X v Chief Executive, Oranga Tamariki

[2021] NZHC 2449

ORDER PROHIBITING PUBLICATION OF NAMES OR ANY OTHER IDENTIFYING PARTICULARS OF THE CHILDREN TO WHOM THESE PROCEEDINGS RELATE, THEIR FAMILY, OR THE PLAINTIFFS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-608

[2021] NZHC 2449

IN THE MATTER OF

the Judicial Review Procedure Act 2016/ Part 30 of the High Court Rules 2016

BETWEEN

X and Y Applicants/Plaintiffs

AND

CHIEF EXECUTIVE, ORANGA TAMARIKI

Defendant/Respondent

Hearing:

16-17, 23-25 August 2021

Counsel:

V L Heine QC and J A Tocher for Applicants/Plaintiffs

H T N Fong and T Witten-Sage for Defendant/Respondent

Judgment:

17 September 2021

JUDGMENT OF CHURCHMAN J

TABLE OF CONTENTS

Introduction  [1]

The causes of action  [14]
First cause of action  [15]
Second cause of action  [16]
Third cause of action  [17]
Relief  [18]
The respondent’s position  [23]

X and Y v CHIEF EXECUTIVE, ORANGA TAMARIKI [2021] NZHC 2449 [17 September 2021]

Factual background  [24]

The boys and their needs  [24]
Caregiver social worker  [45]
Training  [46]

The allegations  [53]

Challenge to process  [86]

First cause of action  [92]
Plaintiffs’ position  [92]
Respondent’s position  [97]

Remedy  [114]

Analysis and conclusion  [120]

Second cause of action  [125]

Analysis and conclusion  [135]

Third cause of action  [155]

The plaintiffs  [155]
OT  [165]

The ‘right to reasons’  [172]

Relevant law  [172]

Analysis and conclusion  [182]

Outcome  [194]

Introduction

[1]    In 2011, the applicants/plaintiffs who I will refer to as “X” and “Y”, were living in a small rural community in the North Island. They lived on a marae. They were in their early 50s, their children had grown up and they were both in full-time employment. Y’s employment involved him undertaking shift work. X worked regular hours.

[2]    From mid-2010, Oranga Tamariki (OT) had been looking for a placement for four young boys who were part of a 10-child family. The older two boys (who I will call “A” and “B”) who  were  aged  10 and 7 had  been in  the care of  OT between 24 August 2005 and 2008 before returning to care on 14 May 2010, and the younger two (who I will call “C” and “D”) who were aged 4 and 2, since 14 May 2010. They had suffered a history of serious neglect and physical abuse at the hands of their birth

parents. The boys had physical, mental and behavioural challenges. The younger two were not yet at school.

[3]    OT wished to keep the boys together if possible and were looking for a “forever home” for them. That had proved difficult. OT’s evidence was that they had consulted some 50 or so of the boys’ whānau members without success.

[4]    OT then decided to distribute a pānui to local iwi in an attempt to obtain caregivers for the four boys. X responded to this on 25 October 2011.

[5]    Although X and Y had links to the same iwi as the four boys, they did not know them or their parents, and had not previously had any contact with them. They were essentially strangers.

[6]    Although X and Y were parents and grandparents, they had not, as at 2011, had any prior experience of fostering children. Neither did they have any experience dealing with children who had such high and complex needs.

[7]    Following X’s response to the pānui, a social worker at OT (at that time known as Child, Youth and Family) commenced a caregiver assessment of the applicants on 31 October 2011. This included interviews, medical checks, a home visit and inspection, and character references. All of these were carried out in November 2011.

[8]    X and Y were formally approved as joint caregivers under the Home for Life (Permanent Care) Programme on 29 November 2011. X then gave up her full-time paid employment as a support worker to enable her to care for the children full-time. Y continued his shift work employment.

[9]    Following transitional visits made by X and Y to the children and an overnight stay by the children at their house, X and Y were given final approval as caregivers on 25 January 2012, and on the same day the boys moved into their home.

[10]   Although X and Y were motivated by the best of intentions and, to the best of their abilities tried to provide a good home environment for the boys, they appear to have had little real understanding of what they were letting themselves in for. A

compounding factor was that they received no training. Although training was normally given to first time foster parents, because X and Y had iwi connections to the boys, they were regarded as a “whānau placement” and, at the time, it was not compulsory for foster parents involved in whānau placements to be given training.

[11]   Even with experienced and trained foster parents, this placement would still have required intensive support from OT to be successful. X and Y’s position is that the support they received was inadequate and did not meet OT’s own best practice guidelines.

[12]   Perhaps inevitably, the placement failed, various allegations were made by the children including of physical mistreatment, and the children were abruptly removed from the care of X and Y in September 2013. That action put in train a series of processes which ultimately resulted in X and Y commencing these proceedings.

[13]   One of the processes that the parties went through following the removal of the children was a review by the Chief Executive’s Advisory Panel. That panel produced a report dated 20 October 2017 (the “Panel Report”). It made six separate recommendations. The decision made by OT in response to those recommendations is the subject of the judicial review cause of action in these proceedings.

The causes of action

[14]   X and Y have pursued three separate causes of actions against OT. They give rise to a number of novel or difficult issues including whether one of the causes of actions is time-barred under the Limitation Act.

First cause of action

[15]   X and Y claim that OT’s investigation into the various allegations against them, the process of it preparing a Caregiver Assessment Report, and OT’s decision to revoke their caregiver  approval was  a breach of  their right to natural justice under  s 27(1) of the Bill of Rights Act 1990.

Second cause of action

[16]   It is alleged that OT owed X and Y a duty to take reasonable care to minimise the risk of placement failure, and breached that duty, causing them to suffer loss.

Third cause of action

[17]   This is an application for judicial review of OT’s actions and decisions in relation to the Panel Review Report alleging that, in making its decisions on that report, OT failed to take into account relevant considerations or to provide sufficient reasons.

Relief

[18]   The applicants seek several different types of relief. In relation to damages arising under the first cause of action, Y seeks Baigent damages1 of $35,000 for a failure to interview him as part of OT’s investigation into the complaints raised against him and X, and/or to provide him with an adequate opportunity to be heard before the issue of Caregiver Assessment Report.

[19]   X and Y jointly seek Baigent damages of a further $35,000 in relation to alleged breaches of natural justice including:

(a)alleged failure to conduct a thorough investigation before concluding X and Y had committed certain acts;

(b)alleged failure by OT to adopt and apply an appropriate standard of proof;

(c)the conducting of the investigation without an open mind; and

(d)failure to provide X and Y with an adequate opportunity to be heard in response to the Caregiver Assessment Report before revoking their caregiver approval.

1      See Simpson v Attorney-General [1994] 3 NZRL 667 (CA).

[20]   Under this cause of action, X and Y also seek a declaration that OT breached their rights to natural justice.

[21]   Under the second cause of action (negligence), as pleaded in the amended statement of claim dated 15 June 2020, X and Y seek general damages of $130,000 for disruption, loss of dignity, inconvenience, mental distress, anxiety, and humiliation.

[22]   In relation to the third cause of action, X and Y seek a declaration that OT’s failure to implement the recommendations of the Advisory Panel was unlawful, and an order requiring the Chief Executive of OT to reconsider her response to the recommendations of the Advisory Panel in light of the Court’s judgment.

The respondent’s position

[23]   OT opposes all of the causes of action and also submits that one of the applicants’ claims is time-barred under the Limitation Act 2010. The respondent concedes that there were some shortcomings in its handling of the case but maintains that:

(a)that OT’s actions during its investigation into the allegations of abuse did not breach the applicants’ right to natural justice;

(b)this case is fundamentally unsuited to a claim of negligence – there is no duty, breach, or causation and the better alternative approach is to seek a review from the Ombudsman; and

(c)that there was no general principle in law that the Chief Executive of OT, when making her decision, had to provide sufficient reasons – instead the assessment was whether her decision was unreasonable in the Wednesbury sense – which counsel submitted that it was not.

Factual background

The boys and their needs

[24]   At this point, it is useful to provide some more detail about facts that are relevant to these proceedings. All of the boys had, prior to their placement with X and Y, experienced serious neglect and physical abuse. Their early life experience had produced a number of anti-social or aberrant behaviours. The HCN report prepared by OT described them as “highly traumatised children”.2 They would grab food off the table and take it to somewhere away from their siblings to eat, and steal food and hoard it. They would at times make stories up and would model to each other the sort of abusive behaviour they had experienced, including sexual abuse. They were not used to having structure or discipline in the home environment.

[25]   They also had a range of physical disabilities. B had been diagnosed with anxiety, ADHD, PTSD and epilepsy. One description of B in a HCN report was that he:

…comes from a deeply entrenched pattern of domestic violence; this is seen in how [he] communicates with his siblings and others. In order for [B] to get his needs met he has learnt the pecking order behaviour from his family of origin based on the oldest (biggest) [being] abusive to the youngest (smallest). As a result of the family’s culture, [B] lacks any self-regulation, interpersonal and conflict skills.

