L v THE CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN, ORANGA TAMARIKI [2017] NZHC 3008

L v THE CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN, ORANGATAMARIKI [2017] NZHC 3008 [5 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-2804[2017] NZHC 3008BETWEEN LFirst ApplicantTSecond ApplicantAND THE CHIEF EXECUTIVE OF THEMINISTRY FOR VULNERABLECHILDREN, ORANGA TAMARIKIRespondentHearing: 1 December 2017Appearances: The applicants in personA J Ewing for the RespondentJudgment: 5 December 2017JUDGMENT OF PALMER JThis judgment is delivered by me on 5 December 2017 at 4.00 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors and PartyCrown Law, WellingtonApplicantsSummary[1] Baby L has been the subject of much litigation before and during his sixmonths of life. His parents want him back from the custody arrangements imposed byFamily Court, on application of the Ministry of Vulnerable Children, Oranga Tamariki,before his birth. I agree with the parents, Mr L and Ms T, that the order under whichL was being detained expired on 30 October 2017 and has not yet been replaced. Hisdetention has been unlawful since then. But, in light of the care and protection issuesinvolved, I transfer the application to the Family Court for decision under s 13(2) ofthe Habeas Corpus Act 2001. In the meantime, I continue the current custodyarrangements under the High Court's parens patriae jurisdiction to protect those unableto care for themselves.What happened?The s 78 application[2] The Court of Appeal has recently set out the context to this case:1Ms T has long-standing mental health problems. She has previously beenthe subject of a compulsory treatment order under the Mental Health(Compulsory Assessment and Treatment) Act 1992 but is currentlyundergoing voluntary treatment. Her three older children were removedfrom her on the grounds that they were in need of care and protection. Mr L,who settled in New Zealand in 1995 as a refugee, has previously receivedtreatment for mental health issues but says that he currently has no suchproblems. The couple lives in straightened circumstances in a caravan parkwith minimal support from Ms T's family.[3] In March 2017, when the couple was expecting the birth of their child L, asocial worker applied for a declaration he was in need of care and protection unders 67 of the Oranga Tamariki Act 1989 (the Act). At the same time, the social workerapplied for an order under s 78, without notice to the parents, placing L in the custodyof the Chief Executive of the Ministry of Vulnerable Children, Oranga Tamariki (ChiefExecutive), "pending determination of the declaration proceedings".2 This reflectedthe words of s 78(1).1 L v Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki [2017] NZCA 517[Court of Appeal decision] at [4].2 During the course of these events the Ministry of Vulnerable Children, Oranga Tamariki, wascreated and the Children, Young Persons and Their Families Act 1989 became the OrangaTamariki Act 1989. Except in quotations, I use the current nomenclature throughout the judgment.[4] On 13 April 2017 Judge Pidwell adjourned the proceeding to 4 May 2017 andmade the s 78 order, saying it was appropriate and in the child's best interest andwelfare for a s 78 order to issue immediately "to ensure that the child upon birth hasthe best start to life it can, in terms of an appropriate and safe placement approved bythe Ministry."3 The order stated (with emphasis added): "Chief Executive of theMinistry of Social Development shall have custody of the above-named child oryoung person pending determination of the application for declaration." On 4 May2017, after two family group conferences, Judge Druce made allocated an urgentfixture to hear the s 67 application and determined the s 78 order "will continue inthe interim".[5] L was born on 13 May 2017. The Chief Executive placed L with a member ofMs T's whānau.Previous habeas corpus applications[6] The parents, Mr L and Ms T, applied for a writ of habeas corpus on the basisL was not a "subsequent child" as defined in the Act (which would put the onus onthe parents to demonstrate he or she would not allow harm to the child). On 25September 2017, Toogood J noted the Chief Executive had withdrawn reliance onthe "subsequent child" status of L.4 But he declined the application for habeascorpus because there was a proper basis for Judge Pidwell's s 78 order, so the order,and therefore the detention of L, was not unlawful. On 18 September 2017 Mr L andMs T filed a further habeas corpus application. It was declined by Duffy J under s 15of the Habeas Corpus Act 2001 on 27 September 2017 as it concerned the sameissue that had been dealt with by Toogood J.