ADAMSON v CHIEF EXECUTIVE OF ORANGA TAMARIKI [2022] NZCA 505

ADAMSON v CHIEF EXECUTIVE OF ORANGA TAMARIKI [2022] NZCA 505 [21 October 2022]NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11CAND 11D OF THE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA457/2022[2022] NZCA 505BETWEEN IAN ADAMSONFirst AppellantKATE JONESSecond AppellantAND CHIEF EXECUTIVE OF ORANGATAMARIKIRespondentHearing: 30 September 2022Court: Goddard, Ellis and Dunningham JJCounsel: First Appellant in personSecond Appellant in personA W M Britton for RespondentJudgment: 21 October 2022 at 4.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] As in earlier litigation,1 in order to protect the identity of the child, she will bereferred to as Alice, the first appellant will be identified as Mr Adamson and the secondappellant as Ms Jones. Other parties are also anonymised accordingly. Reference tocases which might otherwise identify relevant parties has also been omitted.[2] The first appellant, Mr Adamson, is the maternal grandfather offour-year-old Alice. The second appellant, Ms Jones, is Alice's mother. Alice ispresently in the custody and guardianship of the respondent, the Chief Executive ofOranga Tamariki (the Chief Executive), and in the day-to-day care of herpaternal grandmother.[3] On 25 August 2022, Gwyn J, in the High Court at Wellington, refused theappellants' application for a writ of habeas corpus in respect of Alice.2 The Judgedetermined that the issues raised by the appellants regarding Alice's care arrangementswere "not ones that are properly susceptible to fair and sensible summarydetermination on an application for a writ of habeas corpus".3 Instead, they werematters that would require considerable evaluation and were already squarely beforethe Family Court and the High Court in other proceedings.[4] The appellants appeal that decision. They say the Judge should not havedismissed the application pursuant to s 14(1A) of the Habeas Corpus Act 2001(the Act) without first, as required by s 14(2), enquiring into the matters of fact andlaw which are claimed to justify the detention. Had the Judge done so, it is implicit inthe appellants' submissions that a writ should have issued.Background[5] Before turning to the substance of the appeal it is necessary to provide a briefhistory of proceedings involving Alice which culminated in the application heard bythe Judge.1 Adamson v Chief Executive of Oranga Tamariki [2021] NZHC 2530 at [1] [24 September 2021judgment].2 Adamson v Oranga Tamariki [2022] NZHC 2153 [High Court judgment].3 At [17].[6] Alice was born with complications affecting her ability to feed and grow. Shewas removed from the care of her mother because health professionals becameconcerned that her special needs were not being properly addressed in the care of hermother and maternal grandparents, and this put her health in jeopardy.On 30 March 2020, a place of safety warrant was issued4 and executed after Alice'smother discharged Alice from hospital against medical advice. Alice was returned tohospital, and, since her subsequent discharge, she has lived with her paternal family.[7] On 3 April 2020, on a without notice basis, the Family Court made an interimcustody order and guardianship order in favour of the Chief Executive.The guardianship order was extended on 20 October 2020. On 11 April 2021, aguardianship order was made under s 110 of the Oranga Tamariki Act 1989.[8] In a thoughtful and detailed decision which issued on 6 July 2021, Judge Blackin the Family Court declined applications from the appellants to discharge the ordersin favour of the Chief Executive, as Alice remained in need of care and protection.The Judge also stated he would make a custody order in favour of the Chief Executive5once a report6 and plan7 were filed.[9] The appellants appealed the Family Court's decision. On 24 September 2021,the High Court dismissed that appeal.8 Cooke J agreed with the Family Court thatAlice was in need of care and protection, and there were no practical alternatives tocontinuing the Chief Executive's involvement. The Judge accepted the professionalopinions which indicated that Alice was thriving in her paternal grandmother's care.He also dismissed challenges to the Family Court's decision advanced on the groundsof apparent bias or pre-determination.9[10] On 12 October 2021, the Family Court accepted that the plan filed in respectof Alice's care was adequate in terms of the Oranga Tamariki Act. Judge Black madea custody order and continued the guardianship order in favour of the Chief Executive.4 Oranga Tamariki Act 1989, s 39.5 Section 101.6 Under s 186.7 Under s 128.8 Adamson v Chief Executive of Oranga Tamariki, above n 1.9 At [61]–[64].He directed a review take place in six months and proposed a family group conferencebe convened to address longer term plans for Alice.[11] On 26 November 2021, the appellants filed a without notice application foraccess to Alice which the Family Court determined should proceed on notice.The appellants then appealed the Family Court's decision of 12 October 2021 andsought the discharge of all orders in favour of the Chief Executive. The High Courtordered the appellants to pay security for costs. This was not paid, and the appeal wassubsequently deemed abandoned.