[26]   The same report described B as having “extreme anxiety and [being] in a constant state of hyper-arousal”. It is not necessary for the purposes of this decision to detail all of the other children’s behavioural problems beyond stating that they each had their own behavioural issues arising from a background of extreme deprivation and abuse. They also had some specific medical issues.

[27]   B and C needed to have teeth removed due to a health condition. B had issues with self-harm, and A was receiving counselling and mentoring to address anger issues. He had also been diagnosed with foetal alcohol syndrome, ADHD and a speech impediment. All the children were significantly developmentally delayed. To give an

2      HCN refers to the High and Complex Needs Unit. Although based at OT, it consisted of members drawn from other organisations as well as OT. It was able to provide additional funding in complex cases.

indication of what this meant in practice, a report from the Child and Adolescent Mental Health Service described seven-year-old B as “fragmented and relating at the level of a two to three-year-old child”. C, who was four when the placement started, had severe speech and language difficulties and, as at May 2012, only one of four words he said was intelligible. The younger boys lacked basic knowledge such as the names of colours and vegetables. When the boys arrived from the CYF family home, X and Y said they had eczema, sores and lice.

[28]   While counsel for OT fairly made the point that all children who have come into care as a result of neglect and abuse are likely to have been damaged in some way by their home environment and claimed that therefore there was nothing unusual about these children having behavioural issues, by any yardstick, the extent and combination of the challenges presented in this case was extreme and, if the placement was going to succeed, it would have been abundantly clear, right from the start, that the caregivers would need intensive professional support. I specifically reject the evidence of the caregiver social worker who claimed that there were no indicators that this placement was going to be difficult. OT’s contemporaneous documents reveal that OT was aware that X and Y taking on the care of these four boys was a huge undertaking requiring “wrap around support”.

[29]   The nature and extent of the children’s medical and behavioural issues is an important issue in these proceedings. X and Y alleged that the full extent of the medical and behavioural issues were not disclosed to them. X and Y say that they were not informed of D’s sexualised behaviour towards the younger children that had occurred at the OT Family Home. OT referred to a file note which records that X was informed by telephone about “[D] touching his younger siblings”. X has no recollection of such a telephone call and said that even if those words had been used in a telephone call to her, she would not have understood them to mean that D was engaging in the type of inappropriate sexual activity that OT was aware had occurred with his siblings.

[30]   X and Y say that at the time the children’s placement with them commenced, they were not provided with care plans or the medical or educational history of the children, and did not receive orientation or caregiver training.

[31]   A care plan would include information about a child’s disabilities, health needs and medication. In accordance with OT’s policies, they were supposed to be provided at the start of the placement. OT concedes that care plans were not immediately provided but says they were completed in February 2012, November 2012 and September 2013. OT’s records did not identify whether X and Y were provided with the children’s medical or educational records. OT accepts that X and Y did not attend any form of induction but say that this was because of the policy OT had at the time in relation to whānau placements.

[32]   X and Y say that they were not, at the commencement of the placement, advised that they could receive respite assistance from time to time or that they may be entitled to payment of the higher foster care (HFC) allowance. OT’s evidence was that the availability of respite care had been discussed with X and Y in February and September 2012. In relation to the HFC allowance, OT’s position was that X and Y were not in fact entitled to the HFC allowance.

[33]   In relation to respite care, the documentary record indicates that X first made enquiries of her social worker about respite care on 16 February 2012 after its availability had been pointed out to her by an employee from another Government department. Far from receiving a positive response, the social worker’s own notes record the social worker telling X that it was not the role of the employee of the other Government department to advise about respite care. The notes also set out the social worker’s opinion that respite care was not then appropriate as it would be “unsettling for the children”.

[34]   There is no further  mention  of  respite  care  in  any  OT  document  until  25 September 2012.

[35]   OT’s own documentation also records that OT did not take action to find a “parallel family” to provide respite care until December 2012. A “parallel family” is one which would be able to take all four boys and offer a similar home environment to that provided by X and Y. Just as finding someone to take the original placement proved difficult, so too did the task of trying to find a parallel family and ultimately none was found.

[36]   OT’s records contain many references, right from the early days of the placement, that X believed that she needed some respite and was overwhelmed with the number and type of issues, particularly relating to medical and behavioural matters, that she was having to deal with.

[37]   OT was aware of the significant stress that X was experiencing and that the level of stress was such that it was impacting on her marriage.

[38]   Not only was the lack of effective respite causing stress but OT knew that X and Y were under financial pressure. X and Y appeared to have little understanding of exactly what the financial cost to them of looking after the boys would be. OT knew that if they became caregivers, X intended resigning from her full-time employment to focus on the caregiver role and that the family would thereafter become reliant solely on Y’s income. That income was precarious. During the course of the placement, Y’s hours were cut down to three days a week and there was a prospect of him being made redundant. X decided that, in order to meet the unexpected level of costs, she would need to complete the degree in counselling which she had almost finished, and then obtain employment. OT said that X had misled them as to her intentions regarding working at the time of the caregiver approval process. There is no basis for that contention. X’s intention at that time was clearly to give up her paid employment and become a full-time caregiver. It was only in response to experiencing the unexpected level of financial cost that X realised that she needed to go back to work to make ends meet.

[39]   OT also makes the point that the HFC allowance was not an entitlement as of right and not “income”. Those observations are correct but irrelevant.

[40]   It would have been obvious to the social workers who conducted the initial assessment that X and Y were people of modest financial means. They would also have known that the family income was about to be halved if they were appointed caregivers. Unlike X and Y, they would have had an accurate idea of the likely actual costs that X and Y would incur. OT point to the substantial sums that were paid for all the various needs of the boys, and there is no doubt that the extent and variety of the boys’ needs meant that the costs of addressing those needs, as well as meeting all

the normal costs of feeding and clothing four young boys, was substantial. However, there was extra funding that was available. One avenue was through an application to HCN. As early as 11 January 2012, a social worker noted that one of the tasks to be completed was a HCN application. It was some 16 months before an HCN application was successful.

[41]   OT staff were aware right from the beginning that extra financial support from HCN would be needed. On 10 January 2012, following a period of days when the children had stayed with X and Y, a social worker spoke with X. X said that she had some concerns about the children and referred to a number of issues, including that B had soiled his pants, would not eat lunch, and had sores on his legs and back. She asked the social worker for time to think regarding B coming into her care. She said that this was “due to the time and supports he may need and if she is able to provide those supports”. The OT employee “briefly went over the HCN process” and explained to X that the children needed “intense therapy” and that “this is part of the HCN process. X asked about the children having counselling and the employer replied that “this would be part of the HCN process”.

[42]   The HCN application that was submitted over a year after the placement began, lists what OT had identified as the justification for accessing HCN funding. The various reasons include:

·     to ensure sustainability of [B’s] placement with caregivers long term. The relationship between the caregivers is becoming more strained as a result of the amount of time that [B] has been in their care and the amount of normal agency supports in place not meeting [B’s] high and complex needs. There is extra financial pressure upon the caregivers, which makes the commitment to meet the intensive care of [B] high and complex [sic] and this presents as an ongoing concern;

·     to ensure [B’s] (and siblings) caregivers receive specialised intensive supports to continue managing the care of [B’s] (and siblings) complex needs. Local agencies can only provide minimum resources and support which do not meet [B] and his caregiver’s high level of need;

·     [B’s] support needs are that his caregivers receive specialised intensive supports to manage his care through information and kiatautoko support, and regular respite so that caregiver burn-out does not present as an issue.

[43]   There was evidence that the critical time for intensive support was during the first six months of the placement. There was no HCN support during that time. The

respondent’s document recording system, known as CYRAS, had many entries about the delays with the funding applications. One on 21 November 2012 recorded, “Indications are that HCN will not provide what is needed to meet this family’s high and complex needs”.

[44]   The HCN plan was not approved until 29 May 2013 and the first payments of HCN funding were not made until 30 May 2013.

Caregiver social worker

[45]   OT’s policies at the time provided that not only would children being placed in foster care have their own social worker but that caregivers would also have a “caregiver social worker”. The policies specify that caregiver social worker home visits should occur bi-monthly. The only home visits recorded in CYRAS were on  12 February 2012 and 29 April 2013. X and Y accept that the children’s social workers visited more frequently but said that these visits were usually fleeting and for a particular purpose such as to transport the children to medical or other appointments, or to take the two younger children to their pre-school day care. The limited number of home visits by the caregiver social worker was not in accordance with OT’s best practice. Had those visits occurred in accordance with OT’s policy, then a number of the issues which led to the ultimate removal of the children may well have been able to be addressed before they became problems.

Training

[46]   Both parties agree that X and Y did not receive any training either prior to or after they commenced as caregivers. However, they differ as to the reasons for that. OT say that X and Y were offered training on numerous occasions but declined to attend.

[47]   The evidence discloses that training was discussed with X and Y at the initial interview on 17 November 2011. The notes of that interview record that X was “interested in attending any training that would support her in her caregiver role”.