[7] On 15 November 2017, the Court of Appeal declined the appeal by Mr L andMs T of Toogood J's decision.5 The interim s 78 order was lawful and, by then, thes 67 determination had been made. The Court of Appeal noted that "even if theappeal had succeeded, a further s 78 order would have been inevitable, given the3 Chief Executive of the Ministry of Vulnerable Children, Oranga Tamariki v T FC WaitakereFAM 2017-090-000182, 12 April 2017 (Minute of Judge B R Pidwell) at [9].4 L v Chief Executive of the Ministry of Vulnerable Children, Oranga Tamariki [2017] NZHC 2322at [14] and [17].5 Court of Appeal decision, above n 1.circumstances outlined in the decision on the s 67 order".6 The Court understoodpreparation of an application for a s 101 custody order, to replace the s 78 order, wasunderway.7The s 67 determination[8] In the Family Court, Judge A M Manuel held a two-and-a-half day hearing ofevidence from the parties and experts and submissions from the parties and counselfor the child. On 30 October 2017, Judge Manuel declared L was in need of care andprotection under s 67. She examined the mental health of the parents, potential drugand alcohol abuse, transience, capacity to care for a baby in a motor park, lack ofinsight into parenting issues and lack of support. Judge Manuel did not mention thes 78 order. In conclusion, she stated:8I am satisfied that L's needs cannot be met by other means; no other viableproposal has been presented. Under s 14(1)(b) OTA, his development orphysical or mental or emotional wellbeing is likely to be impaired orneglected in a way which is likely to be serious and would otherwise beavoidable if he is returned to his parents' care. Under s 14(1)(f) OTA, L'sparents are currently unable to care for him in a manner which will meet hiswelfare and interests, despite being willing to care for him.The present habeas corpus application[9] On Friday 24 November 2017, Mr L and Ms T made a further application forhabeas corpus on the basis the s 78 custody order had expired and had not beenreplaced. On Monday 27 November 2017, I sought responses from the parties to myinclination to transfer the application to the Family Court under s 13(2) of theHabeas Corpus Act 2001. The applicants did not respond. The Crown opposed thetransfer, making submissions about why the detention was, or would be made,lawful. I concluded that issue was properly the subject of a habeas corpus application,which I heard on Friday 1 December 2017.6 At [3].7 At [13].8 Ministry of Vulnerable Children v T [2017] NZFC 8295 at [69].Further Family Court direction[10] On 29 November 2017, following my minute, counsel for the ChiefExecutive sought urgent clarification from the Family Court of the effect of JudgeManuel's judgment on the s 78 order. Counsel noted the Court's s 67 judgment didnot "specifically require a plan to be prepared or specifically direct that the section78 order continue pending preparation of a plan pursuant to section 128 andconsideration of that plan" as was "usual practice" and, in counsel's submission, was"implicit in the judgment". Counsel requested that Judge Manuel "issue an amendedor additional judgment confirming her intention, on making the [s 67] declaration,that the section 78 custody order continue pending preparation of a plan and themaking of disposition orders pursuant to s 83 of the Act". The same day, JudgeManuel made the following direction:Having read the Ministry's memorandum of 29 November 2017, for theavoidance of any doubt, my judgment of 30 October 2017 is amendedpursuant to the slip rule to specifically include at [72] an order that the s78OTA custody order is to continue pending preparation of a plan and themaking of disposition orders pursuant to s83 OTA.Law of habeas corpus regarding young people[11] In Bennett v Superintendent, Rimutaka Prison, the Court of Appeal stated that"[t]he great writ of habeas corpus ad subjiciendum – a writ of right – has been themeans whereby in Great Britain over some hundreds of years, and in New Zealandsince the founding of the nation, the lawfulness of a detention has been able to betested, and, if found to be unlawful, the release of the detainee obtained."9 It alsostated "[n]or is the writ to be diminished by its unnecessary use where anothereffective remedy is available through which compliance with the law can speedily beensured and where, overall, the circumstances are not of a kind justifying resort to thewrit."10[12] The Habeas Corpus Act 2001 now governs most aspects of the writ. Itspurposes include:9 Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA) at [60].10 At [60].