CLM V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT AND ORS HC AK CIV-2009-404-7117

CLM V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT AND ORS HC AK CIV-2009-404-7117 28 June 2010NOTE: PURSUANT TO S 437A OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-7117UNDER the Judicature Amendment Act 1972 and/or Part 30 High Court Rules, the Children, Young Persons, and Their Families Act 1989 and the New Zealand Bill of Rights Act 1990 IN THE MATTER OF an interim custody order granted without notice by the Family Court at Waitakere on 14 October 2009 in respect of the plaintiff's unborn child BETWEEN CLM Plaintiff AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT First Defendant AND HELENE GREENING Second Defendant AND THE FAMILY COURT AT WAITAKERE Third Defendant Hearing: 19 May 2010 Appearances: Rodney Harrison QC and Dianne Martin for Plaintiff Una Jagose and Rachel Roff for Defendants Dagny Baltakmens for Third Defendant (to abide) Judgment: 28 June 2010JUDGMENT OF HARRISON JIn accordance with R11.5 I direct that the Registrar endorse this judgment with the delivery time of 3:30 pm on 28 June 2010_________________________________________________________________________________ SOLICITORS Marshall Bird & Curtis (Auckland) for Plaintiff Crown Law (Wellington) for Defendants COUNSEL RE Harrison QCIntroduction[1] CLM is the mother of five children. The four eldest are in the custody of others. Less than a month before the birth of her fifth child, the Ministry of Social Development applied to the Family Court without notice to CLM for an interim order placing the unborn child in its custody. The Ministry proposed that the child would be placed with approved caregivers, with CLM being allowed to spend 24 hours in hospital under watch with her child immediately after birth and then one hour's supervised access weekly after placement. [2] The Family Court made an interim custody order accordingly. The proceedings were then served on CLM. She engaged counsel and applied promptly to set aside the order. Three weeks later, following a full hearing, the Court made a new interim custody order in the Ministry's favour but on different conditions. Significantly, placement of the still unborn baby was now to be with CLM under oversight and in full residential care. [3] CLM applied to this Court, contemporaneously with the interlocutory activity in the Family Court, to judicially review the actions of the Ministry and the Family Court. Her counsel, Mr Rodney Harrison QC, accepts that by the time of her baby's birth CLM had been heard on the Ministry's application and that the original interim custody order made without notice had been discharged. Without conceding that the Ministry had acted unlawfully in applying without notice to CLM or that the Family Court acted unlawfully in granting the application, the Ministry's counsel, Ms Una Jagose, submits that the second order swiftly cured any procedural failures associated with the first and rendered moot any rights of review which CLM may enjoy. [4] Nevertheless, Mr Harrison maintains that CLM is entitled, first, to a declaration that both the Ministry and the Family Court breached CLM's entitlement to natural justice, whether under s 27(1) New Zealand Bill of Rights Act 1990 (the NZBORA) or at common law, and, second, to an order for costs fixed on an increased or indemnity basis.Background[5] Both counsel prepared detailed chronologies which have assisted in understanding the background to this litigation. However, the facts relevant to determination of CLM's application can be traversed shortly. [6] CLM is aged 33 years. Her troubled life has been characterised by parental neglect and sexual abuse from an early age. She was placed in state care in her early teenage years. She has suffered instability and depression and periods of alcohol and drug addiction. She has lived in violent relationships with male partners. She has, as noted, born five children. The first four are either in state custody or with the natural father. [7] CLM's parenting history has led, understandably, to intensive state oversight and intervention. Child, Youth and Family Services (CYFS), the Ministry's service line, has held "significant and previously potential life threatening substantiated concerns" for the children when they were in CLM's care. Issues of transience, instability and exposure to family violence, neglect, alcohol and drug abuse have all featured. [8] CLM's complaint of assault to the police on 4 August 2009 triggered these events. She was then six months pregnant; her baby was due on 29 October. She said that on 31 July she was visiting a house in Blockhouse Bay occupied by Mrs Mary Dougherty, the mother of her former partner, Michael Dougherty; that he arrived at the house in a drunken state during the evening; and that without warning punched her on the left side of her face causing bruising. A protection order had earlier been made against Mr Dougherty in CLM's favour. [9] A report of concern under s 15 Children, Young Persons, and Their Families Act 1989 (all future references are to that statute unless expressed otherwise) and a family violence summary prepared on 9 August recited that CLM was the subject of six such reports in 2009. CYFS was also concerned about CLM's drug and alcohol abuse.