[48]   An OT social worker accepted that the only document from OT’s records that referred to training was a letter dated 30 January 2012 but that did not explain when or where training would take place and what X and Y needed to do in order to enrol in it. OT’s claim that training was offered but declined is not supported by anything in CYRAS.

[49]   Counsel for X and Y referred to evidence from OT’s witnesses that children in care can sometimes make false allegations and that training would have provided X and Y with skills to protect themselves against such allegations.

[50]   Another matter relevant to the issue of training was whether or not X and Y were provided with a copy of the foster care handbook. A social worker said that she posted a copy of the handbook to X and Y and relied on a letter dated 30 January 2012 referring to a copy of the handbook being included with the letter.

[51]   X’s evidence was that she received the letter but there was no handbook with it. The OT social worker accepted, under cross-examination, that the letter was a standard form letter. It also contained a number of errors such as that the children were X and Y’s “nephews”. The expert witness called for X and Y, Ms Pilalis, confirmed that whānau caregivers often report that they had not been provided with a copy of the handbook.

[52]   It is not possible, on this conflicting evidence to confidently reach a conclusion as to whether the handbook was sent or not. If it had not been received and had the social worker made the required bi-monthly visits to X and Y, the concerns that emerged might have been picked up and remedied.

The allegations

[53]   From about May 2013, OT’s records indicate that concerns about a variety of matters were being recorded. For example, on 23 May 2013, a social worker recorded that there were “concerns about children’s behaviour deteriorating and also caregivers not providing lunch”.

[54]   On 2 August 2013, this concern was restated as being “food an issue – children not wanting/liking jam sandwiches all the time”. There were also notes that the “caregivers fixed around a certain approach” and that a support worker was to meet with X and Y “a few more times to support them”.

[55]   The HCN plan, which was finalised after the allegations were formally made, contained a passage which read:

It has been noted that the caregivers are fixed in their ideas and approach to parenting and it has been difficult to impart the specialised knowledge and skills as a result. Concerns raised that [B] and siblings are being punished for behaviours that are part of their medical, psychological and learning conditions.

[56]   This paragraph implies that there had been efforts “to impart specialised knowledge and skills”. There is no documentary evidence explaining what efforts these might have been. X and Y did not receive any training and they were not sent on any specialised courses.

[57]   The fact that X and Y held old-fashioned or traditional views should not have come as a surprise to OT. Indeed, the fact that they lived on a marae and followed traditional tikanga Māori were features that OT saw as significant positive factors when they were initially assessed as caregivers.

[58]   Punishment for behaviours that were part of the medical, psychological and learning conditions of the children might have been avoided had there been proper care plans prepared in advance of the placement commencing and specialist assistance given to X and Y as to how to address medical conditions that they had no prior experience of, and behavioural and learning difficulties that they had not previously encountered and had little idea how to address. Had these concerns been individually addressed on the first occasion they arose, and had HCN funding for specialised assistance been available when it was initially sought, the problems may have been able to be solved or at least positively addressed.

[59]   On 26 August 2003, C is reported to have made an allegation to a teacher aide that X hit him on the nose while he was in the shower. The teacher aide did not think the matter serious enough to report further but mentioned it to a social worker who

visited the school a fortnight later on 10 September 2013. The social worker prepared a Report of Concern about this allegation. The report also noted:

[C] and his other siblings at the School had disclosed that they are sick of jam sandwiches for their lunches and told the teacher and social worker they are scared of telling [X].

[60]   By chance, X visited the OT office on 12 September 2013. She was called to a meeting and told that C had alleged physical abuse by her. She was not given dates or further details beyond that the allegation was she had hit C.

[61]   The process followed by OT in investigating this matter was that two social workers, who had not previously been involved with the family, interviewed B and C on 17 September 2013. The notes of the interview with B record some answers that were uncertain and contradictory. For example, when asked about his school lunches, his answer is recorded as being “[X] makes my lunch. Jam sandwich every day – pretty boring, chippies, muesli bar and fruit – can’t eat it all.” There is another inconsistent statement in the same notes. The notes record B saying, “No, peanut butter” when asked whether sandwiches prepared for him by X had jam.

[62]   When asked the question, “[C] said [X] had hit him, do you know anything about that?” B’s answer is recorded as “I do”. When asked “Did you see her hit him?”. His answer is recorded as being “No.” When asked whether C told him about the incident, he answered “No” but added that he saw some blood in the shower. When asked whether he had seen X hit C at any other time, his answer was “No”.

[63]   OT’s notes record that the investigating social workers also met with B’s teacher on 17 September 2013 and she reported a discussion with B where he said X had held his head in a bucket of water and made him have a cold bath. This was said to have occurred after “swimming finished”. B was also reported to have said that he and his siblings’ ears were pulled by X and Y as a form of punishment.

[64]   The investigating social workers interviewed C on 17 September 2013. He was then aged six. When asked about the incident, the notes record C as saying that X “smacked me once on the nose. Had my head down. It hurt me.” When asked if  he had been smacked any other times, the notes record him saying, “Yea – on the

bum”. When asked whether X ever pulled his ears, he said “Yeah she did – heaps of times”. When asked whether he liked X, the notes record him as responding “Yea”.

[65]   The notes also record that “[C] has very little speech (vocabulary) and was difficult to understand”.

[66]   A was interviewed on 19 September 2013. When asked about what he had for school lunches, his answer is recorded as being “sandwiches/fruit/bars/biscuits”. The notes record A as saying that he was disciplined by way of cold shower, being made to stand in the corner and having his ears pulled. He also referred to a bucket of cold water being tipped on him. He does not seem to have been asked any questions about the incident with C.

[67]   On 25 September 2013, the investigating social workers met with X. Their notes of the meeting record that a wide range of concerns, almost all of which had not previously being signalled to X were discussed.

[68]   Each of the investigating social workers made notes. The notes are very far from a verbatim transcript (one runs to ten and a half pages of handwriting and the other only one page). They are also inconsistent. The longer sets of notes records X’s response to hearing all of the new issues as being “[X] expressed “oh my gosh” – a degree of shock”. It also contains a comment that X “shed a tear”. The one-page set of notes had entries including “showed no emotion”, “no emotional attachment”, “no change facial expressions – no shock”, and “not shocked about police involvement”.3 That set of notes in particular contained virtually no record of the explanations put forward by X. The majority of the jottings were judgmental such as “lack understanding of develop [sic] needs”, “house had no evidence that 4 children live there”, and “no understanding of the role of caregiver”.

[69]   In relation to the allegation that X had hit C, the notes record X as saying, “[C] woke up with dried blood nose, which I wiped with a wet wipe. No shower in the morning for [C]”.

3      The “police involvement” refers to the fact that, at the meeting, OT had told X that they had referred to allegation of her hitting C to the police for them to investigate.

[70]   In respect of the allegations relating to cold showers/bucket of cold water, the notes have an entry “cold shower – down at creek after swimming”. X acknowledged that after the boys had been swimming in the creek she would hose them with cold water.

[71]   X acknowledged that she was strict and required the boys to do chores. She denied that she had pulled the boys’ ears.

[72]The notes also record X’s comments:

(a)that she had “no training”;

(b)that she was given “no direction” about caregiver’s role;

(c)that she couldn’t get any response when contacting the social workers by telephone and would drop into the office; and

(d)“no respite for a whole year. Hard yakka not having a break”.

[73]   The notes refer to X and Y being frequently grumpy and arguing. They record X’s response to this allegation as being:

This year [Y] was diagnosed with prostrate [sic] Cancer. I was scared. He wanted me to give up the kids.

[74]   The notes of the interview with A on 19 September 2013 record that in answer to the question “Do you think [X] wanted you to be there?”. The answer “She didn’t know sometimes who to look after us or her husband”.

[75]   The investigating social workers produced a draft outcome report and met with X to read it to her.

[76]   Counsel for X and Y submitted that the draft outcome report included “A compendious list of allegations to a level of detail that is not reflected in the notes of the interviews”. And that “No attempt is made at balancing those allegations against the version of events offered by [X] during her interview, or against the contrary

comments  found  in  the child interviews”.    There is some justification for those comments.

[77]   Notwithstanding that some of the allegations were relatively trivial (such as that the boys had their school lunches packed into ice-cream containers rather than lunch boxes and that they did not receive afternoon teas), all of the allegations were collectively described as “ongoing abuse”.

[78]   There is no analysis of the various explanations put forward by X, or acknowledgement that the statements made by the children were at times conflicting and inconsistent. There is also implied criticism that X and Y did not provide warm bedding for the children with the inclusion in the list of concerns a statement that “Comments made about warm beds at caregiver now”. This comment overlooks the statement of A at his interview on 19 September 2013 when he was asked “Enough blankets on the beds [at X and Y’s place]?” and is recorded as having responded “Yip”.

[79]   It could be said that the report lacks balance in the sense that there is little acknowledgement of the positive outcomes achieved during the placement with X and

Y. The closest there is to an acknowledgement seems to be the statement:

Whilst the school have reported major improvements in the children’s behaviour over the past six month period, they have noticed that the children appeared to be much happier since they have been removed from [X’s] care.