(a) reaffirming "the historic and constitutional purpose of the writ ofhabeas corpus as a vital means of safeguarding individual liberty"; and(b) "to make better provision for restoring the liberty of personsunlawfully detained by establishing an effective procedure forapplications to the High Court for the issue of a writ of habeas corpus,and the expeditious determination of those applications".[13] Section 9 of the Act provides an application for a writ of habeas corpus mustbe given precedence over all other matters before the High Court unless a judgeconsiders the circumstances require otherwise. Judges must ensure every applicationis disposed of as a matter of priority and urgency. Section 14(1) provides that "if thedefendant fails to establish that the detention of the detained person is lawful, theHigh Court must grant as a matter of right a writ of habeas corpus ordering therelease of the detained person from detention". Section 14(1A) empowers the Courtto refuse an application, without requiring the defendant to establish detention islawful, if satisfied such an application "is not the appropriate procedure forconsidering the allegations made by the applicant". Otherwise, the Court mustdetermine an application by refusing it or issuing the writ ordering release fromdetention, subject to s 13(2).[14] In relation to people under the age of 16, s 13 of the Act provides:13 Powers if person detained is young person(1) In dealing with an application in relation to a detained person who isunder the age of 18 years, the High Court may exercise the powersthat are conferred on the Family Court by the Care of Children Act2004.(2) If the substantive issue in an application is the welfare of a personunder the age of 16 years, the High Court may, on its own initiativeor at the request of a party to the proceeding, transfer the applicationto the Family Court.(3) An application referred under subsection (2) must be dealt with bythe Family Court in all respects as if it were an application to thatcourt under the Care of Children Act 2004.[15] In 2016 in TWA v HC the Court of Appeal noted the specialist jurisdiction andpowers of the Family Court mean resort to habeas corpus in custody cases "will berare in modern times" but continues to exist and does not depend on the physicalrestraint or the absence of consent on the part of the child.11 The Court quotedFarbey and Sharpe's text to the effect that habeas corpus in custody cases "differsfundamentally from its use to secure personal liberty" as it is used "not for the body,but for the soul of the child".12[16] In TWA v HC the Court considered the child, S, was unlawfully detained.Custody orders under s 101 of the Act had been discharged and other Family Courtorders were invalid. It considered the High Court had erred in finding the habeascorpus procedure was unavailable and quashed its order dismissing the applicationfor the writ.13 However, the Court considered s 13(2) and (3) reflected "thedevelopment of the law of guardianship that, in issues affecting the care andprotection of children, the paramount concern is the best interests of the child".14 Itconsidered s 13(2) was available to the Court up until its final disposition of anapplication for habeas corpus.15 The Court stated:16S's present care arrangements provide for her guardianship and day-to-daycare. If they are removed without some alternative orders in place,protection issues arise for S because TWA remains in prison. This case isclearly one in which the substantive issue in the application is the welfare ofa young person under 16. Transfer of this application is the best way ofensuring that orders, which must be made to replace the impugned ordersproviding for S's ongoing care, are made in her best interests. In light of theprovisions of s 14(3), we are not required to issue the writ notwithstandingour finding that the existing orders are invalid. The issue by this Court of awrit of habeas corpus is plainly not the appropriate disposition of thisapplication.[17] In the interim, until the Family Court could consider the application resultingfrom transfer under s 13(2), the Court invoked the High Court's parens patriae11 TWA v HC [2016] NZCA 459, [2017] NZAR 129 at [10].12 Judith Farbey and R J Sharpe The Law of Habeas Corpus (3rd ed, Oxford University Press,Oxford, 2011) at 188 citing In Re Carroll [1931] 1 KB 317 at 331.13 At [37].14 At [39]15 At [42].16 At [43].jurisdiction to protect those legally unable to care for themselves.17 It directed, in theinterim, the arrangements for the care and custody of S continued.