AB and BC v CHIEF EXECUTIVE OF MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 1787 [16 July 2013]

AB and BC v CHIEF EXECUTIVE OF MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 1787 [16 July 2013]NOTE: PURSUANT TO S 437A OF THE CHILDREN, YOUNG PERSONS,AND THEIR FAMILIES ACT 1989, ANY REPORT OF THIS PROCEEDINGMUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT1980. FOR FURTHER INFORMATION, PLEASE SEEHTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY-COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-485-1194[2013] NZHC 1787UNDER THE Children, Young Persons, and TheirFamilies Act 1989IN THE MATTER OF An appeal against a decision of the FamilyCourt at Upper HuttBETWEEN AB and BCAppellantsAND CHIEF EXECUTIVE OF MINISTRY OFSOCIAL DEVELOPMENTRespondentHearing: 7 June 2013Counsel: J F Sanders for AppellantsPVC Paino for ChildrenR B Chan and R A Jobson for RespondentJudgment: 16 July 2013RESERVED JUDGMENT OF MACKENZIE JI direct that the delivery time of this judgment is4.00 pm on the 16th day of July 2013.Solicitors: Julia Sanders Lawyer, Upper Hutt, for AppellantsPaino and Robinson, Upper Hutt, for ChildrenCrown Law Office, Wellington, for Respondent[1] The appellants are the biological parents of eight children ranging in age from three to 15 years. The seven oldest children were removed from their parents'care towards the end of 2009 and the youngest child was removed from their care shortly after his birth in 2010. Declarations under s 67 of the Children, Young Persons, and Their Families Act 1989 (the Act) are in force in respect of each of the children, declaring that the child is in need of care or protection.[2] The oldest child was the subject of a declaration made by consent in November 2009. There was a defended application for a declaration in respect of the then remaining six children. Following a hearing declarations were made in April 2010. The youngest child was born after the hearing and was uplifted at birth. A declaration in relation to that child was made in June 2010. Custody orders under s 101 of the Act have since been made placing each child in the custody of the respondent. Under those orders the children have been placed by the respondent with permanent caregivers. The oldest boy has been placed with one family. The seven youngest children have all been placed with another family. Each child has been the subject of regular reviews under s 135 of the Act.[3] The removal of the children from their biological parents has raised the need for access arrangements for the parents. Since the care and protection orders were made, the access arrangements have changed from time to time. There have been three different access arrangements for the seven oldest children, prior to that established by the order in May 2012 which is the subject of this appeal:(a) From December 2009 to July 2010, the parents had weekly access, for one hour, supervised, with the seven children at the offices of Child, Youth, and Family (CYF). That access was pursuant to a Family Court order made on 15 December 2009.(b) From July 2010 to November 2011, following a Family Court mediation, a variation was agreed and an access order made for one day per month, unsupervised, with each of the seven oldest children. That one day period was defined as eight hours for the five oldest children and six hours for the two youngest children, and was for onechild at a time, except for two children who had their monthly access together.(c) From November 2011 to May 2012, contact reverted to weekly supervised one hour access, at CYF. That change occurred because the s 121 order made following the mediation provided that either party could revoke the mediated order and revert to the December 2009 order. The respondent gave such notice.[4] The access arrangements for the youngest child were not agreed on at the mediation. Access was defined following a hearing in December 2010. In November 2011, the respondent gave notice that it was revoking the mediated access arrangements for the seven oldest children. It also applied to vary access of the parents to all eight children by reducing their contact to four times a year for two hours on each occasion, with such contact to be supervised. That application was heard in the Family Court in April 2012 and an order under s 121 was made on 7 May 2012. The access orders were varied, so that access was reduced to four times a year for two hours on each occasion, supervised. The appellants appeal against that order. The essence of the appellants' submissions in support of the appeal is asfollows:(a) in evaluating the welfare and interests of the child as the first and paramount consideration under s 6 of the Act, the particulars of each child should be separately considered and the Court erred by failing todifferentiate between each child's particular needs and circumstances;(b) in its evaluation of s 5(d) of the Act, the Court erred in failing to giveconsideration to the children's wishes, particularly of the olderchildren who have the ability to articulate their wishes;(c) the Court erred in its evaluation of the principle in s 5(b) that, wherever possible, the relationship between a child or young person and his or her family, whanau, hapu, iwi and family group should be maintained and strengthened;(d) insufficient weight was given to the children's wishes, and to therecommendations of the Court appointed psychologist, who proposedthe children's access with their parents be reduced to fortnightly ormonthly, if the children were not returned to their parents care, with the proviso that the frequency of contact would be guided by theappellants' acceptance of the care arrangements;(e) the Court erred in placing undue weight on hearsay evidence from the social worker of reports from the caregivers.