Weir v Ministry of Social Development

[2013] NZHC 2626

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003682 [2013] NZHC 2626

IN THE MATTER             of an appeal pursuant to s 341 of the Children Young Persons and Their Families Act 1989

BETWEEN  JOAN WEIR Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT

First Respondent

ANDJEFFREY YOUNG Second Respondent

Hearing:                   1 October 2013

Counsel:                  J Noble for Appellant

J Foster and R Garden for First Respondent
D Ransfield for the child

Judgment:                9 October 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on Wednesday, 9 October 2013 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitor/Counsel:

JD Noble, Auckland. Crown Law, Wellington. D Ransfield, Auckland.

JOAN WEIR v MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 2626 [9 October 2013]

Introduction

[1]      Joan Weir appeals against two decisions of the Family Court that had the effect  of  discharging  an  order  giving  her  access  to  her  son  Michael  on  three occasions per week.  The result was that access would be exercised in accordance with a Ministry of Social Development plan, which in practice would provide for access four times per year.

[2]      The access orders arose out of a decision of the Family Court made after a three-day hearing, in which it was declared that Michael was in need of care and protection.1   The result was a s 101 custody order in favour of the Chief Executive of the Ministry of Social  Development  (MSD),  and  an  order appointing  the Chief Executive as an additional guardian.   The decisions, other than those relating to access, are not the subject of this appeal.

A brief history

[3]      A  full   background   is   provided   in   the   decision   of   Judge   Druce   of

23 July 2013.2

[4]      Michael was born on 5 December 2011.   He is now 22 months old.   His mother, Joan Weir, is from Germany, and has lived in New Zealand since 2007.  She came to New Zealand as a student on a limited purposes visa and her ability to remain in New Zealand has been at risk since March 2011.   She has a continuing desire to live permanently in New Zealand.

[5]      The chances of her remaining in New Zealand have not been traversed in the evidence, but there is clearly a real possibility that she will have to leave.  However, I have had no submissions on the topic.  In those circumstances I do not treat her residence as a material circumstance in considering this appeal.   I note that Judge

Druce did take it into account.

1      Ministry of Social Development v [Weir] [2013] NZFC 5671.

[6]      Michael’s  father,  Jeffrey  Young,  is  a  New  Zealand  citizen,  and  he  and Ms Weir lived together intermittently for periods.  Their relationship appears to be now at an end.

[7]      At some stage prior to Michael’s birth, professionals working for the Ministry of Social Development developed concerns as to Michael’s post-natal safety.  The MSD applied for a declaration that Michael was in need of care and protection, and obtained a s 68 interim custody order.  Michael was removed from Ms Weir’s care while she was in hospital after giving birth.   Shortly after his birth, there was a family group conference on 11 December 2011.  Neither parent was able to develop a co-operative relationship with MSD.   Each parent was assessed by MSD as not being able to adequately care for Michael.   Michael was placed with professional caregivers on an emergency basis pending a resolution.   Ms Weir was at the time facing deportation.

[8]      Initially Ms Weir and Mr Young had supervised access of three one-hour sessions per week.  On 24 January 2012, the MSD stopped that access because of an unscheduled visit by Ms Weir to the caregiver’s home, where she posed as a seller of nappies.  Her motives were unclear.  Michael was unaffected in the incident.

[9]      On 23 April 2012, Judge Ryan had to determine an application brought by Ms Weir for access to Michael under s 121 of the Children Young Persons and Their Families Act 1989 (CYPFA).  At that point Michael had been with three caregivers, the first, an emergency caregiver; the second, a caregiver who ultimately could not maintain the care; and new caregivers from January 2012.

[10]     In an oral judgment delivered on 23 April 2012, Judge Ryan reinstated the three-times weekly access.  He stated:3

My reasons for reinstating access are these:

(a)   There is no finding, yet, that this baby is in need of care and protection.

(b)   The grounds advanced in support of the application for declaration [are] that the mother has mental health issues that will impact upon her ability to safely parent this baby.