[18] In denying leave to appeal, the Supreme Court agreed:18[11] Even assuming Mr A is correct in his contention that, where adetention is held not to be lawful, an order for release should be made, itwould not be appropriate to make such an order without exercising the s 13powers to ensure continuing care arrangements for a child under [s] 16. Thiscould include remitting the issue to the Family Court, (as a specialist court),under s 13(2), to decide on the care arrangements that would meet the bestinterests of the child involved.[12] If the matter is remitted to the Family Court (as it was here), theninterim care arrangements will need to be put in place to care for the childpending a Family Court decision. We accept the submission made by theChief Executive that, on the approach taken by the Court of Appeal, interimorders for S's care could not have been made under s 13(1) of the HabeasCorpus Act because of the existence of orders under the CYPF Act. We alsoaccept the submission that, assuming the matter had been dealt with in theHigh Court, S could and would not have been left outside of the protectionof the law. This means that, had the matter been dealt with in the HighCourt, it would have exercised the parens patriae jurisdiction, which ispreserved by s 16 of the Judicature Act 1908 and s 13(2) of the Care ofChildren Act 2004.[16] We do not accept this submission [that the Court of Appeal could notassume that it was in S's best interests effectively to continue the impugnedorders]. The orders merely continue existing care arrangements pending a fullFamily Court consideration. Nothing has been raised to suggest it would bein S's best interests to disrupt (on an interim basis) her current livingarrangements with a family she has been with since birth. What is in herlong term best interests will be decided by the Family Court.SubmissionsMr L and Ms T's submissions[19] At the hearing, Mr L submitted the s 78 order expired on 30 October 2017meaning the continued detention of L was unlawful and he must be returned to hisparents. He submitted the only reason the child is in custody is because OrangaTamariki considered he was a subsequent child, which it now accepts he was not.17 At [44].18 TWA v HC [2016] NZSC 136 at [11], [12] and [16] (citations omitted).[20] Mr L submitted ss 67 and 78 provide for different orders and the slip ruledoes not allow an order under one to be made by amending a decision under theother. He submitted Oranga Tamariki acted unlawfully, and contrary to naturaljustice, by applying without notice for a custody order and the Family Court abusedits powers by making an amendment to a finalised judgment. He submitted the sliprule is not to be taken lightly and that is what the Family Court did.[21] Mr L said he and Ms T have done parenting courses, they know how to lookafter the baby in a safe manner and they are prepared to do more courses. He saysthere are no welfare concerns for the baby, they have community support, are ofsound mind and have no mental health issues that would adversely impact on theirparenting skills.[22] He submitted Baby L has been detained illegally for more than a month ingross violation of the baby's rights and the writ of habeas corpus should be issued.Alternatively, if it is not appropriate to be dealt with through habeas corpus, hesubmitted it should be transferred to the Family Court.Chief Executive's submissions[23] In opposing reference to the Family Court, the Chief Executive submitted itwas implicit in the s 67 decision that the s 78 order continues pending preparation ofa s 128 plan. At the hearing, Ms Ewing, for the Chief Executive, acknowledged the s78 custody order expired on 30 October 2017. Ms Ewing also submitted the FamilyCourt had corrected its s 67 decision to include a continuation of the s 78 order or,alternatively, that it made a fresh order under the slip rule. She submitted theextension of the custody order inevitably follows from the s 67 declaration so it wasa correction of an omission that would inevitably have been made. She likened it touse of the slip rule in Hanmore v Ganley to add the requirement to pay interest to anorder to pay the judgment sum.19 She acknowledged the case law on the slip ruleinvolves a formal application being made, on which submissions would be heard.And she accepted the right to natural justice is "in play". But she submitted therehas to be scope for the slip rule to be exercised without a full hearing.19 Hanmore v Ganley (1995) 9 PRNZ 25 (HC).[24] Alternatively, Ms Ewing relied on TWA v HC to submit the matter should bereferred back to the Family Court under s 13(2) of the Act, as I had originallysuggested.Issue 1: Is L unlawfully detained?