[5] Counsel for the respondent submits that:(a) no error of fact or law has been established;(b) consideration was given to all relevant considerations;(c) the decision is consistent with the principle that the welfare and interests of the children are paramount, that evidence of their individual circumstances and needs was before the Judge, and that he was not required to include the details of that evidence in his decision;(d) the individual wishes of the children were not the overriding consideration, because the current access arrangements were impacting negatively on the children.[6] The main reason for the application to vary the access orders was, as expressed by the social worker in her evidence, that the parents were upsetting the children during access times. The Ministry of Social Development had reports from the children themselves, and from one of the caregivers, that the access and what their parents were saying to them was upsetting them, was sabotaging the placement and was not helping them settle in their home.[7] The Judge discussed this issue. He said:11 Ministry of Social Development v PH and JC [2012] NZFC 3029 at [21].Put bluntly the current problem appears to arise by reason of the fact that the parents do not accept that these children should be in permanent placements for life. On the one hand they claim to accept the need for the children to be in permanent placements, yet on the other hand their conduct and behaviour suggests that they do not support the children being away from them permanently. This leads to problems at access because there is no doubt that the parents have discussed with the children the possibility of the children returning home. This has the effect of unsettling the children as to where they are going to live in the future and undermines the stability which the Department is seeking for them.[8] The Judge described the Department's position in these terms:2The Departmental goal is one of permanency. The Department acknowledge that the parents never accepted that permanent goal and they have always opposed that goal throughout. The Department acknowledge that the parents are likely to continue to oppose, but nevertheless that is the plan and goal which the Department believe will promote the best interests and welfare of the children.[9] The Judge, after describing the parents' position and discussing the relevant principles, expressed his conclusions in these terms:3The Department is perhaps fortunate in this situation in that they have caregivers who are prepared to take seven children, two of whom clearly have difficulties, and care for them on a long-term permanent basis. It is quite clear from the evidence that has been before this Court previously, and which is by and large confirmed through the assessments now undertaken on the parents, that the parents cannot expect the children to be returned to their care. It would not be in the interests of the children for them to be so returned, so consequently long-term placement is the only viable option.When one reaches that conclusion, then the issue of access becomes quite straightforward. Its purpose must be to only maintain knowledge andawareness of one's family connections, and that can be achieved by limited contact during a year. Frequent access as is proposed by the parents would clearly undermine the stability, security, safety and development of these children and would therefore undermine their long-term best interests and welfare.In those circumstances I have come to the clear view that the application should be granted.Accordingly, the access that the parents have to all their children will be reduced to four times per year for two hours on each occasion with such access to be supervised. The Department will meet the costs of such supervision.2 At [24].3 At [36]-[39].[10] I consider that there are two factors which are crucial in determining the extent of access. As I consider that they are dispositive of this appeal, I deal with them directly.[11] The first key consideration is the maintenance of the children's relationship with their natural parents. The Judge observed that the purpose of access is different, depending upon whether the overall goal is for eventual return of the child to the parents' care or for the child to live permanently away from the parents. If the goal is eventual return, the objective of access is to maintain and reinforce the relationship between the child and the parents as much as practicable. If the goal is permanent placement away from the parents, the objective of access is to maintain asense of identity with the child's biological connections, not to sustain a long-term relationship.[12] Because the goal in this case is permanent placement, the purpose of access is to maintain a sense of identity with each of the children's biological connections andnot to sustain a long-term relationship. The question is, what extent and form of access is appropriate to achieve that purpose? The affidavit of the social worker, filed in support of the application to vary access in November 2011, focused more on why the then current extent and form of access was unsuitable, and less on why the proposed extent and form of access was suitable.[13] She said:I believe that it is in the best interests of all of the children that access is reduced to two hours of supervised access, quarterly. This will provide the children with extended periods of calm, allowing them to develop their relationships both within and outside of the family. Supervision will reassure the children prior to their access visits that they will be safe and thus reduce the number of stress reactions that they experience in the days leading up to and immediately following their visits. Four visits a year will be sufficient to ensure that the purpose of access is achieved, which is for the children to know their parents and their family background.