[18] At the moment that proposition is untested …

[11]     The Judge went on to say:4

But it is really important to highlight that at this stage of the process there is no declaration, there is no finding that the mother is incapable of safely parenting the child.  But there is enough, quite rightly so, to have concerned a Judge sufficiently to make an interim custody order under s 78.  There is also enough information to make it abundantly clear that any access between this child and either of his parents, but in particular the mother, must be supervised.

[12]     Judge  Ryan  had  been  particularly  concerned  about  an  incident  that  had occurred on 23 December 2011, when Ms Weir attempted to remove Michael from a baby’s carseat.  Mr Young had expressed the view in an email to a social worker that she had been intending to kidnap Michael and take him to Rotorua for Christmas. Ms Weir denies this.  In any event, the social worker had to intervene and prevent Ms Weir from removing Michael from the carseat.

[13]     Judge Ryan recorded that he did not know what exactly had happened and what the truth of the matter was.  But the incident had made him concerned about her behaviour.  Nevertheless, in all the circumstances, he was not prepared to change the three days per week access.  It applied to both parents.

[14]     The Judge was careful to note that he made the access orders in the context that the child was not yet the subject of a declaration and might not be.  He felt that until an order was made, the child had to be able to form a bond or attachment with his parents.5    Judge Ryan also took the step of making an interim restraining order against both parents, preventing them from having contact with Michael except on supervised access occasions.

[15]     In late 2012, psychologists employed by the Ministry’s Special Services Unit

carried out capacity assessments on each parent.   Each was assessed as not being able to care adequately for Michael.

4 At [19].

[16]     The MSD’s application for custody was heard over three days on 22 April and 1–3 July 2013.  Evidence was given by two MSD psychologists, Ms Read and Ms Crummey; a psychiatrist, Dr Alan Fraser; Michael’s social worker, Morgan Ely; Michael’s caregiver from January 2012 until recently; and Janice Kosterman of the MSD, who has been the access supervisor for the majority of the visits by Ms Weir.

[17]     At that hearing before Judge Druce, both Ms Weir and Mr Young opposed the

Chief Executive’s  application  for custody.    Ultimately in  a careful  and  detailed judgment delivered on 23 July 2013,6 Judge Druce made the following orders:

A declaration pursuant to s 67 that Michael, born 5 December 2011, was

in need of care or protection.

The MSD plan dated 18 January 2013 was accepted as complying with

the Act.

A s 101 custody order was made in favour of the Chief Executive of

MSD.

A  s 110(2)(b)  order  was  made  appointing  the  Chief  Executive  an

additional guardian.

The s 121 access applications of both parents were dismissed.

The plan was to be reviewed in six months.

[18]     The Judge did not deal specifically with the orders that had been made by

Judge Ryan.  He sought further memoranda in that regard and issued a Minute on

29 July 2013.  In that Minute he recalled his judgment of 23 July 2013 and altered it to discharge the s 121 order made by Judge Ryan on 23 April 2012.

[19]     This then left the question of access to be covered by the MSD plan, dated

18 January 2013, which the Judge had accepted as complying with the Act.   That

MSD plan of 18 January 2013 provided for a social worker to manage all access and contact between Michael and his parents until permanent placement.  The plan does not appear to have provided specifically for access four times a year, but this is in fact the practice of the MSD in the situation where a child has been placed with permanent caregivers.  The Judge was aware that the effect of his orders would be that access was four times a year.

[20]     At  the  time  of  Judge  Druce’s  judgment,  it  was  known  that  Michael’s caregivers were about to change.  New permanent caregivers had been chosen.  The transition took place over a six week period following the issue of his judgment.  I was informed that on Monday 30 September 2013, Michael had assumed fulltime residence with his new caregivers.

The appeals

[21]     Thus, what is appealed is the order discharging the three times a week access order.  Mr Young has not pursued an appeal and therefore the only challenge to the orders is that of Ms Weir.  In oral submissions, Mr Noble recognised that given the change of circumstance, in that the MSD now has custody of Michael and Michael is with new permanent caregivers, three times per week might be too much, and once a week could be more appropriate.