[10] A social worker noted:The baby will be a highly vulnerable infant after he/she is born, completely dependent on adult caregivers for safety and wellbeing. The parent is not protective. Concerns are re high risk pregnancy due to alcohol and drug abuse by mother during pregnancy; safety/care concerns for baby post birth due to mother's ongoing substance abuse issues; family with extensive history of CYFS involvement.[11] On 23 August police found CLM in a heavily intoxicated state when visiting her home address in response to a call. [12] On 14 September five social workers attended a meeting to consider the welfare of CLM and her unborn child. Extensive notes were made. The social workers discussed in depth a range of specific incidences of CLM's conduct. These events compounded the social workers' existing concerns about the unborn baby's welfare. [13] Two aspects of the meeting are of particular relevance. First, some of the social workers reported on their difficulties in contacting CLM. One said that she had given several addresses and telephone numbers which were wrong. However, that social worker was due to meet CLM again at a Blockhouse Bay address on 17 September. Another worker said that she knew CLM as "a very unreliable person who hides where she lives", and who "deliberately switched off the phone or changed numbers so that [her] older children had no way of contacting her". [14] Second, the social workers agreed that CLM's parenting skills were seriously deficient, if not non-existent. They discussed a contingency plan to notify various hospitals should CLM present there to give birth. CLM had reportedly told one social worker that she was "going to keep [the unborn baby] and was going to be a good mum". Another social worker suggested that it would be best if CLM went to Bethany Hospital as soon as she gave birth. This would enable close monitoring and also "might be the only way she can keep baby if that is what she is aiming at". [15] As Mr Harrison emphasises, the notes make no reference to a proposal to remove the unborn baby from CLM's custody following birth.[16] On 30 September 2009 two social workers, Ms Helene Greening and Ms Rebecca Winter, visited the address at which they understood CLM lived. They found the house vacant and learned from a neighbour that the police had attended earlier that day to arrest Mr Dougherty for contravening the protection order. Earlier that day he had visited CLM's house in a drunken state and abused her. He alleged that he had been living with CLM for the previous week. The social workers left a CYFS business card in the mailbox requesting CLM to contact them urgently. [17] On 1 October Ms Greening and Ms Winter visited the same address where they spoke to CLM's brother. They left a second business card with a request for CLM to phone them. CLM did phone Ms Winter later that day to say that she would be in Hamilton but would be available to meet with the two social workers again at 11 am on 9 October. An appointment was made accordingly. [18] In the meantime, on 6 October, another social worker, Ms Frankie Felton, met with CLM. She observed a large bruise on her face, which CLM explained was the result of walking into a cupboard. She assured Ms Felton that she had not consumed alcohol since April. [19] On 9 October Ms Greening and Ms Rachel Bromley visited CLM's address as arranged. The house was closed up and nobody responded. The social workers left a third business card requesting CLM to contact them. Again she did not respond.Family Court[20] On 13 October Ms Greening swore an affidavit in support of an application for an interim custody order without notice. After setting out the relevant details, she said this:21. In the event that an interim custody order is granted the child will be placed with CYFS approved caregivers, pending a Family Group Conference to decide with whom Unborn [baby] will reside and provide for her care. 22. A Family Group Conference will be arranged as soon as possible. At this stage the earliest this could occur would be towards the end of November.23. A safety plan has been discussed with Ms Felton. It has been agreed that if an interim custody order is granted, [CLM] may spend 24 hours in hospital, under watch, with the child. Provided there are no medical concerns for Unborn [baby] and she is able to be discharged, weekly access for one hour will occur at the Waitakere CYFS office two weeks after placement and be supervised. Future access arrangements will further be determined and clarified at the Family Group Conference.[21] The Ministry applied that day to the Family Court at Waitakere for an order for interim custody of the unborn child. 1 On 14 October Judge Fitzgerald made an order accordingly on the grounds that:The delay that would be caused by making application on notice would or might entail serious injury/undue hardship/risk to the personal safety of child/young person or caregiver or both; As set out in the affidavit of SW sworn 13/10/09.