[14] She elaborated on that in cross-examination in these terms:Q. So from what I could perceive of your affidavit, your understanding of why access to four times a year at Barnardos for two hours eachtime is because the children don't have to see their parents any moreoften than that?A. The reason I –Q. That's your view?A. My view, it's, it's one of many reasons. I think the children have, be supervised by professionals in a child-focused arena. Um, the two hours is about all, is about as much attention span that they have so, um, including the parents. The parents had told me recently that they do like the group, they do like the two, the group of children together as opposed to just the two when they were coming once a month, so they did like that aspect of it. But I guess as well the reasons for doing it at Barnardos is because this has got to be sustainable and this is a non-return to home. These children are [not] going to be going home for life. Their caregivers can't be, um,doing access at their home and so forth.[15] The social worker has subsequently provided a report on progress with access since the order was made. On 11 May 2012 access took place in the offices of CYF in Upper Hutt. The next access was to be supervised access at Barnardos in August 2012. However, Barnardos was unable to provide supervision and the access took place at McDonalds at Upper Hutt supervised by Ministry social workers. All children attended. It started well but after an hour it became evident that the oldestboy's behaviour was disrupting the access. The next visit was at Barnardos inNovember 2012. The children settled well, the parents interacted well and tried to divide their time to include all the children but the oldest boy's behaviour was againdisruptive.[16] After that visit, the oldest boy indicated he wanted to see more of his parents. An informal arrangement has been reached for him to have monthly unsupervised visits with his parents at their home.[17] The next access visit in February 2013 at Barnardos did not go well. Contact supervisors reported breaches of a number of the conditions of access.[18] The authors of Brookers Family Law - Child Law note that "the policy of the Ministry's Permanent Placement Unit is based on Derrick4 , and is for contactfour times a year for the sole purpose of maintaining a child's sense of identity".5Ms Chan informed me that that policy is an old policy. Although there is no4 R Derrick "Children in care and the right to belong", (2004) 27 Social Work Now 19.5 Patrick Mahony (ed) Brookers Family Law - Child Law (looseleaf ed, Brookers) at [NT10.8].evidence in this case that the extent of access suggested by the respondent was based upon such a policy, the order sought would be in line with the policy noted by the authors. The order sought by the Ministry in this case was for contact four times a year.[19] The fact that, in this case, access arrangements must be made for eight children presents a considerable challenge. The position which has been reached is that the access is exercised in respect of seven children at the same time.6 There are a number of considerations which favour that approach. The interests of the children suggest that it would be preferable that all of the younger children, who are all living together, see their parents at the same time. The wishes of the children also seem to point in that direction. Mr Paino, lawyer for the children, reports that they are generally happy with the form of the access. The interests of the caregivers are another relevant factor which favours this approach.[20] The ability to maintain a sense of identity with the child's biologicalconnections by access limited to four times a year for two hours supervised access must be significantly different for one child and for seven children simultaneously. The present arrangement requires that both parents will, if they divided their access equally between all seven children, have the ability to relate one on one with each child for a maximum period of less than 20 minutes, four times a year. The ability to relate to each child individually is more limited than that, since they must at the same time ensure that the other children receive attention so that they do not become disruptive. The circumstances of the access are such that the number of visits, and the length of those visits, is not comparable with access for one child, or a smaller number of children.[21] I do not consider that the constraints imposed by the number of children whose needs must be catered for on each occasion of access have been given proper weight. There must be a real question as to whether, in the circumstances in which the access is to take place, fewer access visits per year is a realistic means of maintaining, for each child, his or her sense of identity with his or her natural6 While there has been no formal change to the order for the eldest child, his access is now different, as I have described in [16].parents. I am unable to form a view on that question. I do not consider that it has been given sufficient consideration. The evidence does not adequately address this issue. The Judge's decision does not address it.[22] Another consideration, which is relevant in considering the adequacy of access in the difficult circumstances which I have described, is that the individual needs of each of the children must be taken into account as appropriate. The psychologist who gave evidence at the Family Court hearing said in her affidavit:The Court may consider it appropriate to direct that each child is independently assessed in terms of the current contact and access arrangements, and/or for there to be ongoing monitoring of the effects of contact and any changes to the contact.