[80]   The report notes X’s response that she had not completed any caregiver training and was not offered any, and that she did not get enough support from CYF in the first 12 months and was “continually ringing for support and … her calls were not responded to”. Later on, the report acknowledges that:

Over the past 12 months period, CYRAS records show during the initial period of the children being placed in the home, there was very little recorded information in regards to the communication between the caregiver and the social worker.

[81]   The report implies that the lack of contact and support was X’s fault rather than anything to do with OT. It stated:

Whilst [X] indicated there was no support, she could have spoken with Social Worker [sic] on a daily basis to request extra support.

[82]   This comment overlooks the fact that OT’s records disclosed that right from the earlier stages X had raised a range of concerns with OT but there had been little progress in resolving them, including in respect of such important matters as an opportunity for respite.

[83]   The report contains a number of judgemental conclusions including that, “[X] did not appear to be shocked by any of the allegations”. As noted above, that is contrary to the written comments of one of the investigating social workers at the interview.

[84]   The findings of the report stated that X lacked understanding “of what constitutes abuse” and that:

[X’s] old fashion parenting and principles are not appropriate in today’s world; this should have been discussed with her at the time of going through the approval process to become a caregiver.

[85]   Rather than constituting evidence of “abuse” by X, these comments would appear to be reflective of the fact that OT entrusted X and Y, two mature people with no experience of caregiving, with the responsibility of providing care for four boys, all of whom had challenging behaviour and complex needs, without giving them any training and without a thorough screening process. If a comprehensive analysis of X and Y’s attitude to matters such as discipline and parenting had been undertaken, it would have identified that they held “old-fashioned” attitudes to many aspects of raising children, attitudes that were now being characterised as emotional and physical abuse.

Challenge to process

[86]   X’s counsel advanced a raft of complaints about the investigation process. These included:

(a)a failure to provide full details of the concerns prior to the interview on 25 September 2013;

(b)making a number of subjective and unreliable assessments of X’s demeanour at the interview;

(c)not inviting Y to the meeting and conducting the meeting without seeking any input from him;

(d)making findings critical of Y without providing an opportunity for him to respond to them, and demanding that X provide her response to the Draft Outcome Report within five working days of the meeting.

[87]   After the meeting, X sought an extension of time to provide her response. She did so by leaving a telephone message with one of the investigating social workers. She received no response.

[88]   X and Y say that the time given for her to respond was unreasonably short, it was shorter than the time set out in OT’s guidelines and that there was no reason why her request for extension should not have been granted given that, by this time, the children and their belongings had already been uplifted and the children told that they would not be returning to X and Y’s care. They also called expert evidence to the effect that it is not uncommon for extensions of time for a response to be granted.

[89]   The decision of 14 October 2013 acknowledged that X had contacted the social worker and had asked for an extension of time and it then said, “I have taken this into consideration; however the findings of the investigation will remain the same”. No explanation for refusing the request for an extension of time was provided in that letter.

[90]   X provided evidence of the negative effect that the allegations’ investigative process had on her including the loss of her employment and inability to obtain another job. This was said to have resulted from the fact that given the type of work for which she was qualified entailed a police vetting process, the fact that the police file noted that there had been an allegation of child abuse made against her meant that she could not get work.

[91]   No evidence was given by Y at the hearing, the reason for that being that subsequent to the uplifting of the children, Y had suffered a severe stroke and was not up to the task of giving evidence.

First cause of action

Plaintiffs’ position

[92]   X and Y relied on s 27(1) of NZBORA, and the right to natural justice. An argument was developed that this principle was especially important where the allegations were serious and involve matters of a criminal nature.4

[93]   It was submitted that this was a case where credibility was in issue and in such cases a fair opportunity to answer the accusations required an “oral hearing” such as an interview.5

[94]   It was submitted that, if OT were going to make adverse findings about Y, it was their obligation to interview him and obtain his response rather than Y’s obligation to seek them out and demand an interview.

[95]   Counsel drew the Court’s attention to the fact that although the investigation was commenced as a result of one incident involving C, the report’s conclusions were that all the children were likely to have been abused by X and Y “both emotionally and physically” and that conclusion went well beyond the original allegations.

[96]   OT’s policies say that the final decision must be sent “within 30 working days of the notification being received” in this case, the formal notification was received 11 September 2013, 30 working days from which was not until 22 October 2013 yet X and Y were only given until Friday 11 October 2013 to respond to the Draft Outcome Report. The decision was sent on Monday 14 October 2013.

4      Relying on Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR 662 (PC) at 671.

5      Relying on T v Refugee Status Appeals Authority [2004] NZAR 552 (HC) at [18].

Respondent’s position

[97]   The respondent submits that there was no breach of natural justice for three reasons:

(a)Y had reasonable opportunities to attend meetings at OT in respond to the draft Caregiver Assessment Report;

(b)X had opportunities to respond to the essential allegations in the draft Caregiver Assessment Report and that “A swift decision was in the best interest of the four children”; and

(c)natural justice does not demand a particular forensic, investigative process. The process was appropriate in the circumstances.

[98]   The respondent accepts that Y was not present at the meeting on 12 October 2013 but says that OT endeavoured to involve him but this was not possible. OT relies on X’s evidence under cross-examination that she did not ask Y to come with her to the second meeting. It was submitted that OT “…endeavoured to involve [Y] but it was not possible as he was working and there were time constraints”. The evidence in support of this submission is said to be an email from a social worker to various others at 5.30 pm on Thursday, 12 September 2013. That email advises that the four boys had been uplifted from the care of X and Y that day. The relevant sentence says, “We had endeavoured to involve [Y] but he was at work and there was limited time”. It is clear that this reference to involving Y solely relates to the decision to uplift the children and has nothing to do with inviting Y to either the first or second meeting.

[99]   Counsel for OT submitted that natural justice does not provide an affected party a right to respond before a decision was made but only requires a right to be given “a reasonable opportunity to do so”. Insofar as Y is concerned, I am satisfied that he was not given any opportunity, reasonable or otherwise, to respond to the allegations against him.

[100]  While it may have been reasonable for OT not to alert Y that the children were about to be uplifted because of the fact that he was at work at the time, there is no

excuse for OT not inviting him to a meeting or even informing him of the nature of the allegations against him.

[101]  Neither is there anything in the principle that the welfare of the children is paramount that would override Y’s right to know of the allegations against him and be given a reasonable opportunity to respond. There is nothing in the respondent’s submission that it was “…in the interest of the children in order to provide certainty in their lives” that Y not be given any opportunity to respond to the allegations against him.

[102]Counsel for the respondent relied upon evidence given by a witness who said:

It is important for tamariki to know if they are able to get on with their lives with their current caregiver or if they will have new caregivers.

[103]  None of this has any application to Y (or X for that matter) as the evidence was that the children had been told, at uplift, that they would not be returning to the care of X and Y, and all of their belongings were immediately removed.

[104]I conclude that Y’s right to natural justice was breached by:

(a)not being invited to any meeting to respond to the allegations against him;

(b)not being informed of the nature of the allegations against him; and

(c)not being informed that unless he attended a meeting and/or provided an explanation abuse findings were liable to be made against him.

[105]  In relation to X, the issue is whether in the circumstances she had a reasonable opportunity to respond to the allegations against her.

[106]  I accept that the requirements of natural justice are always contextual.6 I also accept that in circumstances such as these, natural justice does not demand a particular

6      Dotcom v United States of America [2014] NZSC 24; [2014] 1 NZLR 355 at [120].

forensic investigative process. However, the allegations against X were serious. It was alleged that she had engaged in conduct amounting to a criminal offence.

[107]  There is force in the submission of X’s counsel that there appears to have been little attempt to analyse the inconsistencies in the children’s evidence or to relate such explanations as X gave to other evidence. To the extent that the decision relies on what was said to be a lack of emotional response by X to the allegations, it is inconsistent with the notes made by one of the investigative social workers at the time. It is also concerning that OT have lumped together a number of disparate allegations and concluded that they amounted to physical and emotional abuse.

[108]  Counsel for OT emphasised a point which had been made by witnesses for the respondent, which was that when children made a complaint, they needed to be listened to. It almost seemed to be the respondent’s view that if children made an allegation that was enough and it was not necessary to analyse and weigh the allegations against all the contrary evidence. Counsel set out a passage from the Caregiver Assessment Report which said:

[X] went through each allegation giving explanations of the boys’ behaviour and her own. [X] gave what appeared to be valid explanations, but these did not reflect the allegations and explanations made by [B] and [A].

[109]  Counsel’s submissions then referred to the evidence of the decision-maker and it was said that she engaged in an exercise of:

Weighing the voices of the children clearly saying they were hurt against these caregivers saying they didn’t harm them, I have to believe the voices of the children and ensure the safety of the children.

[110]  OT never heard Y’s voice because they did not talk to him. They did not hear X’s voice fully because they unreasonably declined her request for an extension of time to respond to the allegations. As noted above, there was no particular time pressure and the deadline for response insisted upon was less than the time limits specified in OT’s policies.