[22] Consequential orders were made including appointment of counsel to represent the child, a direction for service of the proceedings and for the application to be called before a Judge for review within 14 days. [23] Copies of the order and relevant proceedings were served on CLM on 19 October. She instructed Ms Dianne Martin as counsel immediately. Within the next few days Ms Martin filed an application in the Family Court to set aside the order together with supporting affidavits. [24] On 30 October CLM filed her application for judicial review in this Court together with an application for interim relief. Keane J made orders that day staying the interim custody order on conditions that CLM remain in hospital with the child for seven days following birth and abstain from consumption of alcohol or illegal drugs. [25] On 5 November CLM's application for discharge or a rehearing of the interim custody order was determined by Judge Maude in the Family Court. He delivered what was, with respect, a commendably thorough and sympathetic oral judgment. He noted that it was a difficult and sad case. The Judge concluded that the existing1 Section 78, Children, Young Persons and Their Families Act 1989 (the Act).order should be discharged and a new order made on conditions which allowed placement of the still unborn child with CLM. It was by then apparently common ground that the child's safety would be ensured by CLM remaining in hospital with the baby for seven days after birth and then entering a full residential programme for six months at Odyssey House. The Judge made orders accordingly. 2[26] The concluding passages of Judge Maude's decision are noteworthy. He was satisfied that it was "important indeed critical that this child have daily access to its mother". 3 He recorded Ms Greening's concession that CYFS original proposal for CLM to have one hour's supervised access to the baby was "because of financial resource constraints beyond her control within the Ministry". 4[27] On 13 November CLM's baby, M, was born. Mother and baby then lived at Odyssey House in accordance with Judge Maude's decision. [28] On 13 January 2010 Judge Mather, in an equally careful oral decision, dismissed CLM's application for an order discharging the conditions earlier imposed by Judge Maude. 5 He was satisfied that the care and protection conditions previously imposed remained necessary. However, Judge Mather acknowledged the favourable impression made by CLM upon staff at Odyssey House with her commitment to her parenting role; she had positively taken up her responsibilities to M, auguring well for retention of primary care for the long-term. 6[29] CYFS substantive application for a declaration that M is in need of care or protection, and for an order placing M in the Chief Executive's custody, was due for hearing earlier this month.72 Chief Executive of the Ministry of Social Development v CLM and Anor, FC Waitakere FAM-2009-090-1909, 5 November 2009.3 Ibid, at [31].4 Ibid, at [30].5 Chief Executive of the Ministry of Social Development v CLM and Anor, FC Waitakere FAM-2009-090-1909, 13 January 2010.6 Ibid, at [11].7 Sections 67 and 101 of the Act.Judicial Review[30] It must be acknowledged from the outset that CYFS had proper grounds for applying to the Family Court for a declaration that CLM's unborn child was in need of care and protection and, pending determination of that application, for an interim custody order. The evidence justified CYFS concerns about the future welfare of CLM's baby. And while Mr Harrison does not concede that the Family Court has jurisdiction to make an interim custody order for an unborn child, the merits of the substantive order are not in issue in this proceeding. [31] The narrow but important question is whether CYFS was justified in applying without notice for an interim custody order and whether the Family Court had grounds to make the order on that basis. That Court has jurisdiction to grant an application without notice, but only if a Judge is satisfied that the delay caused by applying on notice would or might entail serious injury or undue hardship or risk to the personal safety of the child. 8 Thus an application for a custody order without notice should only be made in special or exceptional circumstances given its inherent departure from the fundamental requirements of natural justice and the underlying right to be heard. 9 The power to make such an order must be "used with great caution and only in circumstances in which it is really necessary to act immediately". 10 The statutory principles favour the parents involvement in decisions relating to their child and an order made without satisfaction of the jurisdictional threshold amounts to a serious procedural impropriety, providing a ground for judicial review. 11[32] It follows that an application without notice and the supporting affidavit must make full and accurate disclosure. While not purporting to be definitive or prescriptive, DE provides these guidelines for inclusion of information in the supporting affidavit:8 Section 220(2)(a)(i) Family Court Rules.9 Martin v Ryan [1990] 2 NZLR 209, at 226-229, approved in DE v Chief Executive of the Ministry of Social Development [2008] NZFLR 85 (CA), at [20].10 Ansah v Ansah [1997] 2 All ER 638 (CA), applied in Martin v Ryan at [229].11 Ibid, at 229-230.