[23] The Judge raised that with the psychologist in her oral evidence in these terms:Q. If the Court thinks it's necessary, I'm being asked to make that decision, that's what I'm being asked to make based on what I amtold by the social worker and no doubt what I've read in theaffidavits of the parents and your reports that are attached to thoseaffidavits, that's really the crux of the evidence that I have, to say cutit down from what it is now to four times a year for two hours to eight hours a year contact without any further psychological input soit would probably be relevant, wouldn't it, to ascertain the impact onthe children by having them assessed?A. Yes.[24] No further psychological input was ordered, and the Judge did not address this issue in his judgment. The limited psychological input at the hearing reinforces my conclusion that the needs of each of the children, and the implications of the joint access for the extent and form of access, have received insufficient attention.[25] The appellants applied to this Court for leave to adduce on this appeal a report from a psychologist. Mallon J, ruling on that application, said:7A psychologist report might, however, be relevant to remedy if the Family Court erred in any of the respects alleged. One possible approach is to obtain a psychologist report now in case the appeal is upheld and the report assists with what contact should be ordered in the place of the existing7 AB and BC v The Chief Executive of Ministry of Social Development [2012] NZHC 3168 at [17]-[18].contact order. The alternative is to determine the appeal and, if it is successful, to refer the appeal back to the Family Court to obtain a psychologist report (if appropriate) and to reconsider the contact orders in the light of any such report.I consider that the latter alternative is the preferable course. If a psychologist report is obtained now, it may end up being unnecessary if the appeal grounds are not successful. If the appeal is successful, the better place to determine new contact arrangements, if there are to be any, is the Family Court.[26] I agree with that approach. The Family Court should consider further the extent to which further psychological evidence is needed.[27] The second key consideration is the issue of permanency of placement. The care arrangements for all of the children are premised on the proposition that their placement away from their parents will be permanent. The custody order under s 101 is intended to remain in place for the long-term, for each of the children. The various care and protection plans produced for the implementation of the custody orders all adopt that premise of permanency of placement.[28] The parents have not previously accepted the permanency of the placements. That is clear from the Judge's decision, the various care and protection plan reports, and the evidence, particularly that of the social worker. It is also clear that theparents' non-acceptance of permanency has had a significant unsettling effect on thechildren at the access visits. That has been an important factor in the respondent'sdecision to apply to vary the terms of access.[29] Ms Sanders for the appellants advises that the parents' position has nowchanged. She advises that they have now accepted that the placement will be permanent.[30] I consider that, in the light of that asserted change in position, it is important that the parents be given an opportunity to demonstrate the genuineness of their commitment to the goal of permanency. If they do demonstrate that commitment, then the position as to access should be reviewed. Their non-acceptance of the goal has been a significant factor in the difficulties which have arisen over access. A change of attitude by the parents, if established, would be such a significant changein circumstances as to require a reconsideration of access arrangements. That is so because their undermining of that goal has been one of the main reasons for the present arrangements.[31] I am in no position to assess whether there has been a change of heart by the appellants. Nor am I in a position to assess the extent to which they may now be committed to supporting the permanency of the placements to the children. If there is indeed acceptance that the placement of each of the children is permanent, then it is very important that the parents reinforce that in their interactions with the children, and do not undermine that goal of permanency.[32] Those two key considerations lead me to the conclusion that the terms of access should be reconsidered. A further relevant factor is that the formal access in place for the oldest child has been informally replaced by another arrangement. That needs to be revisited.[33] There are, in summary, three factors which lead me to the view that the access arrangements need further consideration. These are:(a) the inadequate consideration of the need to attend to seven children simultaneously;(b) the possibility that the parents' acceptance of the reality of permanentplacement may have changed;(c) the acknowledged unsuitability of the present order so far as the oldest child is concerned.[34] The last two factors could be addressed by an application to further vary the terms of access under the present order. Neither of these would, standing alone, justify the intervention of this Court on this appeal. The third factor is, however, directly relevant on this appeal. My conclusions on this factor are such that the grounds for intervention on appeal are made out.[35] For these reasons, I consider that the appropriate course is to allow the appeal and to remit the case to the Family Court for rehearing. In the circumstances, it is not appropriate to give any formal direction to that Court as to the matters to be considered.Result[36] The appeal is allowed. The Family Court is directed to rehear the respondent's application for variation of the access order. The access order made in May 2012 is to remain in force pending that rehearing, or until further order of the Family Court."A D MacKenzie J"