W v Chief Executive of the Department for Child, Youth and Family Services HC Auckland M602-Im2001

[2001] NZHC 790

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M602-IM2001

PUBLICATION SUBJECT TO RESTRICTIONS IN SECTION 348, CHILDREN YOUNG PERSONS AND THEIR FAMILIES ACT 1989

IN THE MATTER of an appeal against a Family Court declaration made pursuant to Section 67 of the Children Young Persons and Their Families Act 1989

C

A

BETWEEN W
Appellant

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

Hearing: 9 August 2001

Counsel: CP Comeskey for the Appellant
TA Simmonds for the Respondent
PJ Recordon counsel for the children

Judgment: 24 August 2001

JUDGMENT OF RODNEY HANSEN J

Solicitors:
Davies Law, P O Box 15547, New Lynn for Appellant
Meredith Connell, DX CP24063, Auckland, for the Respondent
Mr RJ Recorden, P O Box 47 463, Ponsonby, Auckland for the children

[1] This is an appeal against declarations made under the Children Young Persons and Their Families Act 1989 (“the Act”) that the two children of the appellant are in need of care and protection.

Background

[2] The two children the subject of the application are C, who was born in April 1992, and A, who was born in June 1997. Both are the children of W, the appellant. They have different fathers. They had been in the custody of their mother until 26 November 1999 when an interim custody order was made which resulted in their being placed into the care of A’s paternal grandparents.

[3] The application was made following a history of the elder child, C, being subjected to what were described in the judgment appealed from as “unnecessary medical investigations and procedures”. Medical specialists who treated the child noticed marked discrepancies between the symptoms reported by her mother and maternal grandmother and those observed during hospital stays. Their concerns mounted when tests showed that the child had been given Benzodiazepines, a potentially dangerous medication for children, which they suspected had been administered by the mother.

[4] Their observations led them to the conclusion that Chloe may have been suffering from a condition known as Maunchausen Syndrome by Proxy (“MSBP”) which was defined by one of the medical specialists as:

“1 An illness in a child that is simulated, faked, and/or produced by a parent or someone who is in loco parentis.

2 With presentation of the child for medical assessment and care usually persistently often resulting in multiple medical procedures, and,

3 Denial of knowledge by the perpetrator of the aetiology of the child’s illness and with acute symptoms and signs in the child which abate when the child is separated from the perpetrator.”

[5] There was a particular concern on the part of the mother that C suffered from hypertrophic obstructive chardiomyopathy (“HOCM”), a heart condition of which there was a family history. Tests have established that C currently exhibits no symptoms of the condition although its presence cannot be entirely excluded until a person reaches the age of twenty years.

[6] There was evidence before the Judge which suggested that domestic violence within the extended family had also contributed to C’s symptoms. This was not confined to violence in the narrow sense. The evidence showed that the appellant’s parents had a dominant role in her personal life. Her mother was conspicuously involved in C’s medical attendances. They interfered to an extraordinary extent in the appellant’s personal life and her parenting. The Judge concluded that intra-family violence, intimidation and control was a “considerable contributing factor” to C’s illness.

[7] The behaviour of the appellant and her immediate family resulted in repeated and unnecessary medical assessments and treatment. It also had a serious impact on C’s attendance at school, significantly retarding her educational progress.

[8] The evidence established that the children had progressed well since being placed in the interim custody of A’s paternal grandparents. C has shown no signs of serious illness. Her school attendance has improved markedly. She had been restored to a class appropriate to her age.

Statutory provisions

[9] The declarations were made under s 67 of the Act which permits a Court to make a declaration that a child or young person is in need of care or protection where it is satisfied that there is a need of care or protection on any of the grounds specified in s 14(1) of the Act.

[10] The application relied on the grounds set out in s 14(1)(a), (b) and (f) of the Act which provide as follows:

“14 Definition of child or young person in need of care or protection -

(1) A child or young person in need of care or protection within the meaning of this Part of this Act if -

(a) The child or young person is being, or is likely to be, harmed (whether physically or emotionally or sexually), ill-treated, abused, or seriously deprived; or

(b) The child’s or young person’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, serious and avoidable; or

. . .

(f) The parents or guardians or other persons having the care of the child or young person are unwilling or unable to care for the child or young person.”