[44] It must be remembered that the Rules give authority to act ex parte where the requirements set out in them are met. They do not require the Court to proceed ex parte in those situations. The Court still has to decide whether the circumstances are such that it is necessary to proceed on an ex parte basis. Given the importance in our system of justice of natural justice and the scheme of the CYPF Act, such a decision should only be taken, even if the requirements in the Rules are met, if it is in the interests of the welfare and best interests of the child involved and the concerns cannot be met with an urgent or Pickwick hearing – see Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213 (Ch). [45] This means that the applicant must explain in any affidavit accompanying the application why an urgent hearing on notice or a hearing on a Pickwick basis would not suffice to address the concerns. We consider too that any delay on the part of the applicant in making the application must be explained. We also consider that any applicant for an ex parte s 78 order should indicate whether there was any consideration of using the ss 39 or 40 powers and why they were not used. Although the test for making an ex parte order under s 78, even with the additional criteria in the Rules, is arguably less stringent than that in ss 39 and 40, it would be unusual to make an ex parte order under s 78 in a case thought unsuitable for a ss 39 or 40 warrant, except where an application on notice might trigger a particular risk to the child. [46] Further, where an application is made which relies on information provided by a notifier, full information about that notifier should be given, including in particular the likely reliability of the information received and also full details of any investigation made by CYF to verify the information provided. We consider that the guidelines at R v Williams (2007) 23 CRNZ 1 at [224] (CA) would, with necessary modification, set out the type of information that should be provided. If there is concern about confidentiality, an application for suppression of any details given that might lead to the identification of the notifier should be made. [47] Finally, we consider that the availability and efficacy of any alternative method of protection for the child should be disclosed and assessed in any application under s 78, particularly where the application is made ex parte. Section 73 provides that the Court is not to make a declaration under s 67 unless satisfied that the child's or young person's need for care or protection cannot be met by other means. It follows, in our view, that the same must apply to any application for an order under s 78 pending consideration of the application for a s 67 declaration. [48] In addition, even if a s 67 declaration is made, there is a hierarchy of orders that can then be made. These range from a discharge from the proceedings without further order under s 83(a), through to a custody order under s 101 or a guardianship order under s 110. In between, there are provisions for ordering counselling for the child or the parents under s 86(c), a services order under s 86, requiring services and assistance to be provided to the family for a specified period, a restraining order under s 87, or a support order under s 91, which is an order directing any person or organisation to provide services and assistance to a parent, guardian, or caregiver, or to the child or young person.[49] The scheme of these provisions suggests that the least intrusive order that meets the care and protection needs of the child should be chosen when a s 67 declaration is made. This is also implicit in the principles and purpose of the Act (ss 5 and 13) which emphasise the importance of maintaining and supporting family unity. We consider that the scheme of the Act suggests that the same principles apply to s 78 orders. As Judge Adams has noted, "[i]t is a serious step to break up a family, even for a temporary period of time, by the making of a custody order under section 78 [and] although such orders are made frequentlythey are never made lightly": D-GSW v KCYPF 048/172-179/98 23 September 1998 (FC). There is provision under ss 86A, 88 and 92 for interim orders to be made. Any application for an interim order under s 78 should, in our view, explain why another interim order, such as an interim service, restraining or support order, would not serve adequately to protect the child.[33] Ms Jagose submits that special circumstances existed sufficient to justify CYFS application without notice. She says that by 13 October 2009 CYFS was satisfied that the unborn child's safety was seriously at risk and the situation was sufficiently serious to warrant an urgent application without notice. She points out that, despite being heavily pregnant, CLM continued to consume alcohol and was repeatedly involved in serious violent incidences with her then partner. CLM was showing signs of having suffered physical violence on 6 October, and shortly afterwards failed to attend home visits with social workers. Ms Jagose submits that, because of CLM's previous history and the difficulties with engagement, CYFS was justified in concluding that the unborn child was urgently in need of care and protection and that any delay at that stage of pregnancy may have put the safety of the unborn child at serious risk. [34] Ms Jagose submits that Ms Greening's affidavit satisfied the nine distinctive guidelines or criteria emerging from DE. Furthermore, she says, as anticipated by the Court of Appeal in DE, the Family Court was able to impose checks and balances on the interim custody order made without notice through appropriate terms and conditions. [35] The starting point when considering this issue is Ms Greening's advice to the Family Court that CYFS was proposing a draconian form of intervention; not only would the mother and child be separated within 24 hours of birth, but thereafter the mother's access would be confined to one supervised hour weekly (this limitation was driven, as noted, by financial constraints, not by a concern that longer accesswould be detrimental to the baby's welfare). The biological bond would be severely