M AND D BY THEIR LITIGATION GUARDIAN ANTONY GLADSTONE MAHON V S AND ANOR HC AK CIV 2007-404-1624

M AND D BY THEIR LITIGATION GUARDIAN ANTONY GLADSTONE MAHON V S AND ANOR HC AK CIV 2007-404-1624

Children have a statutory right to appeal under s143 but, because they are minors, appeals typically must be prosecuted through a litigation guardian appointed under the High Court Rules; the litigation guardian must be appointed before filing the notice of appeal, may instruct counsel or self-represent, and is liable for costs (subject to rules and legal aid provisions); the High Court may appoint a lawyer for the child on appeal by relying on its inherent jurisdiction because s7 and related provisions primarily envisage Family Court appointments and do not clearly empower High Court-paid appointments on appeal; legislative clarification is desirable.

Citation
openlaw-32159015_0196_4d77_b1c7_c65f4d4c4bfb.pdf
Parties
Appellants: M and D (by litigation guardian Antony Gladstone Mahon); First Respondent: S; Second Respondent: H; Appellants: M J L and N (by litigation guardian Vanessa Jane Vette); First Respondent: L; Second Respondent: C; Amicus Curiae: S Jefferson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 October 2007
Procedural Posture
Appeal Under Care of Children Act 2004 (s143) / High Court Procedural/directions Judgment on Appeals (appointment/role of Litigation Guardians and Counsel)
Outcome
Procedural declarations and guidance provided concerning appeals by children under s143; directions given and non-substantive recommendations made, including recommendation for legislative amendment and reservation of costs applications
Legal Topics
Appeal Rights of Children, Litigation Guardian Appointment and Duties, Lawyer for the Child on Appeal, Capacity of Minors to Litigate, Costs and Legal Aid, High Court Inherent Jurisdiction
Family Law Child Welfare Law Civil Procedure Appeal Rights of Children Litigation Guardian Appointment and Duties Lawyer for the Child on Appeal Capacity of Minors to Litigate Costs and Legal Aid +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 8 Authorities cited 20 Party arguments 2
Sign in to unlock

Parties

M and D (by litigation guardian Antony Gladstone Mahon)

Appellants

S

First Respondent

H

Second Respondent

M J L and N (by litigation guardian Vanessa Jane Vette)

Appellants

L

First Respondent

C

Second Respondent

S Jefferson

Amicus Curiae

Procedural Posture

Appeal Under Care of Children Act 2004 (s143) / High Court Procedural/directions Judgment on Appeals (appointment/role of Litigation Guardians and Counsel)

Legal Issues

  1. 1 Whether a child has a statutory right to appeal and the procedure to exercise it
  2. 2 Who may be appointed litigation guardian and when appointment must occur
  3. 3 Whether lawyer for the child in the Family Court may act or be appointed for the High Court appeal and whether fees may be publicly funded

Ratio Decidendi

Children have a statutory right to appeal under s143 but, because they are minors, appeals typically must be prosecuted through a litigation guardian appointed under the High Court Rules; the litigation guardian must be appointed before filing the notice of appeal, may instruct counsel or self-represent, and is liable for costs (subject to rules and legal aid provisions); the High Court may appoint a lawyer for the child on appeal by relying on its inherent jurisdiction because s7 and related provisions primarily envisage Family Court appointments and do not clearly empower High Court-paid appointments on appeal; legislative clarification is desirable.

Court Disposition

Procedural declarations and guidance provided concerning appeals by children under s143; directions given and non-substantive recommendations made, including recommendation for legislative amendment and reservation of costs applications

Orders

  • Registrar directed to endorse this judgment with delivery time 4 p.m. on 12 October 2007
  • Court directed that appointment of a litigation guardian must precede filing of the notice of appeal and set out procedural requirements for such appointments