[11] Section 73 of the Act is also relevant. It provides as follows:

“73 Court not to make declaration 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 declaration under section 67 of this Act that a child or young person is in need of care or protection unless it is satisfied that it is not practicable or appropriate to provide care or protection for the child or young person 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 declaration under section 67 of this Act that a child or young person is in need of care or protection on any of the grounds specified in paragraph (a) or paragraph (b) of section 14(1) of this Act, 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”

Family Court judgment

[12] The Judge came to the conclusion the applicant had shown that both children were in need of care or protection. He found that both had been, and were likely to be, harmed and seriously deprived in terms of s 14(1)(a). He also found the requirements of s 14(1)(b) had been met. He held that the development and physical and emotional wellbeing of both children was being, and was likely to be, impaired or neglected and that impairment or neglect was, and was likely to be, serious and avoidable. He based these conclusions on the risk that MSBP may be present, with the likely result of multiple admissions to hospital, the administration of unnecessary medical tests and an adverse effect on their education.

[13] He considered whether, in terms of s 73(1), it was practicable or appropriate to provide care or protection for the children by any other means. He decided it was not. He rejected a submission that care and protection could be provided by an order that their mother undergo counselling. He acknowledged that she had exhibited “a certain amount of insight” which gave some cause for hope that in the future she could regain custody of the children. But because she continued to be strongly influenced by her parents, he came to the view that her disabilities as a parent could not be met by counselling alone.

[14] He made declarations that the children were in need of care and protection. The interim custody order was continued with the appellant having access on a supervised basis. He adjourned the proceedings for the preparation of the report required under s 128 of the Act when final custody and guardianship orders are contemplated. Those orders were made in a further judgment given on 4 May 2001, to which I will later refer.

Appeal

[15] The main focus of the appellant’s attack on the findings of the Judge was on his conclusion that the appellant continued to believe that C suffered from the heart condition referred to as HOCM. This appears in two passages:

“Notwithstanding the reassurance of a number of health professionals, Ms W and Ms LW [the appellant’s mother] still persist in believing that C has HOCM and have instructed the school accordingly requiring that C’s activities at school would need to take into account the risk of her developing this disease. The warning to the school has not been supported by any of the medical professionals and, on the evidence I have, cannot be justified.” (p 10)

Later he said:

“Furthermore, Ms W still claims that C still suffers from HOCM.” (p 18)

This finding was submitted to be unsupported by the evidence and to have been crucial to the Judge’s findings on at least one of the key issues.

[16] Mr Comeskey, for the appellant, was also critical of the Judge taking into account the incidents of domestic violence. He further submitted that the Judge failed to properly apply the provisions of s 73, in particular, in not expressing himself to be satisfied of the matters referred to in s 73(1) and failing to specifically address the requirements of s 73(2). Finally, Mr Comeskey submitted that it was unfair that the hearing should have been delayed so long after interim orders were made with the result that the bonds between mother and children had been seriously weakened in the interim.

Discussion and decision

[17] Counsel were in agreement that there was no evidence which could support the Judge’s finding that the appellant continued to believe that C suffered from HOCM. There was evidence which suggested that her mother retained that view. It appears, however, that at the hearing the appellant, to use Mr Recordon’s words, “backed away” from her earlier views and no longer sought to maintain that C had HOCM in the face of medical opinion to the contrary. The question I must consider is whether the Judge’s error in this respect was such as to undermine his reasoning process and make it unsafe to rely on the conclusions reached on the critical issues which arose under ss 14 and 73 of the Act.

[18] It could not seriously be disputed that the medical evidence which was consistent with the existence of MSBP fully supported the Judge’s findings of abuse under s 14(1)(a) and (b) of the Act. I am satisfied that the Judge’s erroneous finding made no difference to his conclusion on the s 14 issues. As both Mr Simmonds, for the respondent, and Mr Recordon pointed out, the HOCM issue was one aspect only of the evidence relied on in support of the application. Many of the symptoms exhibited by C were unrelated to HOCM. It was not critical to the Judge’s findings that there was a risk of MSBP. Other factors - including the administration of a dangerous drug to C and the intra-family violence to which the children had been exposed - played an important part in the Judge’s decision.

[19] Mr Comeskey was faintly critical of this aspect of the judgment as it affected the younger child, A, who had not been directly affected, and also by the absence of any finding that MSBP existed. I see no merit in either criticism. The Judge was plainly entitled to conclude that the behaviour which had directly affected C also placed the younger child at risk. He was not invited by the applicant to make an express finding that MSBP existed. It was suggested that he focus on the conduct rather than its label. I regard that as an eminently sensible approach in the circumstances.