if not irreparably damaged by the state's forceful intrusion in removing the baby from her mother. Such a result would directly contradict the legislative direction that those exercising statutory powers are to be guided by the principle that, wherever possible, the relationship between a child and her family should be strengthened and maintained.12 And the mother's distress would be compounded by notice of the order just weeks before the baby's birth. [36] Accordingly, the circumstances would have had to be truly exceptional, such as might show that the unborn baby's health and welfare was at immediate risk on 14 October if an order was not made urgently, to justify depriving CLM of the right to be heard on this most fundamental of questions. [37] Ms Greening's reasons for applying without notice were as follows:18. There was significant and previously potential life threatening substantiated concerns for the four children of [CLM] when in her care. Previous history with the Ministry reflects that [CLM] has demonstrated an inability to parent her children and provide an even basic level of parental care or regard for all aspects of their wellbeing. 19. [CLM] is now heavily pregnant but has continued to consume alcohol and be involved in serious violent repeated incidences with Mr Dougherty. 20. [CLM] has presented to the Ministry as a person who is minimising and/or denying that concerns of alcohol and family violence exist, and the risks this lifestyle poses for Unborn [baby] if left in her care. She has been near to impossible to engage with, despite several opportunities to work with the Ministry and take steps to address the concerns held, prior to the birth of Unborn [baby].[38] These grounds did not, in my judgment, approach satisfaction of the statutory threshold of necessity. While Ms Greening's evidence might justify CYFS substantive application for an interim custody order, it fails to explain why the unborn child was in immediate danger on 13 October, when the application was filed. I accept that Mr Dougherty's assaults on CLM might have placed the unborn child at physical risk. But CYFS and the Judge were aware that the interim custody12 Section 5(b) of the Act.order would not take effect until the baby was born without offering the unborn child any protection in the interim. [39] And Ms Greening's affidavit did not explain how or why notice of the application to the mother might endanger the unborn child's welfare. CYFS knew where CLM lived. Her dealings with CYFS had been erratic and she was neglectful in keeping appointments. But there was no suggestion that CLM would deliberately evade service of Court documents or be impossible to find. CYFS also knew where other family members lived. Or it could have given CLM notice of its intention by leaving copies of documents or a warning letter at her address. [40] It must be recorded that the social workers familiar with CLM had met on 14 September for the express purpose of reviewing the welfare of her unborn child. Ms Greening was not present and none of the participants have sworn an affidavit. The extensive notes suggest, as Mr Harrison submits, consensus on a much less interventionist approach than CYFS followed formally a month later. [41] In particular, the social workers were aware of CLM's intention to keep her child. They did not propose that the child should be removed from her mother's custody. Instead, their attention was directed towards taking all possible steps to safeguard both mother and child in the period immediately following birth, focusing on the facilities available at Bethany Hospital or elsewhere. [42] In the month following 14 September Mr Dougherty had trespassed and damaged CLM's property. He may have been the cause of CLM's black eye. These events were arguably relevant to the substantive application for an interim custody order. But they did not justify dispensing with notice. [43] As Mr Harrison submits, if there was a degree of urgency on 13 October, then that factor and protection of CLM's rights could have been accommodated within an application by CYFS filed on notice with an abridged time for hearing of, say, seven days. That step would have given the parties and their counsel an opportunity to confer in the interim on an appropriate temporary measure. Or, ifagreement was not possible, it would have allowed CLM to exercise her entitlement to be heard. [44] This application, I am satisfied, fell well short on its face of meeting the jurisdictional requirements; the resulting order made by Judge Fitzgerald was procedurally defective or improper. [45] I do not wish to sound critical of the Family Court. Judges in that jurisdiction discharge their duties with great skill, care and understanding in very demanding situations. Frequently they are called upon to consider applications without notice where the consequences of refusal may place lives and health at risk. Equally they are aware of the risk of making a without notice order without justification, such as here, where CYFS substantive application for a declaration would not have been heard for some months, and the decision may have been pre-empted by the damage caused to the bond between mother and child in the interim. [46] There is force in Mr Harrison's criticism of formulaic or template decision making. He is referring to what is apparently a standard form used in the Family Court. The only sign of judicial input evident on the face of the order