[111]  I accept the submissions of the respondent’s counsel that the rules of natural justice do not incorporate technical rules of evidence applicable to civil or criminal litigation.7 The issue is whether there has been a fair process.

[112]  Counsel also submitted that there was no evidence that the investigation was not conducted with an open mind. This submission overlooks the fact that the children were told, at the time of uplift, that they would not be returning. That does indicate a degree of predetermination.

[113]  On the facts of this case, I conclude that so far as both X and Y are concerned, the process followed was not fair.

Remedy

[114]  By way of remedy, X and Y seek both a declaration that their rights to natural justice had been breached and damages as detailed above.

[115]  Counsel for X and Y acknowledges that damages are likely to be rare for a breach of s 27(1) NZBORA, but submits that this is because most commonly, a breach of natural justice occurs in circumstances where an alternative effective remedy such as the exclusion of evidence in a criminal trial is available. Counsel refers to the Court of Appeal’s decision in Combined Beneficiaries Union Inc v Auckland City COGS Committee where damages were held to be appropriate for a breach of s 27(1) where there was no other effective remedy.8 Counsel also relies on the comments of Blanchard J in Taunoa v Attorney-General that in some cases, unless there is a monetary award, there will be insufficient vindication and the victim will be left with a feeling of injustice.9

[116]  It was submitted that X had suffered significant emotional distress as a result of the decision to remove the boys from her care. It was also submitted that a finding of child abuse (which was essentially the finding here) had an undeniable moral

7      Re Erebus Royal Commission; Air New Zealand Ltd v Mahon, above n 4, at 671.

8      Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423; [2009] 2 NZLR 56 at [67].

9      Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 at [255].

dimension. The inference was that because of the breach of the rights guaranteed by s 27 NZBORA, there was no proper basis for the conclusions reached in the investigation.

[117]  It was submitted that damages were required in order to act as an incentive to OT and other State agencies not to repeat the infringing conduct.

[118]  The respondent opposed an award of damages on a number of grounds. The first ground being that any award of damages would cut across the established law of negligence which it was said had consistently denied the award of damages in respect of investigation into abuse allegations; and secondly, it was submitted that the facts of this case did not come close to the high threshold required before damages can be awarded for a breach of natural justice.

[119]  The respondent also relied on some comments from Blanchard J in Taunoa v Attorney-General that NZBORA damages should not be allowed “to perform the function of filling perceived gaps in the coverage of the general law”.10

Analysis and conclusion

[120]  The current position of the law in relation to Tort claims regarding investigations into child abuse does not support the availability of damages or even the existence of a duty of care. This is on public policy grounds. In B v Attorney- General, the Privy Council held:11

…their Lordships consider no common law duty of care was owed to the father. He stands in a very different position. He was the alleged perpetrator of the abuse. In an inquiry into an abuse allegation the interests of the alleged perpetrator and of the children as the alleged victims are poles apart. Those conducting the inquiry must act in good faith throughout. But to impose a common law duty of care on the department and the individual professionals in favour of the alleged victims or potential victims and, at one in the same time, in favour of the alleged perpetrator would not be satisfactory.

The Court therefore needs to be alive to the prohibition on awarding damages to fill a perceived gap in remedies available at common law.

10 Above n 9, at [259].

11     B v Attorney-General [2004] 3 NZLR 145 at [30].

[121]  I accept that the authorities cited by counsel confirm that NZBORA damages for breaches of s 27(1) are rare and generally confined to circumstances where there is no other effective remedy. In this case, the issue is whether or not the declaration sought by X and Y could be described as an effective remedy.

[122]  In this regard, Blanchard J in Taunoa v Attorney-General emphasised that “A declaration is not toothless” and that damages for a breach of s 27(1) would only be awarded where a declaration was not an effective remedy.12

[123]  It is not alleged by X and Y that OT acted in bad faith, however, I have found that in not providing an opportunity for Y to be heard and in not acceding to X’s reasonable request for an extension of time to make a full response to the allegations, their rights under s 27(1) were breached.

[124]  In terms of ensuring that OT does not repeat the failings identified in this decision and deterring other State agencies from following a similar course, a declaration is likely to be more effective than an award of damages. A declaration also amounts to a vindication for X and Y. If nothing else, it may go some way to restoring the mana of the plaintiffs in the circumstances. Accordingly, I decline to award damages but make a declaration in the following terms:

In making a finding that X and Y had physically and emotionally abused the four children in their care and removing the children from that care without interviewing Y or inviting him to a meeting where he could put forward his response to the allegations and, in failing to accede to X’s reasonable request for an extension of time to provide a response to the allegations against her, the respondent breached their rights under s 27(1) of NZBORA.

Second cause of action

[125]  The plaintiffs’ second cause of action is in negligence. This cause of action focuses not on the events that occurred at the termination of the placement but on the

12 Above n 9, at [259].

acts and omissions of the respondent either prior to, or during the course of the placement.

[126]As pleaded, the duty of care is said to contain the following elements:

At all material times, the defendant owed the plaintiffs a duty to take reasonable care to minimise the risk of placement failure, including, in particular, to ensure that the plaintiffs:

·     were provided with sufficient information to enable them to care for the Children;

·     received sufficient training to enable them to care for the Children;

·     were provided with sufficient available financial resources to enable them to care for the Children;

·     had sufficient contact with social workers to enable them to care for the Children; and

·     were provided with sufficient support to enable them to care for the Children.

[127]  As counsel for the plaintiffs acknowledged, a finding that a duty of care in negligence existed on these facts would be novel.

[128]  As well as asserting that no such duty of care exists, the respondent also raised a limitation defence.

[129]  Claims in negligence seeking a remedy of damages are governed by s 11 of the Limitation Act 2010. That section provides:

It is a defence to a money claim if the defendant proves that the date on which the claim is filed is at least six years after the date of the act or omission on which the claim is based (the claim’s primary period).

[130]  It is therefore necessary to consider whether the negligence claim was filed within a period of six years after the date of the act or omission upon which the claim is based.

[131]  In addition to considering the date upon which the proceedings were commenced, the plaintiffs also rely on s 47 of the Limitation Act which provides a claimant with a fresh claim in the event that the defendant has “acknowledged to the

claimant in writing a liability to, or the right or title of, the claimant”.13 Here, it was alleged that the letter written by the Chief Executive of OT on 9 May 2018 amounted to an acknowledgement of liability so as to trigger s 47 of the Limitation Act.

[132]  The plaintiffs’ counsel also relied on the fact that the plaintiffs were not represented by counsel as at the date the proceedings were commenced.

[133]  It was also submitted that as the events giving rise to the first cause of action fell within the time limit:

The same should also apply to the second cause of action, which concerns a series of acts and omissions over a period of time arising from the continuing relationship between the parties.

[134]  It was submitted that the relevant act or omission for limitation purposes should be taken from the date on which the relationship ceased, namely 14 October 2013, when the plaintiffs’ caregiver status was revoked by the respondent.

Analysis and conclusion

[135]  As pleaded, the negligence claim is based on acts or omissions occurring between 17 November 2011 and 12 September 2013 when the children were uplifted. No act or omission occurring between 12 September 2013 and 11 October 2013 when the decision to revoke the plaintiffs’ caregiver status was made is relied upon as an available act of negligence.

[136]  The statement of claim was filed in the local registry of the High Court at on 11 October 2019. It was accepted for filing and forwarded to the Wellington registry. On 14 October 2019, the Wellington registry rejected the document on a technicality, namely that the addresses of the parties were not recorded on the intituling on the front cover of the statement of claim. This oversight was corrected on the version of the statement of claim filed on 23 October 2019.

[137]  The respondent initially took the point that the rejection by the Wellington registry pushed the date of filing out to 23 October 2019. The plaintiffs referred to

13     Limitation Act 2010, s 47(1)(a).

r 1.5(1)(b), High Court Rules 2016 which provides that non-compliance with the High Court Rules does not nullify the proceeding, any step taken in the proceeding or any document in the proceeding.

[138]  Counsel submitted that it would have been open to the registry to accept the document for filing and manually correct the intituling at the direction of the plaintiffs.14 Reliance is also placed on the observations of Asher J in Cooke v Department of Health where he said the Court does:15

…not regard intituling as a matter of precision, dictated to the word by the Rules, other than in respect of the names and capacities of the parties, where the detail is important.

[139]  I note that in its Civil Pecuniary Penalties Issue Paper, the Law Commission discussed the balance between the interests of the defendant and plaintiff where limitation periods may apply:16

Limitation periods are required to achieve certainty and finality, particularly for defendants. By providing claimants with an incentive to bring their claims without delay, limitation periods ensure claims are decided on fresh evidence, minimising the potential for injustice to the defendant by having to defend stale proceedings. They also recognise that, with the passage of years, people should be able to order their lives according to the status quo, without fear of being held to account for ancient obligations. However, limitation regimes must also work fairly for claimants, who have an interest in ensuring they have as much time as possible to seek relief for a meritorious claim.

[140]  In closing submissions, counsel for the respondent accepted that the effective date of filing was 11 October 2019. That is an appropriate concession for counsel to have made. The relevant date for determining whether the proceedings were filed within six years is therefore 11 October 2019.

