available after 2 July 2001.