is the Judge's brief handwritten reference to Ms Greening's affidavit together with circles around eight paragraph numbers corresponding with consequential orders. The typewritten alternative grounds - such as "serious injury/undue hardship/risk" - were not deleted. Similarly the reference to a "child/young person" remained unchanged. [47] In DE the Court of Appeal said this:[99] It is incumbent on a Judge who makes a s 78 order upon an ex parte application, if at all possible, to provide at least brief reasons to explain to parents and caregivers why the order has been made and in particular why the requirements in the Rules for ex parte orders were met. At the least, the court should organise a review hearing date, preferably within the timeframe set out at s 45 of the CYPF Act but in any event within 14 days. The date of this hearing should be notified to the parents or caregivers when they are served with the order.[48] The Family Court's use of a standard form interim custody order has obvious benefits for ensuring that all necessary conditions, or what the Court of Appeal described in DE as the checks and balances, are considered on an application withoutnotice. However, the judicial requirement for brief explanatory reasons, emphasised in DE, was not satisfied by a standard form recital of the statutory grounds for applying without notice or by a brief notation of the supporting affidavit, especially in a case like this. There was nothing to indicate that the Judge had considered why this particular application should proceed without giving CLM a right to be heard or exploring an alternative. [49] I accept that the Judge imposed a condition for review within 14 days. But the utility or efficacy of that step would have been greatly reduced if the baby was born and removed from her mother in the interim. Furthermore, as Mr Harrison points out, the Court failed to arrange a review date. That step of review in the Family Court only occurred because Ms Martin acted with commendable speed and efficiency in organising an urgent application to discharge the interim order. [50] The Family Court may be assisted in the future by adopting the practice followed in this Court where counsel are required to file a supporting memorandum, fully explaining the legal and factual basis for the application without notice. This obligation imposes its own discipline on counsel, emphasising the duty to identify precisely the particular fact-specific ground which justifies dispensing with notice. In this case, responsibility within the Ministry for filing the without notice application without proper grounds rested with its solicitor, and not with Ms Greening or any of the other social workers.Declaratory Relief[51] Ms Jagose submits that CLM is not entitled to declaratory relief even if either the Ministry or the Family Court did act improperly. She says that Judge Maude's decision following a full hearing cured any earlier defects. In support she relies on this passage from DE:[97] The full hearing by the Family Court of the application to set aside the s 78 order satisfied the requirements of natural justice and the decision after that full hearing must now be the operative decision justifying the detention. To that extent, the full hearing must be seen as having 'cured' the defects in the s 78 interim custody order. This is another reason that the appeal cannot succeed.[52] However, that statement was made in a different context. DE concerned an appeal against a decision of this Court refusing to grant a writ of habeas corpus where the Family Court had made an interim order without notice for the custody of an eight week old infant. Asher J held that the Family Court order was valid, even though there were serious inadequacies in the material filed in support of the originating application, and that the child's detention was lawful. The Family Court on Asher J's initiative heard and dismissed an on notice application by DE to set aside the original s 78 order before the appeal was heard. Accordingly, the Court of Appeal treated the Family Court's decision as being the operative decision justifying detention. [53] Earlier, in Nicholls v Registrar of the Court of Appeal, Tipping J considered the principles governing the curative effect of a subsequent decision within an application for judicial review. 13 He summarised the effect of Calvin v Carr14 as affirming that there is no absolute rule one way or another. He observed that:15Whether an appeal (or its equivalent) cures problems with the first instance decision must depend on the circumstances. It is fair to say that an appeal cannot logically be regarded as curing any defect at first instance in an absolute sense. The defect still exists, but in its discretion, the Court may take the view that, as a result of an appeal or review, the party complaining has had substantial justice and thus no remedy should be granted in respect of the first decision.[54] Tipping J later outlined in Nicholls what he regarded as the correct approach in these terms: 16The Court should first identify the error, or errors, which are said to vitiate the first instance decision. The second step is to examine what effect the appeal has had on the error, or errors, found at the first stage. If the appeal has in substance removed the prejudice which would otherwise have resulted to the complaining party, the Court should exercise its discretion against relief, because overall no continuing prejudice from what went wrong at first instance can be shown. Where, as here, there has been review by way of a rehearing, which is said to have cured any earlier problems, I would put the onus on the applicant for judicial review to demonstrate continuing prejudice.13 Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 435-437.14 Calvin v Carr [1980] AC 574 (PC).15 Nicholls v Registrar of the Court of Appeal, above n 13, at 436.16 Ibid, at 436-437.