[20] Mr Comesky expressed particular concern about the effect of the Judge’s erroneous finding on his consideration of s 73. He submitted that it would have especially affected his assessment under s 73(2)(a) as to whether the kind of harm suffered will continue or be repeated.

[21] On my reading of the decision, and having considered those parts of the evidence to which I was directed by counsel, the Judge would have reached the same conclusion regardless of his findings on the HOCM issue. It is clear that the consideration which weighed most heavily with him on the assessments he was required to make under s 73 was the continuing influence, amounting to control, of the appellant’s parents. In my view, his concerns were fully justified. The parents had been responsible for the domestic violence which the Judge had found to be a “considerable contributing factor” to C’s illness. The attitude of Mrs LW to medical issues was also identified as a contributing factor. It could just as accurately have been described as the source of the problem. The evidence established that, as a child, the appellant had been subjected to a similar level of medical complaints and investigation as C later was and with much the same adverse consequences. The Judge concluded this aspect of his discussion by saying:

“She [the appellant] in fact became so unwell that she could not continue at school after the age of thirteen but strangely enough none of the medical specialists could establish any organic cause for those sicknesses. The evidence supports the conclusion that Ms W herself was a victim of MSBP.”

It is to be borne in mind also that, although the Judge mischaracterised the appellant’s attitude to C suffering from HOCM, there was ample evidence to support his view that Mrs LW’s view had not changed.

[22] The Judge rejected the submission that s 73(1) applied without referring to the appellant’s attitude on the HOCM issue. It is clear that it played no part in the reasoning process which led him to the conclusion that it was not practicable or appropriate to provide care or protection for the children by any other means. He expressed his opinion on this issue before going on to discuss the appellant’s current view on HOCM.

[23] Mr Comesky criticised the failure of the Judge to express himself as “satisfied” as to the matters referred to in s 73(1) and of his failure to give express consideration to s 73(2)(b). He said it was not enough for the Judge simply to say he had had regard to the provisions of s 73.

[24] It may have been preferable for the Judge to have directed himself to and couched his conclusions in the language of the statute. But it is unrealistic to subject an oral decision, given after ten hearing days, to overly pedantic scrutiny. Reading the judgment as a whole, I am satisfied that the Judge directed himself to and correctly applied the relevant tests. I am also satisfied that there was ample evidence to support his findings on all critical issues. I note, in particular, the opinion of Ms Suzanne Blackwell, a psychiatrist who reported to the Court under s 178 of the Act, that if the Court were to find abuse to have occurred, the risk of re-abuse was high. She also explained why it was not practicable or appropriate to return the children to their mother in the circumstances then pertaining.

[25] The time it took to hear the application following the making of the ex parte orders was unfortunate and contrary to s 200 of the Act which requires the hearing of an application for a declaration to take place within sixty days unless special reasons exist. However, I am not persuaded that it had any effect on the outcome of the application. I accept also that responsibility for much of the delay must be laid at the door of the appellant who at times failed or refused to meet with specialists for assessment and failed to comply with timetabling orders.

Plan

[26] On 4 May 2001 the Judge considered the plan prepared pursuant to s 128 of the Act. It was accompanied by a report from a senior social worker which recommended that the appellant undertake counselling pursuant to s 83(1)(c) of the Act. The Judge made that order and, at the suggestion of Mr Recordon, also ordered that a report be obtained from a psychiatrist on a plan for the children and their mother, including their ability to cope with a change in custody and with unsupervised access. He directed that the report be undertaken immediately with a view to its recommendations being taken into account when the s 128 plan is reviewed six months after his decision.

[27] I was informed that the report has not been prepared. There has been no progress towards the development and implementation of the plan. On 21 May counsel for the children wrote to the Court suggesting a means by which progress could be expedited. Nothing has happened since.

[28] The Judge noted that the ultimate objective was for the children to be reunited with their mother. He recognised that could be achieved only by carefully planned therapeutic intervention. It is profoundly disturbing that in the six months since the hearing, no effective steps have been taken to develop a plan for her counselling.

[29] I recommend that immediate steps be taken to convene a hearing in the Family Court to review the implementation of the orders made on 4 May 2001.

Result

[30] The appeal is dismissed. The proceeding is remitted back to the Family Court for further action.