[12] As is recorded in the Chief Executive's submissions, the appellants haveinitiated a wide range of other proceedings. It is not necessary to list them all.However, they encompass a range of applications and appeals to the High Court,including judicial review proceedings in respect of "all orders held byOranga Tamariki in relation to Alice" and several defamation proceedings, includingagainst Oranga Tamariki. The judicial review and defamation proceedings werestruck out by the High Court before being served,10 with one of the bases of strike outbeing that part of the proceedings raised collateral challenges to the High Court's24 September 2021 judgment.11 An appeal from the strike-out decision was deemedabandoned for failure to pay security for costs.[13] The appellants' application for access made in November 2021 was scheduledfor mediation in March 2022. However, counsel for the Chief Executive advises thatwas derailed by the appellants' filing of a number of further applications on25 January 2022. Specifically, the appellants applied without notice to vary/dischargeorders in favour of the Chief Executive, to place Alice in the custody of Ms Jones, andto appoint her as Alice's sole guardian (the January 2022 applications). TheJanuary 2022 applications were placed on notice by the Family Court and are opposedby the Chief Executive. Because these were "substantially similar proceedings" toprevious proceedings filed in the Family Court and were commenced less than10 Adamson v Chief Executive of Oranga Tamariki [2021] NZHC 3044 at [13].11 At [8].two years after the previous proceedings were finally determined, leave to commencethem was required.12 That leave application is still to be determined.[14] In mid-2022, the appellants again applied to discharge and vary the orders infavour of the Chief Executive on a without notice basis. On 20 July 2022,the Family Court dismissed that application as an abuse of the Court's processes.[15] On 25 July 2022, the appellants filed judicial review proceedings withoutnotice to the Chief Executive, again challenging the lawfulness of the decisions andorders made by the Family Court in July and October 2021 and alleging bias on thepart of the Family Court Judge. On 5 August 2022, Cooke J dismissed thewithout notice application as an abuse of process, and the judicial review proceedingwas placed on notice. Furthermore, the Judge noted that the "judicial review seems tobe a further attempt to challenge the Family Court decisions in a way that circumventsthe rights of appeal in s 341 of the Oranga Tamariki Act 1989".[16] On 24 August 2022, shortly after the High Court refused to considerthe application for judicial review on a without notice basis, the appellants filed anapplication for a writ of habeas corpus seeking the return of Alice to Ms Jones' careand the rescinding of the orders in favour of the Chief Executive.[17] The application was supported by an affidavit from Ms Jones which outlinedthe litigation history from 2019, when Oranga Tamariki applied for custody andadditional guardianship orders in respect of Alice after the hospital raised medicalconcerns about her. In that affidavit, Ms Jones says that at the judicial conference heldon 15 December 2021, Judge Black said the medical risk to Alice had now been"mitigated". In Ms Jones' view, this meant there were "no substantive grounds tocontinue the current orders in favour of Oranga Tamariki". Ms Jones considers thatAlice should have been returned to her care, and the failure to do so means there hasbeen "a serious miscarriage of [j]ustice" causing "ongoing trauma for Alice andMs Jones and her maternal [whānau]". Her affidavit also makes accusations of "[b]iasand non-impartiality" by the Family Court Judge in favour of the Chief Executive and12 Oranga Tamarki Act, s 206A.the Chief Executive's lawyer and alleges a failure to implement a plan which wouldfacilitate Alice's return "home".The decision under appeal[18] As required by the Act, the habeas corpus application proceeded on an urgentbasis, with Gwyn J hearing from the parties by way of teleconference on25 August 2022. The Judge declined the application at the conclusion of the hearingand issued her judgment giving reasons on the following day.[19] In her written decision, the Judge outlined the ongoing litigation to challengethe custody and guardianship orders made in favour of the Chief Executive andobserved that the "validity of the custody and guardianship orders are squarely in issuein [the current judicial review] proceedings".13[20] The Judge then referred to s 14 of the Act which outlines how applications fora writ of habeas corpus are to be determined. Relevant to this case are the followingprovisions:14 Determination of applications(1) If the defendant fails to establish that the detention of the detainedperson is lawful, the High Court must grant as a matter of right a writof habeas corpus ordering the release of the detained person fromdetention.