[141]  In response to the submissions of counsel for the plaintiffs emphasising that the plaintiffs were, at the time of filing, unrepresented by counsel, the respondent refers to the fact the High Court Rules do not distinguish between represented and

14     High Court Rules 2016, r 1.9.

15     Cooke v Department of Health (2007) 18 PRNZ 702 at [21].

16     Te Aka Matua o te Ture|Law Commission Civil Pecuniary Penalties Issues Paper (NZLC IP33, 2012) at 7.83 (footnote omitted).

unrepresented parties, and relies, by analogy, on Barton v Wright Hassall LLP where the UK Supreme Court said:17

The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights, under the Limitation Acts for example.

[142]  In relation to the plaintiffs’ claim that s 47(1)(a) of the Limitation Act applied, the respondent’s position was that this provision only applies if the respondent acknowledges a legal liability to pay. In support of this submission, the respondent relied on the cases of Inicio Limited v Tower Insurance Limited18 and Eversons International Limited v Bionutrient Customs Limited19 where the New Zealand Courts had considered the case law under the equivalent provision of the UK Act (s 23(4) of the Limitation Act 1939).

[143]  The Courts had referred to a statement by Kerr J in Surrendra Overseas Limited v Government of Sri Lanka where the Court had said:20

What I draw from these authorities, and from the ordinary meaning of “acknowledges the claim” is that the debtor must acknowledge his indebtedness and legal liability to pay the claim in question …he can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover.

[144]  The respondent also relied on the Supreme Court of Canada decision in Ryan v Moore where the Court said:21

…a person can acknowledge as a bare fact that someone has asserted (by making a claim) a cause of action against him, without acknowledging any liability. Simple acknowledgement of the “existence” of a cause of action is insufficient to meet the requirements of [the corresponding Canadian provisions]. Acknowledgement must involve acknowledgement of some liability.

17     Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 WLR 119 at [18].

18     Inicio Limited v Tower Insurance Limited [2020] NZHC 90 at [37]

19     Eversons International Limited v Bionutrient Customs Limited [2020] NZHC 2989 at [29].

20     Surrendra Overseas Limited v Government of Sri Lanka [1977] 2 All ER 481 at 489.

21     Ryan v Moore [2005] 2 SCR 53; 2005 SCC 38 at [45].

[145]  In analysing the parties’ legal position, it is necessary to look at exactly what the letter from the Chief Executive of OT of 9 May 2018 actually said.

[146]  That letter was the response to the report from the Chief Executive’s Advisory Panel dated 20 October 2017. The Panel consisted of four independent members, all of whom were eminent in their professional fields.

[147]  After an analysis of complaints made by X and Y, the Panel relevantly recommended to the Chief Executive of OT the following:

(a)the report is released to [X and Y];

(b)the Chief Executive apologises to [X] for the failure of Child, Youth and Family to work in partnership with [X and Y] to meet the needs of the children in their care;

(c)for failing to include [Y] in the investigation into their caregiving;

(d)for failing to allow proper termination from their care;

(e)[the Chief Executive] note the range of issues raised about selecting, supporting and monitoring caregivers;

(f)the process of investigation into allegations against caregivers be given due attention in the current review of caregiver services being undertaken by OT to ensure natural justice is served, site independent investigations are undertaken, and both case notes of all investigative procedures and evidence-based decisions, are recorded;

(g)an ex-gratia payment is made to [X] to acknowledge the emotional harm, financial harm and loss of employment suffered as the result of Child, Youth and Family actions/inactions and recompense for the 18-month non-payment of their entitled HFC allowance and costs incurred in the care of the boys;

(h)[OT’s] officials are directed to develop options on how to resolve the disproportionate impact on [X’s] employment and professional aspirations as a counsellor arising from the administration of Part 3 of the Vulnerable Children’s Act 2014 in her case; and

(i)[OT’s] officials to meet with [X] to work through the options with her and reach agreement on a preferred way through.

[148]  The letter indicated that the Chief Executive accepted the Panel’s assessments, conclusions and recommendations 1-4 and partially accepted the recommendations 5-

6. There was an apology:

…for the distress caused by Child, Youth and Family’s failure to follow best practice, specifically not working with [X] and [Y] in partnership to meet the needs of the children in their care, for failing to include [Y] in the caregiver investigation, and for failing to allow proper termination of care.

[149]The relevant passage relied upon by the plaintiffs says:

I have agreed with the Panel that an ex-gratia payment of $5,000 is offered to acknowledge the financial and emotional detriment that you [X] indicated in this complaint. I am unable to provide an ex-gratia payment in respect of employment issues as I cannot oblige employers to treat information they receive as part of safety checking in any particular way.

[150]  The letter concluded with advice that if X and Y were unhappy with the decision, they could seek a review by the Office of the Ombudsman.

[151]  This letter clearly does not acknowledge a liability on the part of OT to pay the sums of money sought by the plaintiffs in these proceedings. It offered an ex-gratia payment of $5000 in respect of financial and emotional harm.

[152]  An ex-gratia payment is a payment “Made as a favor or gift, and not because of any legal duty; not legally necessary”.22

[153]  In McLellan v Attorney-General,23 in interpreting the term ex-gratia, the High Court referred with approval to a decision of a Full Court of the Queens Bench in R v

22     Black’s Law Dictionary (11th ed, Thomson Reuters, 2019).

23     McLellan v Attorney-General [2015] NZHC 3218; [2016] NZAR 859 at [62].

Secretary of State for the Home Department, ex parte Harrison24 where the Court had said: “the very nature of the payments, being by description “ex-gratia” presupposes there is no obligation to make it”.

[154]  The letter with its reference to an ex-gratia payment, therefore does not amount to an acknowledgement to make a payment to the plaintiffs in respect of a legal liability. Section 47 is therefore not available to the plaintiffs. The negligence claim is therefore barred by the Limitation Act and cannot proceed.

Third cause of action

The plaintiffs

[155]  The plaintiffs’ judicial review claim concerns the Chief Executive’s response to the Panel on 9 May 2018, particularly her decision to decline to fully implement two of the Panel’s recommendations – namely, recommendations relating to the making of an ex-gratia payment to X, and that OT officials should be directed to develop options on how to resolve the disproportionate impact on X’s employment and to meet with her on this issue.

[156]  Counsel for X and Y submitted that the essence of the judicial review claim is that the Chief Executive was required to provide adequate reasons for departing from the Advisory Panel’s recommendations, which she failed to do. In particular, in closing submissions, Mr Tocher submitted that there was a distinction between the recommendations made by the Panel and what was actually implemented by the Chief Executive, and no explanation was given for this difference, despite the circumstances requiring them. The failure to give those reasons despite that distinction was the foundation of the judicial review claim.

[157]  Counsel referred to a range of cases which it was submitted indicated that the provision of adequate reasons is a basic feature of good decision-making and an important backbone of the rule of law. In particular, a line of English cases illustrated

24     R v Secretary of State for the Home Department, ex parte Harrison [1998] 3 All ER 86 at [30].

administrative decisions that had been quashed for failing to adequately explain why the decision-maker had departed from recommendations made by advisory panels.

[158]  In R v Avon County Council, ex parte M, the English High Court explained that although not bound to follow a recommendation, a decision-maker is required to take the recommendation of a review panel into account, accord it the required weight and provide a substantial reason if deciding not to follow it.25

[159]  Counsel also referred to the decision of R (A, T and S) v London Borough of Newham as being on all fours with the current circumstances.26 In that case, the claimants were caregivers who adopted the child they were caring for and later sought to adopt the child’s half-sibling. A report prepared by an independent social worker recommended that the claimants were suitable to adopt a child, but an adoption panel determined that the claimants were inappropriate. The claimants applied for review by an independent panel, who recommended approval of the claimants as adopters, providing detailed reasons.

[160]  However, the Head of Service for Children, Young People and Families for the London Borough of Newham disregarded the panel’s recommendation and refused the adoption. The High Court quashed the decision because it did not address “head on” the reasoning and recommendation of the panel, and to reach the decision she did, the Head of Service was required to deal with the panel’s reasoning “by giving clear and cogent reasons for rejecting it”:27

In my judgment, difficult as thought the task of Ms. Dibsdall was – and I have considerable sympathy for her – she simply has not met the weight of the IRM panel's reasoning head on and dealt with it by giving clear and cogent reasons for rejecting it. It was not a question of “conflicting information”, as I have said. It was a question of why the findings and reasoning of the IRM panel was plainly wrong, leading to a rejection of its very strong recommendations. As to number two in her letter, Ms Dibsdall provided no basis or explanation as to why she reached such a conclusion.   As to number three I accept     Ms Fottrell’s submissions. Ms Dibsdall seems to have given little, if any weight to the Claimants understandable feelings that, to put it bluntly, the Defendant was against them and has been since 2001.