[25] Ms Ewing, for the Chief Executive, concedes the s 78 order expired on 30October 2017, as she must. The terms of the order itself provided it expired ondetermination of the application for the s 67 declaration. The application wasdetermined on 30 October 2017. Continuation of the s 78 order was not explicit orimplicit in the s 67 decision. Section 78(2) explicitly provides the Family Court maymake an order under s 78(1) where it "has made a declaration under s 67 and hasadjourned the proceedings pending their disposition". But no such order was made.[26] Neither do I consider Judge Manuel's direction on 29 November 2017 waslawfully made under the slip rule. Rule 52 of the Oranga Tamariki Rules 1989provides "[c]lerical mistakes in judgments or orders, or errors arising in judgmentsor orders from any accidental slip or omission, may at any time be corrected by thecourt or a Judge or a Registrar". As the Chief Executive submitted, it is notsubstantively different from r 11.10 of the High Court Rules 2016. But theamendment purportedly made on 29 November 2017 does not correct a clericalmistake or a slip in expression in the judgment. It makes a substantive andsubstantial change to the content of the legal orders made. The slip rule cannot beused to vary an order in such a fundamental way or to improve the judgment.20 AsMr L submits, that goes beyond the scope of the slip rule. It vitiates the purporteddirection irrespective of the breach of natural justice in not hearing from Mr L andMs T before making the direction.[27] Accordingly, I conclude the applicants are correct that L has been unlawfullydetained since 30 October 2017.20 R v Cripps, ex p Muldoon [1983] 3 All ER 72 (CA), relied on in, for example, Allan Scott Wines& Estates Holdings Ltd v Lloyd (2006) 18 PRNZ 1999 (HC).Issue 2: What orders should be made?[28] As in TWA v HC, the care and protection issues involved in this case mean Ido not consider a finding of unlawful detention must lead to issuing a writ of habeascorpus. Under s 4 of the Care of Children Act 2004, s 6 of the Oranga Tamariki Act1989 and art 3 of the United Nations Convention on the Rights of the Child, thewelfare and best interests of the child must be the paramount consideration. Thoseinterests are under active consideration by the Family Court. Five weeks ago, theFamily Court made a determination under s 67 that L should not be returned to hisparents' care. The parents are able to appeal that and, if they have followed theadvice of the Court of Appeal, may already have done so.21 It would be irresponsibleof me to ignore that context by issuing a writ that returns L to his parents' care forthe first time.[29] The Court of Appeal and Supreme Court have held that, in suchcircumstances, I have jurisdiction to transfer the application to the Family Courtunder s 13(2) of the Habeas Corpus Act 2001 at this point in the proceeding. Despitethe Chief Executive's previous opposition to that course of action, Ms Ewingsubmitted that should be done if wrong about the lawfulness of the detention. AndMr L submitted the application should be transferred to the Family Court if it wasnot appropriate to deal with it through a writ of habeas corpus.[30] I consider transferring the application to the Family Court, which must treat itas an application under the Care of Children Act 2004, is the best way of ensuringthat orders are made in L's best interests. The Family Court will then have before itan application by the parents, against the Chief Executive. The Court will need toconsider, and seek the parties' views, on how the application is best considered underthe Care of Children Act.[31] TWA v HC is also authority for my jurisdiction to provide for the interimcustody of L under the parens patriae jurisdiction of the High Court. I may also havethe option, under s 13(1) of the Habeas Corpus Act 2001, of deploying powers underthe Care of Children Act that were not available on the Court in TWA. But the21 Court of Appeal decision, above n 1, at [13].parties have not made submissions on that. I consider the parens patriae jurisdictionis sufficient for the interim purposes here. I continue the existing arrangements forthe care and custody of L under that jurisdiction until the Family Court determinesthe application I transfer to it.Result[32] I make the following orders:(a) I transfer the application for a writ of habeas corpus to the FamilyCourt under s 13(2) of the Habeas Corpus Act 2001. The FamilyCourt will need to consider, and seek the parties' views, on how theapplication is best considered under the Care of Children Act 2004.(b) I place L in the custody of the Chief Executive of the Ministry ofVulnerable Children, Oranga Tamariki, until that application isdetermined.(c) I preserve the anonymity of the applicants and child by prohibitingpublication of their names or identifying particulars and directing thefile is not to be searched except by leave of a judge.Palmer J