[22]     Ms  Weir  has,  in  a  separate  appeal  filed  by  her  without  assistance  from Mr Noble, challenged the custody order.  That separate appeal has not been set down for hearing.  The appeal had not been formally served on the respondents who had not anticipated it that it would proceed.  Indeed, Mr Noble does not appear to have anticipated that it would proceed and filed submissions only in relation to access. Against that background, it was agreed that the appeal on the custody order, while still extant, was a separate matter and it has not been addressed in the course of submissions  on  the  access  issues.    It  was  after  some  discussion,  accepted  by Mr Noble and also Ms Weir, who addressed the Court herself, that it could not be

heard today.7

7      See my minute of 1 October 2013.

The submissions for Ms Weir

[23]     Mr Noble,  counsel  for  Ms  Weir,  in  careful  written  and  oral  submissions argued that Michael had been comfortable with access to his parents up to the time of the order revoking the access, and that there was nothing to suggest he had been harmed in any way.   He submitted there was no evidence supporting the drastic reduction from 156 visits per annum down to four visits per annum.  He submitted also that there was insufficient evidence before the Judge to enable him to determine that such a decrease in access was in Michael’s interest, and that the Judge was wrong to do so in the absence of such evidence.  He submitted that it would promote Michael’s welfare and interests to see his mother regularly.   He relied on various provisions  in  the  CYPFA,  which  supported  the  maintenance  of  a  relationship between a child and his family.

Approach

[24]     This is an appeal under Part 6 of the CYPFA and the High Court Rules and ss 74 to 76 of the District Court Act 1947 apply with all necessary modifications.

[25]     The appeal is by way of re-hearing.  Section 76 governs the powers of the High Court on appeal.  The High Court’s powers on appeal were expanded by the District Courts Amendment Act 2002 to include “mak[ing] any decision which it thinks ought to have been made”.  This formulation enables the appellate court to substitute what it considers is the right answer rather than to determine only whether there  was  a  sufficient  basis  for  the  District  Court  decision.    In  light  of  the

observations of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar,8

the appellate court in an appeal by way of re-hearing such as this should carry out its own assessment of the facts and should not hesitate to substitute its own findings of fact.  Nevertheless, Austin, Nichols & Co Inc v Stichting Lodestar makes it clear that

the onus is still on an appellant to show that the first instance Judge was wrong.9

8      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

9 At [4].

[26]     Section 5 sets out the general principles to be applied in exercise of the powers conferred by the Act.   They emphasise the importance of the relationship between a child and that child’s family.

[27]     Section 13 sets out “principles” under the heading “Care and Protection of Children and Young Persons”.   At s 13(b)–(e) there are a number of provisions emphasising the importance of maintaining and developing the association between the child and that child’s family.  It also contains other relevant provisions:

13   Principles

(a)   The principle that children and young persons must be protected from harm, their rights upheld, and their welfare promoted:

…

(f)   Where a child or young person is removed from his or her family, whanau, hapu, iwi, and family group, the principles that,—

(i)   Wherever practicable, the child or young person should be returned to, and protected from harm within, that family, whanau, hapu, iwi, and family group; and

(ii)  Where the child or young person cannot immediately be returned to, and protected from harm within, his or her family, whanau, hapu, iwi, and family group, until the child or young person can be so returned and protected he or she should, wherever practicable, live in an appropriate family-like setting—

(A)  That, where appropriate, is  in the same  locality as that in which the child or young person was living; and

(B)  In which the child’s or young person's links with his or her family, whanau, hapu, iwi, and family group are maintained and strengthened; and

(iii) Where  the  child  or  young  person  cannot  be  returned  to,  and protected from harm within, his or her family, whanau, hapu, iwi, and family group, the child or young person should live in a new family group, or (in the case of a young person) in an appropriate family-like  setting,  in  which  he  or she  can  develop  a  sense  of belonging, and in which his or her sense of continuity and his or her personal and cultural identity are maintained:

…

(h)   Where a child or young person cannot remain with, or be returned to, his or her family, whanau, hapu, iwi, and family group, the principle that  the  child  or  young  person  should  be  given  an  opportunity  to

develop a significant psychological attachment to the person in whose care the child or young person is placed:

...