[55] The error which vitiated the first decision in this case has already been identified - making a s 78 order without notice to CLM. Ms Jagose is correct that the on notice hearing before Judge Maude three weeks later cured the original procedural defect to the extent that CLM was granted an opportunity to be heard. And the conditions imposed on the second order righted the earlier wrong. In that sense, CLM has suffered no continuing prejudice from what went wrong in the first place. It could be said that she was heard on 5 November 2009 as if the originating application made on 13 October was on notice. [56] CLM would not have been entitled in this Court to the substantive remedy of an order quashing the first order made in the Family Court. That order, like the original interim order in DE, is no longer operative by virtue of the second order. However, CLM is not seeking that remedy. All she seeks is a declaration that the Ministry's application, and the Family Court's order, breached her entitlement to natural justice. [57] In my judgment the second order made in the Family Court did not, and could not, cure the original procedural defect. I agree with Mr Harrison that, where an individual's NZBORA rights have been breached, declaratory relief is now the primary remedy. It is appropriate in this case both in recognition of, and to address, the affront to CLM, and to serve the salutary effect of requiring future compliance by statutory authorities. 17[58] I do not accept Ms Jagose's submission that a declaration would be disproportionate to the wrong, as it was only a combination of good fortune that the baby was not born before the hearing on 5 November and Ms Martin's efforts which protected CLM and her child from the damaging contingency of enforcement of the original order. [59] Accordingly, I am satisfied that CLM is entitled to declaratory relief as a formal vindication of her right to natural justice and a recognition of its breach. The question is whether it should be limited to the Family Court or extend to the Ministry.17 Taunoa v Attorney-General [2008] 1 NZLR 429 (SC), per Blanchard J at [255].[60] Mr Harrison did not address a developed argument in support of a submission that the Ministry should be subject to a declaration. It was the applicant but the order was made by the Family Court. Arguably the Ministry's decision to apply was reviewable. But given that the operative decision was solely the responsibility of the Family Court, and my satisfaction that the Ministry's participation can be addressed through an order for costs, I do not have a proper basis for extending declaratory relief to the Ministry's action. [61] Similarly, I reject Mr Harrison's submission that the Ministry's insistence on immediate enforcement of the first order can be the subject of relief. While the Ministry is a public authority, it was nonetheless exercising its rights within the adversarial setting of the legal system. Both the option to apply without notice for a s 78 order and to enforce it were lawfully available.Result[62] I declare that the decision of the Family Court at Waitakere on 14 October 2009 to make an order without notice to CLM placing her then unborn child in the interim custody of the Ministry breached CLM's right to natural justice under s 27(1) NZBORA 1990. [63] Costs normally follow the event. CLM is not legally aided. The Ministry is ordered to pay costs and disbursements. [64] Mr Harrison sought an award for increased or indemnity costs based on what he describes as high-handed behaviour by the Ministry's representatives, both in applying without notice and in refusing to co-operate in suspending enforcement of the first order once CLM was served and made known her intention to apply to set it aside. He submits that an application for judicial review would not have been necessary but for the Ministry's intransigence and irrationality. In the result, CLM was forced to obtain an interim order in this Court on 30 October, largely on the same conditions as those imposed on the second order in the Family Court, when her complaint could have been dealt with promptly and efficiently, with the Ministry's co-operation, in the Family Court.[65] I have some sympathy for Mr Harrison's argument. The conduct of the Ministry's solicitor in failing to respond constructively to proposals made by Ms Martin for interim resolution was unsatisfactory, arguably arbitrary. And Ms Jagose has properly drawn my attention to authority which might be invoked in support of an application for indemnity costs.18 However, on balance, taking into account the overall circumstances of the case and the declaratory element of the remedial package, I am not prepared to make an order for increased or indemnity costs. [66] The Ministry is ordered to pay costs and disbursements to CLM according to category 2B. [67] I wish to compliment counsel on the quality of argument advanced in this difficult case. ________________________________ Rhys Harrison J18 Ibid, at [334].