CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN v GRANT-SHEPHERD AND ORS [2018] NZHC 1260

CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN v GRANT-SHEPHERD ANDORS [2018] NZHC 1260 [31 May 2018]NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989,CHILDREN AND YOUNG PERSONS ACT 1989, ANY REPORT OF THISPROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THEFAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2017-404-2259[2018] NZHC 1260BETWEEN CHIEF EXECUTIVE OF THE MINISTRYFOR VULNERABLE CHILDRENAppellantAND JUSTINE GRANT-SHEPHERD ANDDAVID BRUCE MENZIESFirst RespondentsANDANDALISON LESLIE PRINCESecond RespondentJOHN FRANCIS MENZIESThird RespondentHearing: 7 March 2018Appearances: S Jerebine and T Burgess for AppellantH Ellis for RespondentS Jefferson QC, Amicus CuriaeJudgment: 31 May 2018JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on 31 May 2018 at 3.00pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors: Crown Law, WellingtonCounsel: S Jefferson QC, Auckland[1] The question in this appeal is whether the Court has the power to appoint as aspecial guardian under s113A of the Oranga Tamariki Act 1989 (the Act) a person whois appointed a guardian or additional guardian when considering an application unders 125 to vary a guardianship order made under the Act.[2] The case concerns Oliver Prince, who was born on 15 December 2015. Priorto Oliver's birth, a declaration was made under s 67 of the Act that Oliver was in needof care and protection, and orders were made granting custody of Oliver to the ChiefExecutive of Oranga Tamariki and appointing the Chief Executive as an additionalguardian.[3] The case arises because Justine Grant-Shepherd and David Bruce Menzies, thegrandparents and current caregivers of Oliver, have applied under s 125 of the Act to:(a) Discharge the existing custody order in favour of the Chief Executive;(b) Vary the existing additional guardianship order to substitute themselvesas additional guardians of Oliver in place of the Chief Executive; and(c) Have themselves appointed special guardians of Oliver under s 110(4).[4] There is no issue regarding the validity or appropriateness of the originalcustody and guardianship orders or the lawfulness or appropriateness of dischargingthe custody order and varying the additional guardianship order as requested. Theonly issue is whether there is power under the Act to appoint the grandparents asspecial guardians if they are appointed additional guardians.[5] The Chief Executive supports the grandparents' application. A plan preparedunder s 128 of the Act and a social worker's report prepared under s 186 of the Actalso support the grandparents being made additional guardians and special guardiansof Oliver.[6] Judge Goodwin in the Family Court1 held the drafting of s 110 to be flawedand decided there is no power to make a special guardianship order under s 110(4).The Judge also decided he could not interpret s 83(1)(h), which empowers a court tomake an order under s 110 appointing a guardian, as including a power to appoint aspecial guardian. Accordingly, the Judge concluded the Court had no jurisdiction tomake the special guardianship order sought by the grandparents.2[7] The Chief Executive appeals that decision. Her position is that once a personhas been appointed a guardian or additional guardian under s 110(2) of the Act,ss 110(4) and 113A gives the Court the power to appoint that person a special guardianand no separate authorisation or power is required.[8] Although named as respondents, the grandparents support the ChiefExecutive's position.[9] Simon Jefferson QC was appointed to assist the Court. Mr Jefferson submittedtwo memoranda which endorsed the Family Court's reasoning and conclusions.Mr Jefferson also referred the Court to other relevant Family Court decisions, some ofwhich took the same approach as Judge Goodwin.Agreed position on application of Oranga Tamariki Act and Care of Children Act[10] The question for determination is one of statutory interpretation. There is nodifference among counsel about the purpose of special guardianship orders which wereintroduced into the Act as ss 113A and 113B in June 2016 by the Children, YoungPersons, and Their Families (Vulnerable Children) Amendment Act 2014. TheAmendment Act also introduced the definition of "special guardian" into s 2 of the Actas follows:special guardian means a guardian of a child or young person appointedunder section 110 who is appointed as a special guardian under section 113A.[11] There are two pathways by which a special guardianship order may be made:1 xxxxxxxxxxx v Oranga Tamariki, Ministry for Vulnerable Children [2017] NZFC 6962.2 xxxxxxxxxxxx v Oranga Tamariki, Ministry for Vulnerable Children [2017] NZFC 6962 at [21]-23] and [38]-[39].(a) Pursuant to s110A of the Act, in which case:(i) the application must be made to replace an existingguardianship order made under s 27 of the Care of Children Act2004; and(ii) the Court must be satisfied as to the matters specified ins 110A(4)(a) of the Act regarding the reasons an applicant hasbeen unable to exercise their existing guardianshipresponsibilities and the resulting effect on the welfare of thechild or young person;(b) Under the Oranga Tamariki Act itself when there is no existingguardianship order under the Care of Children Act.[12] Counsel agree the grandparents' application falls for consideration under thesecond pathway, if that pathway is available. If that pathway is not available, the onlyoption for the grandparents to be appointed special guardians would be for thegrandparents first to be appointed as guardians under the Care of Children Act andthen to apply under s 110A of the Act to replace that order. That would be a curiousresult.