(emphasis added)

[28]     While the desirability of a child living in association with his or her family is again strongly emphasised, so also is the need to protect the child from harm.  The word “harm” is not defined.  I note that the definitions of “child abuse” and “victim” under the Act both contain definitions that include emotional damage as a type of harm.   Further, s 14, which governs the definition of children in need of care or protection, also contains a definition of harm that includes emotional damage.  Also the UN Convention on the Rights of the Child, which was ratified by New Zealand, contains multiple articles that foresee intervention by the state where a child’s mental or emotional state has been disrupted.  The Act is one of the main components by

which New Zealand has implemented its obligations under the Convention.10    I am

satisfied that “harm” is not limited to physical harm.  In this context it can be harm by disruption of the child’s stability and sense of belonging, and harm to the child’s happiness and sense of wellbeing.

[29]     The principles at ss 13(f)(iii) and 13(h) recognise that despite the emphasis on  the  association  between  a  child  and  that  child’s  family,  there  will  be circumstances where children must live away from their family, and in such circumstances ss 13(f)(iii) and 13(h) emphasise that the child should  be able to develop a sense of belonging in the new environment and a significant psychological attachment to the new caregivers.

[30]     All of the specific principles must bow to the general provision provided for in s 6 that the welfare and interests of the child are paramount.  While the principles

make it clear that the biological tie between a child and that child’s parents is of

10     Ministry of Foreign Affairs and Trade Convention on the Rights of the Child: Presentation of the Initial Report of the Government of New Zealand (report under the United Nations Convention on the Rights of the Child, May 1997) at 6; BD Inglis New Zealand Family Law in the 21st Century (Thomson Brookers, Wellington, 2007) at 644, citing Dellabarca v Christie [1999] 2

NZLR 548 (CA) at 551.

great importance, that tie takes second place where the welfare of the child requires placement away from the family.11

The change of landscape

[31]     Judge Ryan gave his decision granting access three times a week in the context of Ms Weir being a birth parent of Michael who might, in the pending proceedings, be given the care of Michael.  Given that possibility, everything had to be done to maintain the family relationship.

[32]     This position changed entirely on 23 July 2013, when Judge Druce declared that Michael was in need of care and protection and made a custody order in favour of the Chief Executive of the MSD.   Michael was going to new caregivers with whom he would be permanently placed.  Those new caregivers would become his family.   He would have to get to know them and bond with them.   In accordance with  s 13(h),  Michael  had  to  be  given  an  opportunity  to  develop  a  significant psychological attachment to his new caregivers.  There was no longer the possibility that Michael would be living with his mother.  The need to make provision for that contingency, which had driven Judge Ryan to his decision to reinstate three-times weekly access, had come to an end.

[33]     I do not accept Mr Noble’s submission that access can only be decreased if it can be shown that the access could harm Michael.  There has to be recognition of the radical change of custody that has taken place, and access orders must be tailored to maximise the chances for Michael to flourish in that new environment.  This was the new reality in which Judge Druce made the access orders.

Evidence supporting quarterly access

[34]     The Judge had evidence before him as to what the MSD considered the appropriate access arrangements could be, if the MSD was successful in its application for custody.  An MSD child and family psychologist, Karen Read, in her

report dated 8 January 2013:

11     Atkinson v Ministry of Social Development [2009] NZFLR 625 (HC) at [20]–[32].

13.2     Contact between [Michael] and [Joan]

The primary need for [Michael] is the opportunity to build a psychologically secure relationship with a permanent caregiver who is nurturing and protective and who fosters trust and security.  With this in mind, access must be purposeful and consistent with [Michael’s] best interest.  Access should not increase distress for [Michael], disrupt new relationships or routines, nor be confusing. Access must meet the needs of [Michael], not [Joan].

For a child in permanent care, access with biological parents serves the purpose of developing and maintaining familial links, and cultural identity, and a realistic perspective of their parent/s.  Identity development processes begin in late childhood and continue through adolescence and beyond.

In the past, access with [Joan] has been distressing for [Michael].  He does not have a strong emotional relationship with her, thus he is unlikely to benefit from frequent or regular access.   Direct access should be carefully planned, managed and supervised to ensure absolute psychological and physical safety for [Michael].  Given [Joan’s] history, additional vigilance is required until a pattern of acceptance and safety is well-established.  Indirect contact in the form of letters, cards, photos, stories, and mementoes should be screened to preserve safety for [Michael].  Access for [Michael] will be most successful if [Joan] accepts, respects and supports the role  of new caregivers as [Michael’s] primary parents.   Her roles and responsibilities must be made clear.