25     R v Avon County Council, ex parte M [1994] 2 FCR 259 (QB) at 273.

26     R (A, T and S) v London Borough of Newham [2008] EWHC 2640 (Admin), [2009] 1 FLR 311.

27 At [71].

[161]  In relation to the fifth recommendation (that an ex-gratia payment be made), counsel submitted that the Chief Executive only acknowledged the emotional and financial harm suffered as a result of OT’s actions (by way of a $5000 payment), but did not refer to the Panel’s recommendation that that payment needed to be made in recompense for the 18 month non-payment of the HFC allowance and costs incurred in the care of the children. It was submitted that the basis that Chief Executive had declined to make a higher ex-gratia payment was unclear, as no reasons were given.

[162]  In relation to the sixth recommendation (that OT officials be directed to develop options on how to resolve the disproportionate impact on X’s employment situation and work with her on this issue), it was submitted that the Chief Executive’s statement gave a more “watered-down” direction, asking a regional manager to work with X on this issue. No reasons were given for the “watered-down” direction. The failure to properly implement both parts of the recommendation was said to mean that the regional manager offered no real assistance to X, and X’s evidence was that the manager was more concerned with making the payment of $5000.

[163]  Counsel submitted that proper implementation of the Advisory Panel’s recommendation required OT officials to play a more active role in resolving X’s situation. The manager did not do this. She failed to offer to liaise with police, and was not pro-active in resolving the employment issues X was facing as the Advisory Panel envisaged. Counsel contended that was because she was not directed to do so by the Chief Executive.

[164]  Overall, counsel stressed that the Chief Executive was required to consider and place due weight on the Advisory Panel’s recommendations, which were arrived at following a hearing and which were accompanied by detailed reasons and conclusions. An acceptance of the Chief Executive being entitled to ignore some of the recommendations of the Advisory Panel without providing adequate reasons was said to render the review process an empty ritual.

OT

[165]  Counsel for OT submitted that there was in fact no general principle that a decision-maker must give reasons for departing from the recommendation of an advisory panel.

[166]  Instead, Mr Fong submitted that the real issue in this case was whether the Chief Executive’s decision was unreasonable based on the test articulated in Wednesbury – namely whether it was unreasonable for the Chief Executive as decision-maker to depart from a legally relevant position without good or cogent reasons.

[167]  Counsel sought to distinguish the English cases relied on by the plaintiffs, particularly R v Avon County Council and R (A, T and S) v London Borough of Newham. It was submitted that in Avon County Council, the Council’s decision was overturned by the Court on the basis of Wednesbury unreasonableness (rather than the obligation to give reasons), and nothing in that decision supported a general principle of universal application in relation to the rejection by decision-makers of recommendations by review panels.

[168]  In relation to London Borough of Newham, counsel submitted that this decision was also quashed on the ground of Wednesbury unreasonableness, which further supported the proposition that there was no general duty to provide reasons for departing from the views of an advisory panel, and instead any assessment of this type turned on a straightforward application of the Wednesbury test.

[169]  After addressing these cases, counsel submitted that in the circumstances of this case, the Chief Executive was not required to justify taking a different view from the Advisory Panel’s assertion on what was said to be a “subsidiary point”.

[170]  In terms of the fifth recommendation, counsel submitted that the Advisory Panel’s view on that point was mistaken, and not based on any compelling expert evidence. As a result, the Chief Executive’s decision on the quantum of ex-gratia payment was one that she was comfortably entitled to reach, particularly given that

the HFC allowance was discretionary and only rarely given (rather than being a form of caregiver income), meaning there was no entitlement to it.

[171]  In terms of the sixth recommendation, counsel submitted that the reason that matters did not progress in terms of OT considering why X was struggling to find employment was because she did not properly engage with the manager, and sought legal advice instead. Consequently, it was said that the failure to progress matters further had nothing to do with the Chief Executive’s decision to request further information, and her response was not unreasonable here. Counsel also stressed under this ground that a more appropriate avenue for review was an application to the Ombudsman.

The ‘right to reasons’

Relevant law

[172]  In the text Judicial Review: A New Zealand Perspective, there are several rationales given for a decision-maker to state reasons in a decision:28

(a)to overcome the “real grievance” people experience when they are not told why something affecting them has been done;

(b)to enable those affected to see how the decision was reached and whether some error has been made so as to enable them to make an informed decision on whether to challenge it;

(c)to assist any appellate authority where there is a right of appeal;

(d)to provide a discipline on decision-makers which should promote better decision-making by the knowledge that the process they use will be exposed to analysis by those affected;

(e)to help establish a body of precedent; and

28     Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at 9.05.

(f)to assure the wider public of openness and legitimacy.

[173]  In relation to the content of a right or obligation to give reasons (when available), the author has noted:29

The duty is to “explain” the decision, but not to the extent of a High Court judgment. A logical gap in reasons has been said to vitiate the decision. A statement of reasons saying that the principles in another case had been applied may be adequate. A statement “in accordance with the law, we take them into account” implies that the leading case on the point had been considered. A conclusory statement, recital of submissions plus the conclusion, or a bland statement such as “in light of the person’s circumstances” does not give reasons at all. Adoption of one of two positions without explaining why this was done means the reasons are inadequate and the decision unlawful. If a factor is mandatory, it will ordinarily be necessary for the court or tribunal to refer to it specifically and discuss its significance in the decision. It is not essential that reasons be stated in a document stated to be the reasons. Even where the provision of reasons has been held to be essential for fairness, it has been held that the reasons could be spelled out from a course of correspondence.

[174]  Similarly, in one of the leading English texts on judicial review, the authors have indicated a range of advantages for a decision-maker to give reasons, including that it encourages a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making.30

[175]  The Court of Appeal recently considered the obligation to give reasons in Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel.31 In that case, Mr Belgiorno-Nettis (the appellant) had made a submission to the Auckland Unitary Plan Independent Hearings Panel, who were tasked with making recommendations to the Auckland Council on the Unitary Plan. The appellant challenged recommendations by the panel, and the Auckland Council’s decision based on those recommendations on the basis that neither body gave adequate reasons for the recommendations and the decision respectively.

[176]  The Court allowed the appeal, holding that under the relevant legislation (the Local Government (Auckland Transitional Provisions) Act 2010), the Panel was under

29     At 9.19.

30     Harry Woolf & ors (eds) De Smith’s Judicial Review (8th ed, Sweet & Maxwell, London, 2018)  at [7-095].

31     Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175.

a duty to give reasons for accepting or rejecting submissions on a topic even if those submissions were grouped, and the reasons were of a summary nature:32

We accept the Judge’s observation that it would be sufficient for the Panel to group submissions by reference to “matters” if particular features arising from submissions were stated and submissions on those topics grouped, and reasons on each topic given. Accepting this, there is still a duty to give reasons for accepting or rejecting submissions on a topic even if those submissions are grouped, and the reasons be of a summary nature. If the Judge is indicating otherwise, we respectfully disagree with him. While grouped and summarised reasons could be sufficient in the context of the particular process, some articulation of the Panel’s thinking was required. A reader should understand why a decision such as the zoning and height levels for a significant block of land has been made. This can be in short form, and depending on the circumstances a few paragraphs or even a few sentences may be enough. But the “why” should be stated.

[177]  As part of their analysis, the Court of Appeal considered the relevant case law concerning the obligation to give reasons in New Zealand. They noted that following the case of Lewis v Horton,33 there is no invariable rule in New Zealand outside of specific legislation that courts must give reasons for their decisions, but that where a body is acting in a judicial or quasi-judicial role the provision of reasons can be seen as an aspect of the principle of open justice.34

[178]  The Court also observed that the giving of reasons is important also because if reasons are not given, it is not possible to know whether there has been an error or mistake made by the decision-maker,  and is  instead obliged to  guess  or infer.35    R v Civil Service Appeal Board; Ex parte Cunningham, was also cited:36

…the board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free-wheeling palm tree.

[179]  Finally, the Court acknowledged that on occasions reasons may be abbreviated and that, in some cases, they will be evident without express reference.37

32 At [65].

33     Lewis v Horton [2000] 3 NZLR 546 (CA).

34 At [46].

35 At [48].

36     At [49] referring to R v Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310 (EWCACiv) at 319.

37 At [51].

[180]  In the context of Belgiorno-Nettis, the Court of Appeal was predominantly concerned with the giving of reasons by bodies that had a judicial or quasi-judicial status. However, in J v Legal Complaints Review Officer, Paul Davison J suggested the Court’s observations ought to apply to decision-makers more generally:38

While the Court of Appeal’s observations [in Belgiorno-Nettis] were directed at decisions made by judges and decision makers in quasi-judicial roles, nevertheless in my view, those principles also inform the discussion of why decision makers generally are encouraged to give reasons for their decisions. In relation to a Standards Committee’s decision to issue directions, that decision should be succinctly explained when the materials and information to be produced by the source of information are not obviously connected with the matter or matters under investigation or where the direction involves an intrusion into the source of information’s legitimate private affairs. If no explanation or justification for the direction is given, the practitioner will be left to guess or speculate as to the reasons, as will the court should there be a challenge to the lawfulness of the decision.