(1A) Despite subsection (1), the High Court may refuse an application forthe issue of the writ, without requiring the defendant to establish thatthe detention of the detained person is lawful, if the court is satisfiedthat—(a) section 15(1) applies; or(b) an application for the issue of a writ of habeas corpus is notthe appropriate procedure for considering the allegationsmade by the applicant.(2) A Judge dealing with an application must enquire into the matters offact and law claimed to justify the detention and is not confined in thatenquiry to the correction of jurisdictional errors; ...13 High Court judgment, above n 2, at [14].[21] The Judge considered the application fell squarely within s 14(1A). She heldthat, regardless of the validity of the orders, the Family Court hearing would need toconsider Alice's medical needs and whether they have changed, thus justifying achange in the guardianship and custody orders, and those were matters that wouldrequire "considerable evaluation". In any event, she concluded that nothing raised bythe applicants went to the validity of the custody and guardianship orders.The application was therefore dismissed.14Principles on appeal[22] This is a general appeal, and the relevant principles are as follows:15(a) This Court is required to come to its own view on the merits and theweight it gives to the decision of the original decisionmaker as a matterof judgment.(b) The appellants bear the onus of showing that the original decision waswrong.(c) Where the original decisionmaker has a particular advantage, such astechnical expertise or the opportunity to assess the credibility of thewitnesses, this Court on appeal may hesitate to substitute its own viewon findings of fact.[23] Here, given the limited scope of a hearing on an application for a writ ofhabeas corpus, the first two principles set out above are the most relevant.14 [17]–[19].15 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5]and [16].The grounds of appealDid the Judge wrongly treat s 14(1A) of the Act as a jurisdictional bar?[24] The appellants' first ground of appeal is that the Judge wrongly relied ons 14(1A) of the Act, treating it as a "jurisdictional bar" to the requirement to enquireinto the facts and law as set out in s 14(2).[25] In support, the appellants cite DE & Ors v Chief Executive of the Ministry ofSocial Development, where it was said:16[36] The existence of another remedy is not a jurisdictional bar to anyinquiry into the underlying facts and law in terms of s 14(2) of theHabeas Corpus Act....The appellants also refer to the same decision, where this Court said:[39] For the above reasons, we reject the Chief Executive's submission thatthe existence of the Family Court order is a conclusive answer to the family'sapplication. Where the interests of justice require, the Court will always havethe power to inquire into the legality of such an order, provided the issues areapposite for determination within the parameters of a habeas corpus hearing.[26] We accept that neither the existence of orders made by the Family Court, northe fact that Family Court proceedings are on foot that address the same or similarissues, amounts to a jurisdictional bar to an application for a writ of habeas corpusbeing made. However, we are satisfied that the Judge did not consider there was ajurisdictional bar.[27] The decision in DE v Chief Executive of the Ministry of Social Developmentclearly distinguished between the jurisdiction to bring an application for a writ and theability of the Court to determine that the issues raised were not capable of"summary determination" on such an application. That distinction is made in theDE case, where it was acknowledged that the existence of another remedy (which inthis case is the other court proceedings) "gives a Court power to refuse to make suchinquiries where the matter is incapable of summary determination". It is a question,16 DE v Chief Executive of the Ministry of Social Development [2007] NZCA 453, [2008] NZFLR85.in each case, whether the "interests of justice" require the Court to inquire into theunderlying facts and law.17[28] Here, we are satisfied that the Court could not responsibly make a decision onAlice's welfare on a summary basis. Such a decision would require the provision ofup to date reports on Alice's progress and welfare, provided by suitably qualifiedprofessionals, so that a thorough and considered decision could be made about howher health and wellbeing could best be supported going forward.[29] In the High Court judgment, the Judge clearly made a sufficient inquiry intothe background facts and law to understand that the orders which were currently onfoot had been made by the Family Court, and all rights of appeal had been exhausted,so that they were, prima facie, valid. She also understood that the question of whatwas in Alice's best interests involved a complex mix of social, cultural and medicalconsiderations. There was a sufficient inquiry undertaken for her to reach herconclusion that under s 14(1A) of the Act, the application was "not the appropriateprocedure for considering the applicants' allegations".18Was there reason to question the validity of the orders?