[13] It is common ground that:(a) As members of Oliver's whanau, the grandparents are able, unders 126(e) of the Act, to apply under s 125 to vary the existing additionalguardianship order made under s 110;(b) The application under s 125 to vary the existing additional guardianshiporder is properly made because the existing order is, in terms ofs 125(1)(g), a guardianship order made under s110;(c) Section 127 sets out the Court's powers upon the hearing of anapplication under s 125 to vary a guardianship order, which includepowers to:(i) Vary the order under s 127(1)(a) to remove the Chief Executiveas an additional guardian of Oliver;(ii) Make any other order referred to in s 83(1), whether or not theCourt exercises the power to vary under s 127(1)(a) (sees 127(1)(ca));(d) Section 83(1)(h) empowers the Court to make an order under s 110(2)appointing the grandparents as additional guardians of Oliver.Point of divergence[14] Where counsel diverge is whether the above provisions, in combination withs 110(4) and s 113A(1), give the Court the power also to appoint the grandparents asspecial guardians. The divergence flows from the fact s 83(1) does not specificallyprovide that a Court may make an order appointing a special guardian under s 113A.[15] Mr Jefferson endorses the Family Court conclusion that the absence of aspecific reference to s 113A in s 83(1) means the Court cannot appoint a person as aspecial guardian on an application under s 125. Counsel for the Chief Executive andthe grandparents disagree.Analysis of ss 110(4) and 113A[16] Section 110 provides:110 Guardianship orders(1) Where the court makes a declaration under section 67 in relation toany child or young person, or on an application referred to in section110A, it may make an order appointing any of the following personsto be a guardian of the child or young person:(a) (e) any other person.(2) A guardian appointed under subsection (1) must be appointed as—(a) the sole guardian of the child or young person; or(b) a guardian of the child or young person in addition to anyother guardian.(3) (4) If a person who is appointed as a sole or additional guardian of a childor young person under this section is a natural person, the court mayalso make an order under section 113A appointing the person as aspecial guardian of the child or young person (including when theorder under this section is made at a hearing under section 127).[17] Section 113A(1) provides:113 A Special guardianship orders(1) The court may make an order under this section appointing a personreferred to in section 110(4) as a special guardian of a child or youngperson only if—(a) the appointment is made for the purpose of providing the childor young person with a long-term, safe, nurturing, stable, andsecure environment that enhances their interests; and(b) either—(i) the child or young person has no other guardian; or(ii) the special guardian either replaces, or is additionalto, an existing guardian of the child or young person.[18] The Family Court said the power to appoint a special guardian resides ins 113A and not in s 102(4) and, since s 113A is not referred to in s 83(1), theconsequence is the Court has no jurisdiction to appoint the grandparents as specialguardians when considering an application under s 125 and exercising its powersunder s 127.[19] I consider the Family Court has misunderstood the interaction of ss 127(1),83(1), 110(2) and 110(4). It is not necessary for there to be any reference to s113A ins 83(1) for the Court, when exercising its powers under s 127, to have the power toappoint as special guardian a person who is appointed a guardian or additionalguardian under s 110(2).[20] I consider the legislation was designed to work, and does work, as follows:(a) On the hearing of an application made under s 125, the Court may makeany order referred to in s 83(1);3(b) That includes an order appointing a person as a guardian or additionalguardian under s 110(2);4(c) If a person is appointed a guardian or additional guardian unders 110(2), the Court may also appoint that person a special guardianunder s 113A(1);5(d) Section 113A(1) provides the power to appoint a special guardianprovided it is for the purposes set out in s 113A(1)(a) and in thecircumstances set out in s 113A(1)b).[21] Section 110(4) does not provide a separate power of appointment but it doesprovide the link between s 83(1), s 110(2) and s 113A. When a Court is appointing aguardian or additional guardian under s 110(2) as provided for in s 83(1)(h) it has,under s 110(4), the authority also to appoint a special guardian under s 113A. It is notnecessary, therefore, and would be superfluous for s 83(1) to refer to s 113A.[22] Section 110(4) confirms this interpretation by its parenthetical statement"(including when the order under this section is made at a hearing under section 127)".Those words would have no meaning if the Court was precluded, at a hearing unders 127, from appointing a guardian or additional guardian a special guardian.Policy considerations[23] The policy rationale for the above interpretation is apparent: the intention isthat only persons who are appointed as guardians or additional guardians can beconsidered for appointment as special guardians. It would not be appropriate,therefore, for s83(1) to make separate reference to the power to appoint special3 Section 127(1)(a) and (ca).4 Section 83(1)(h).5 Section 110(4).guardians, whether in the context of an application under s 125 or when an initial orderis made under s 67 that a child or young person is in need of care or protection.[24] Mr Jefferson acknowledged no policy mischief results from this interpretation.Ms Jerebine for the Chief Executive said to hold there is no jurisdiction to appoint aspecial guardian on an application under s 125 would render invalid the manyappointments of guardians as special guardians on applications made under s 125,although that was not a factor in my decision.Conclusion[25] There is jurisdiction under the Oranga Tamariki Act to appoint Oliver'sgrandparents as special guardians on an application made under s 125 of the Act ifthey are appointed additional guardians of Oliver. The requirements to be satisfied forappointment are set out in s113A of the Act.Referral back to Family Court[26] Counsel for the Chief Executive and for the grandparents invited me to appointthe grandparents as additional guardians of Oliver rather than refer the matter back tothe Family Court. While that would be expedient, given the time passed sincepreparation of the plan and report under ss 128 and 186, I am referring the matter backto the Family Court in case updating is required to make the assessment required bys 113A(1)(a).Result[27] I set aside the decision of the Family Court.[28] I refer back to the Family Court for decision the application by the firstrespondents for appointment as special guardians of Oliver Prince.__________________G J van Bohemen J