[35]     In addition Michael’s social worker, Ms Ely, stated under cross-examination from Mr Young, in explaining why access should take place quarterly:

A.   That  is  a  normal  arrangement  to  support  a  child  to  develop  the appropriate bonds and attachments to a permanent family and obviously that decision would be made because the decision would be that it was in [Michael’s] best interest that he be parented by other people permanently and so his primary attachment would be with the new caregivers.  Any relationship that he would have with his birth parents would be for the purposes of informing his identity, his understanding about where he comes from in the world, not as a primary caregiver, primary attachment features in his life.

[36]     She also commented in evidence that she did not think that Ms Weir was well bonded to Michael or that limited access would be upsetting for him.  It is significant that the new caregivers have been chosen on the basis that they have similar ethnic backgrounds to the parents.

[37]     I do not accept Mr Noble’s submission that there was no or insufficient evidence before the Judge as to the appropriate access, if there was a custody order in favour of MSD, being quarterly access.  While access was not the primary focus

of the hearing before the Judge, as actual custody was at issue, there was evidence adduced supporting quarterly access.

Evidence that greater access could be harmful to Michael

[38]     In addition, there is evidence that indicates that access as desired by Ms Weir, even if supervised, could be positively harmful to Michael.

[39]     It is true, as Mr Noble has rightly emphasised, that in the approximately

15 months of twice per week access that followed Judge Ryan’s order in April 2012, there were no significant reported incidents involving any upset or harm to Michael. Both the caregiver at the time and the supervisor of the access visits confirmed this.

[40]     However, it is also clear from their evidence that Ms Weir has difficulty in concentrating  on  Michael  when  she  is  with  him  and  in  developing  a  usual mother/son bond.   There is evidence, for instance, of poor eye contact  between mother and son, and that on meeting his mother and the access supervisor, Michael showed more interest and delight in the supervisor than his mother.  Michael is an affectionate and resilient boy who gets on with life and tends to accept situations as he finds them, but the evidence points clearly to there being no particular attachment or bond between him and his mother. At its best for Ms Weir, the evidence is that on access occasions up to July 2013, when Michael was in the presence of his mother, he was reasonably comfortable.

[41]     The MSD psychologist, Ms Read, was of the opinion that Ms Weir was not emotionally available to Michael, and that Michael had witnessed his mother being unsafe at times.

[42]     There has been an unfortunate reported incident since the new access regime was put in place following the hearing before Judge Druce.   An access visit was scheduled for 6 August 2013.  Ms Ely deposed that while not the supervisor, she was nearby when the access visit took place.   After the visit commenced she heard Michael crying.  She found Ms Weir standing amidst a group of staff members with Michael tied to her torso with a scarf.  She was saying “But I’ve lodged an appeal” and appeared to be staring into space rather than looking at the people involved.  She

was holding onto Michael tightly on his legs and body, and in the end four persons had to remove Ms Weir’s tightly gripped hands from Michael’s body and remove the tied up scarf.  Michael had been crying and needed calming.

[43]     Ms Weir says in response that after an initial orthodox access exchange she started carrying Michael around the room to look out the window and tied him with a scarf to her body so she could have her hands free to hold other things and pose for the photograph.  She says that she “wanted to extend the family time that I would spend with him” as she had been told by social workers that it was her last visit, and she was unhappy that she would not get an opportunity to be with her son.  She said:

The  social  workers  followed  screaming  at  me,  I  got  afraid.    The  staff members did not even give me the opportunity to return [Michael], but tried to physically remove him from me, which was not nice.   I felt so numb afterwards.

I am sorry that I tried to take [Michael] out of CYF’s care.  I know it was not wise of me to try to take [Michael].  [Michael] was not harmed physically or emotionally by me.

[44]     Ms Weir has undertaken to respect any access orders that are made if Judge

Ryan’s orders are reinstated.