[30] The next ground of appeal appears to be that, if the High Court had inquiredinto the lawfulness of the detention, there was an indication from an earlier minute ofthe High Court that the Family Court's decision on 6 July to make a custody orderunder s 101 of the Oranga Tamariki Act was unlawful because of the absence of theplan required under s 128. A plan was only received by the Court on 30 July 2021.[31] However, by the time of the application for a writ, further orders had beenmade by the Family Court in favour of the Chief Executive on 12 October 2021, whenthe approved plan was before it. Challenges to the current orders are still on foot byway of the January 2022 applications and the application for judicial review.17 At [36].18 High Court judgment, above n 2, at [18].[32] Accordingly, we agree with the Judge's conclusion that none of the mattersraised by the appellants goes to the validity of the current custody and guardianshiporders.Was the High Court judgment wrong because of false statements in the submissionsfor the Chief Executive?[33] The appellants also submit that the Chief Executive's submissions on theapplication contain "falsities". However, the alleged falsities appear to be no morethan instances of the appellants disagreeing with the Chief Executive's submissions.[34] Without any evidence that false information was before the Judge which wasmaterial to her decision, this ground of appeal is also rejected.Did the Judge predetermine the outcome?[35] The appellants also submit that the Judge predetermined the outcome because,at the beginning of the hearing she "made it clear to all parties that in her view theproceedings would be dismissed pursuant to s 14(1A) of the [Act]". Again,the appellants repeat their submission that she should have made a full enquiry intothe matters of fact and law claimed to support the detention.[36] However, we accept, as the Chief Executive submits, that the Judge consideredthe written materials filed and heard from the parties orally before decliningthe application. Her decision reflects a reasoned determination to refusethe application. There is no evidence of predetermination. This ground of appeal alsofails.Did the relevant orders allow the Chief Executive to determine where Alice was placedand thus detain her?[37] Finally, the submissions appear to question the Chief Executive's ability to"detain" a child under a custody order made under the Oranga Tamariki Act. However,the appellants also accept, in submissions, that a guardianship order under s 110 doesgive the ability to "detain" the child, using the more liberal definition of "detention"which has been recognised in cases involving custody of children.19[38] The broad jurisdiction of the Court on an application for habeas corpus incustody cases was discussed in this Court's decision in TWA v HC, as follows:20[10] As this statutory scheme indicates, the specialist jurisdiction of theFamily Court and the powers that Court has under the Children, YoungPersons, and Their Families Act 1989 ... and the [Care of Children Act 2004]mean that resort to habeas corpus in custody cases will be rare in moderntimes. Nevertheless, the jurisdiction continues to exist and does not dependupon the physical restraint or the absence of consent on the part of a child.The jurisdiction is described as follows by the learned authors of the textThe Law of Habeas Corpus:That habeas corpus in custody cases differs fundamentally fromits use to secure personal liberty has always been recognized. Itis seen to involve "not a question of liberty, but of nurture, controland education". It "is being used not for the body, but for thesoul of the child". Accordingly, the courts have consistently heldthat neither the allegation that the child is under no restraint, northat the child consents to his situation, will prevent them fromacting on habeas corpus.[39] It seems the appellants do not dispute that the orders made in favour of theChief Executive are a form of restraint on the liberty of Alice, consistent with the broaddefinition of detention in the Act. Indeed, that is the basis on which they bringtheir application. We are satisfied the orders made do allow the Chief Executive todetermine where the child is to be placed. This ground of appeal also fails.Conclusion[40] Nothing raised by the appellants persuades us that there was an error in theHigh Court judgment. The Judge made sufficient enquiry into the background of themaking of the custody and guardianship orders, and to the past and current litigationhistory of the matter, to satisfy herself that the issues of concern were complex andmore appropriately addressed in other forums.19 O'Connor v Chief Executive of the Ministry of Vulnerable Children, Oranga Tamariki [2017]NZCA 617, [2018] NZAR 94.20 TWA v HC [2016] NZCA 459, [2016] NZFLR 763 (footnotes omitted).[41] Like the Judge, we consider that we could not responsibly make a decisionabout where Alice should be placed on a summary basis, as is required in a hearingunder the Act. Indeed, it would be contrary to Alice's best interests for us to attemptto do so.Result[42] The appeal is dismissed.[43] The Chief Executive did not seek costs, and we consider that costs should liewhere they fall in this case. There will be no order as to costs.Solicitors:Crown Solicitor, Wellington for Respondent