[181]  In Northern Action Group Inc v The Local Government Commission, Grice J, referring to Lewis v Horton and Belgiorno-Nettis, made the following useful observations in relation to the obligation to give reasons:39

The obligation to give reasons by bodies acting in a judicial or quasi – judicial role is an aspect of open justice. The giving of reasons is a discipline which is encouraged in order to maintain public confidence in the decision – making process. It also imposes on the decision maker the discipline of formally martialling its reasons and enables an appellate court to more readily spot an error or mistake by the decision maker.

The extent of the reasons required will depend on the nature and function of the decision maker. It also depends on whether the giving of reasons is an obligation imposed on it by statute or otherwise. In the case of a court the requirement to give reasons is more stringent than might be required than of a body entrusted with wide powers of inquiry following a non – adversarial process. On occasions, even for a court, the reasons may be abbreviated, or they may well be evident without express reference.

The decision maker must generally provide reasons which are intelligible, adequate and enable an understanding of why the matter has been decided in the way it has and why the conclusions have been reached on important issues. The reasons need only to refer to the main issues in dispute not every material consideration. The decision must show that the decision maker has addressed its mind to the criteria it was required apply.

38     J v Legal Complaints Review Officer [2019] NZHC 2089 at [109].

39     Northern Action Group Inc v The Local Government Commission [2020] NZHC 830 at [125]- [127].

Analysis and conclusion

[182]  The first question that needs to be considered is whether there is a duty upon the Chief Executive in this case to give reasons.

[183]  The authorities discussed above indicate that any duty or obligation to give reasons is ultimately contextual; it depends on the statutory framework and context. It is also apparent from the cases above that there is a greater expectation, or obligation on a decision-maker to give reasons when they are acting in either a judicial or quasi- judicial role. That is not the case here. As noted by counsel for the respondent, the Terms of Reference for the Chief Executive’s Advisory Panel for Complaints describe the function of the Advisory Panel as being that:

The Panel will have an advisory function rather than a decision-making function. It will not have the power to direct the Chief Executive to overturn decisions made within the Ministry.

[184]  Upon being advised by the Panel, the Chief Executive does not have an explicit statutory requirement to give detailed reasons when making decisions based on those recommendations.   This   distinguishes  the   case   from   Belgiorno-Nettis,   where s 144(8)(c) of the Local Government (Auckland Transitional Provisions) Act 2010 directly required the Independent Hearings Panel to give reasons for accepting or rejecting submissions, even if those submissions were grouped.

[185]  I acknowledge that the courts have regularly identified the advantages of decision-makers giving reasons, and the statement by Paul Davison J in J v Legal Complaints Review Officer40 that Belgiorno-Nettis should apply more broadly. The giving of reasons should certainly be encouraged in future cases like this, but unlike the authorities discussed above, the statutory and legal context makes it difficult to hold that there is an explicit duty on the Chief Executive to provide reasons when determining whether or not to accept recommendations from the Advisory Panel. In relation to ex-gratia payments, the decision in McLellan v Attorney-General41 illustrates that in order for a challenge to a decision by a Government official in relation to an ex-gratia payment to be justiciable, there must be a sufficient

40     Above n 38.

41     Above n 23.

surrounding legal framework, guidelines, statutory background or coherent policy statement against which to assess the reasonableness of the decision. That does not exist here.

[186]  The Chief Executive does have a duty under s 7 of the Oranga Tamariki Act 1989 to establish, amend, or replace (after consulting the Public Service Commissioner) one or more complaints mechanisms to enable children and young persons, their parents, whānau, families, and caregivers to complain about actions or omissions under the Act by OT employees, to ensure that the complainants receive responses in a timely and fair manner centred on the child or young person, and to ensure that the policies and services provided are informed by the outcomes of cases considered by the complaints process.42 This does not provide a yardstick against which to assess the decision on the ex-gratia payment or the direction to develop options to resolve the impact on X’s employment of the decision to cancel her caregiver status.

[187]  Notwithstanding my finding that the Chief Executive was not required to give reasons, I will consider whether the Chief Executive did in fact give reasons for her decision, and if so, whether they were adequate.

[188]  For the reasons now set out, I consider that the Chief Executive did give reasons for her decisions, and that they were adequate in the particular circumstances. Perhaps the most significant issue with the reasons given in the Chief Executive’s decision relates to the components of the fifth recommendation given by the advisory panel to provide an ex-gratia payment to the plaintiffs.

[189]   In relation to that fifth recommendation, counsel for the respondent stressed that this consisted of three components: to acknowledge the emotional and financial harm suffered, to acknowledge the loss of employment suffered, and in recompense for the 18-month non-payment of the plaintiff’s entitled HFC allowances. Counsel for X and Y submitted the Chief Executive only partially accepted the components of recommendation five, not making reference to the loss of employment suffered by X

42     See Oranga Tamariki Act 1989, s 7(bad) and 7(bae).

as a result of the complaint, or recompense for the 18-month non-payment of their HFC allowance.

[190]  However, counsel for the respondent made two points that provide an answer to this argument. The first is that there is no presumption that the Advisory Panel’s recommendation be accepted. The Panel does not have a decision-making function, and the plaintiffs were not entitled to the allowance, which was discretionary, rather than a form of income. Second, the payment was ex-gratia. As noted above, before a decision on ex-gratia payments can be justiciable, there needs to be some statutory framework or legal context against which they can be assessed. Counsel pointed out that there were no established criteria for making ex-gratia payment in this case, apart from a reference to “sufficient moral obligation”. There is no statutory or legal framework indicating that the Chief Executive was acting unlawfully by only partly accepting a recommendation to make this type of payment.

[191]  In so far as not providing reasons for not following the Panel’s recommendation for a component of the ex-gratia payment to compensate X for her employment issues, the letter from the Chief Executive states that she was “unable to provide an ex-gratia payment in respect of employment issues as I cannot oblige employers to treat information they receive as part of safety checking in a particular way”. The letter does not refer specifically to what the Panel report described as the “entitled HFC allowance” (incorrectly – the allowance was discretionary rather than a legal entitlement) but the ex-gratia payment of $5000 is said to be to acknowledge both “financial and emotional” detriment which would include not receiving a discretionary payment.

[192]  In relation to the sixth recommendation (suggesting that OT officials develop options to resolve the impact of the complaint on X’s employment and to meet with her about this), I accept the submission of counsel for the respondent that it could be inferred from the Chief Executive’s response, whereby she directed a regional manager to work with X on her difficulties in finding employment, that further steps would be taken once that regional manager had obtained the relevant information. While further steps did not ultimately occur, this was because X went to seek legal advice, as she was entitled to do, and chose not to meet with the manager. This was

not OT’s fault and also did not mean that the Chief Executive’s decision lacked sufficient reasons.

[193]  Finally, I comment on the submission of counsel for the respondent which stressed that analysis under this ground of judicial review required an assessment of Wednesbury unreasonableness.43 In my view,  that would over-complicate the situation. As noted by Cooke J in Patterson v District Court, Hutt Valley, at its heart, judicial review involves the Court exercising a supervisory jurisdiction to ensure that powers are exercised in accordance with the law – whether those powers are contained in statute, delegated legislation, or common law requirements (such as the rules of natural justice relevant to this case).44 The more appropriate standard is legality – i.e. whether the decision is lawful or not – or in this case, the lawfulness of the decision- maker’s provision of reasons assessed against the legal context of the case. In this case, the nature of the Advisory Panel report was not such that a failure to give reasons for not accepting all of the Panel’s recommendations was unlawful.

Outcome

[194]  The plaintiffs’ claim for a declaration that their rights under s 27 of NZBORA were breached succeeds; the plaintiffs’ claim for damages in respect of that breach fails; the plaintiffs’ claim in negligence is time-barred and therefore fails; the plaintiffs’ claim in judicial review fails.

[195]  I also remind the parties that unlike the Review Panel who expressed the view that it was “unconvinced that what the children were being exposed to meets the threshold of abuse”, the Court’s function in these proceedings has been to focus solely on the processes followed. It is not the Court’s role to make a finding on whether OT was justified in cancelling the plaintiffs’ caregiver status and nothing in this decision should be taken as expressing a view, one way or another, on that issue.

[196]  At the commencement of the hearing in this matter, at the request of counsel for the respondent, I made an interim order suppressing the names of the social

43     Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).

44     Patterson v District Court, Hutt Valley [2020] NZHC 259 at [14].

workers involved. As it happens, it has not been necessary to identify any of the social workers referred to in this decision. It is my provisional view that it is not necessary to make final suppression orders in respect of the social workers. If counsel for the respondent wishes to challenge that, they have seven days from the date of this decision to file submissions which the applicants will have seven days to respond to. I will then determine the matter on the papers. If no such submissions are filed, the interim orders will lapse eight days after the date of the decision. The names of the applicants/plaintiffs remain suppressed.

[197]  Should costs be in issue, the plaintiffs are to file a memorandum within 14 days of the date of this decision, with the respondents having 14 days to respond. Costs will then be dealt with on the papers.

Churchman J

Solicitors:
Crown Law Office, Wellington

cc:        V L Heine QC, Barrister, Wellington