[45]     Interpreting this affidavit exchange as best I can, it is clear that Ms Weir, whatever her motives, acted in an inappropriate manner towards Michael and he was involved in a very upsetting incident as a consequence. At the very least, her actions in tying him to her body and then resisting him being removed were quite contrary to his interests.  There was also a real concern that in an irrational and unplanned way some effort was being made on her part to keep Michael for herself.

[46]     I also accept Ms Ransfield’s submission as lawyer for the child that Ms Weir does not accept the need for Michael to be permanently placed out of her care. Ms Ransfield observes that there is a real risk that if access remains at three times a week while Michael is being transitioned into a permanent placement, this could lead to an undermining of the placement and would not be in Michael’s best interests.

My assessment

[47]     When there has been a permanent placement with non-family caregivers, access is not given for the purposes of allowing a biological parent to develop a relationship in a way which will ultimately lead to a young child being returned to the biological parent.  Indeed such an approach would be contrary to the interests of the child.   This is because the child may well end up with confused loyalties in family ties.

[48]     The biological tie does not give a natural parent a right to custody or access. The relevant right is the right of the child to have his or her welfare and interests treated as paramount.12   Michael is in a brand new environment.  It is essential that he bond happily with his new family and feel secure in his new environment.  As part of that, it is important that he is not subjected to conflicts and unpleasant scenes, and that the new caregivers are not faced with access occasions that upset and disorientate Michael, and disrupt his happiness with them.

[49]     Even if there had not been the unfortunate history that I have touched on in relation to Ms Weir’s dealings with Michael, there would be good reason to be cautious about too much access at this early stage of placement, where a happy bonding is the priority.  However, the threat of damage to Michael is more serious than just this general risk.  Given the chequered history of access, and the recent very unfortunate incident, there is good reason to think that Michael could be positively harmed by frequent access at this time.   Certainly even on Ms Weir’s account of events, what happened at the last access visit was quite contrary to his interests.  She shows signs of being willing to grab him in an upsetting and threatening manner, and to be grossly insensitive to how her actions affect him.  There must be a risk also that in her communications with Michael on access occasions, she will try to buttress her claim to him and seek to damage the new caregiving arrangement, to which she is so opposed.

[50]     There has been much more focus on the issue of access in this Court than there was before Judge Druce.  The evidence before the Judge was focused on the

12     Atkinson v Ministry of Social Development, above n 10, at [57].

central issue of custody.  I have had the benefit of far more detailed submissions on the issue of access.  Counsel for the child, Ms Ransfield, supports the proposed four- times a year access, and considers that this is in Michael’s best interests.  In the light of the facts that I have set out, I can see why she does so.

[51]     It is of course to be hoped that matters will settle down, and there will be successful supervised access visits.   That is in Michael’s interests.   Judge Druce noted that the plan involved flexibility, rather than turning on rigid Court orders.13   It is relevant that the plan under which access is supervised is a plan that is to be reviewed after six months.  That is likely to be in January 2014.  There will be an opportunity then for the MSD to review access.  The report will go back to the court. There will be an opportunity for Ms Weir to make a further application in relation to access at that time.

[52]     In the meantime, Ms Weir has the opportunity of remedying the disastrous last access visit by approaching the next access occasion with a different mindset.  If there can be successful access visits and she can show that she can be stable and responsive in that context, there might well be a case for greater access.  This would in turn also depend on the position of the caregivers, and Michael’s progress in his new environment.  There are many unknowns.  What can be said for certain is that nothing is set in stone.  Everything will be considered afresh next year.  As I have stated, I do not take into account issues about Ms Weir’s residence, although I record the possibility that she may at some stage be deported from New Zealand.

[53]     In  all the circumstances,  I am unable to see any error in Judge Druce’s approach to access or in the conclusion he reached that the earlier access orders be revoked, and that quarterly access controlled under the MSD plan should prevail for the first six months.  Indeed, I consider his decision to have been correct.

[54]     The appeal, therefore, is dismissed.

13     Ministry of Social Development v [Weir], above n 1, at [99].

[55]     I record that I have used fictional names for Michael and the parties to protect their identity.

……………………………..

Asher J