COUNCIL FOR THE ONGOING GOVERNMENT OF TOKELAU v AG [2022] NZHC 2991

COUNCIL FOR THE ONGOING GOVERNMENT OF TOKELAU v AG [2022] NZHC 2991 [15 November2022]THE IDENTITY OF THE CHILD IS SUPPRESSEDIN THE HIGH COURT OF NEW ZEALANDSITTING AS THE HIGH COURT OF TOKELAUI TE FALE FAKAMAHINOGA HILI O NIU HILAE NOHO MALUTIA AI TE FALE FAKAMAHINOGA HILI O TOKELAUCIV-2022-485-728[2022] NZHC 2991BETWEEN COUNCIL FOR THE ONGOINGGOVERNMENT OF TOKELAUApplicantAND AGFirst DefendantAND FISecond DefendantAND PGThird DefendantAND TFFourth DefendantHearing: 14 November 2022Counsel: J LWademan for the ApplicantJudgment: 15 November 2022JUDGMENT OF PALMER JCounselJ L Wademan, Barrister, WellingtonOrders[1] Late on 14 November 2022, sitting as the High Court of Tokelau, I granted anurgent application without notice by the Council for the Ongoing Government ofTokelau (the Council) that:1. Until further order of the Court, the female child, [the child], born [in2018] in New South Wales, Australia, but habitually resident anddomiciled in Tokelau, is a ward of this Court.2. Until further order of the Court, the Minister of Education of theOngoing Government of Tokelau, the Honourable Elehi KelihianoKalolo is delegated the authority of this Court to make all necessarydecisions regarding the guardianship and care of [the child].3. The Honourable Minister Elehi Kelihiano Kalolo is to provide thisCourt with regular written reports regarding the guardianship and careof [the child] 28 days after the making of this order, and every threemonths thereafter, or at any time when requested to do so by this Courtin a timely manner.[2] The names of the family members involved have been anonymised to protectthe identity of the child. This judgment records my reasons for making those orders,based on the evidence before me of:(a) Elehi Kelihiano Kalolo, the current Minister of Education and formerUlu-o-Tokelau, head of the Council, as Faipule of Atafu.(b) Aukusitino Vitale, General Manager National of the Office of theCouncil, on behalf of the current Ulu-o-Tokelau and the Council.What happenedThose involved[3] The child is four years old. Her birth mother and her birth father are not in arelationship and reside in Australia. After the child's birth there was apparently anagreement, between the mother and the paternal grandmother, that the grandmotherwould take care of the child. From the age of six months, since September 2018, thechild has resided with the grandmother on Fakaofo in Tokelau. They are all citizensof Tokelau. Tokelau has been subject to a strict Covid-19 lockdown since April 2020.The incident[4] On 5 November 2022, the grandmother and the child left Fakaofo on the cargoship Kalopaga, for Samoa. It was intended that the child would fly to Australia withthe father to attend a Family Court hearing in New South Wales to determine childsupport, a name change, and parenting orders. The grandmother and her husbandwould follow.[5] The grandmother's husband was told there was no room for him on theKalopaga, although subsequent inquiries suggest that was not the case. OnWednesday 2 November 2022, the Kalopaga's schedule was changed so that it wouldstop at Atafu on Saturday 5 November 2022, rather than Friday 4 November 2022.The passenger ship Mataliki was also in Atafu on Saturday 5 November 2022. Themother was a passenger on the Mataliki. She did not meet the repatriation criteria toenter Tokelau.[6] The child's maternal step-grandfather was the Acting Director of the Office ofTaupulega of Atafu and an Aumaga Committee member at the time. A report of theDepartment of Transport and Support Services of 5 November 2022 indicates that hethreatened the crew of the Kalopaga over the ship radio, telling them that an incidentwould happen that morning and they should avoid getting involved. If the child wasnot transferred ashore, the ship to shore operation would be discontinued. He said hehad permission from the Atafu Taupulega and the Law Commissioner to remove thechild. The step-grandfather sent an email that day which stated there was a collectiveagreement with the leaders of Fakaofo, his children, the grandmother and her husbandto bring the child to visit. Fakaofo officials say there was no agreed time as to whenthe visit would happen. The step-grandfather says the grandmother had changed fromthe Mataliki to the Kalopaga to avoid meeting the mother. He said the LawCommissioner and the Atafu Taupulega consented to the decision for the Police toboard the Kalopaga to uplift the child and to breach the Covid-19 protocol. The Officeof the Taupulega and the Law Commission say that is false.[7] The evidence before me is that on Saturday 5 November 2022, at Atafu, themother was picked up by a barge from the Mataliki. The barge approached theKalopaga, and mother and a uniformed Police Constable (the mother's brother-in-law), boarded the Kalopaga. After a struggle, the Constable wrestled the child awayfrom the grandmother and gave her to the mother who took her on the barge to Atafu.The grandmother has complained to the Atafu Taupulega and the Law Commissionerof Atafu about this incident and the way she was handled by the officer. The motherand the child have been in quarantine together since then, which was due to end on orabout today, Tuesday 15 November 2022. The Constable and his wife, the child'smaternal uncle and aunt, have expressed a wish to adopt the child.[8] The grandmother was not allowed to go with them, even though her mother isfrom Atafu which grants her an automatic right to enter Atafu. Later, followingintervention of the Council, the Ulu-o-Tokelau, Aukusitino Vitale, and the NewZealand Administrator, Don Higgins, the grandmother was allowed ashore on Atafu.She was quarantined separately from the mother and the child and her quarantine wasalso due to end today.Governance[9] Tokelau is a non-self-governing territory of New Zealand. It has expressed itsdesire to move towards greater self-government, which both the New Zealandgovernment, and the United Nations Special Committee on Decolonization support.1The administrative and legislative powers of the Administrator of Tokelau aredelegated to the three Taupulega of the three villages of Tokelau. Authority fornational issues is delegated to a General Fono and there is also an elected ExecutiveCouncil:(a) The General Fono comprises representatives of the Taupulega (VillageCouncil of Elders), Fatupaepae (Women's Group) and AumagaTaulelea (Men's Group).(b) The Council is comprised of the three Faipule (Village Head) and thethree Pulenuku (elected Mayor) of the three villages of Atafu,1 See United Nations Draft resolution on the question of Tokelau A/AC.109/2021/L.23 (18 June2021).Nukunonu and Fakaofo. It is chaired by the Ulu o Tokelau on a rotatingbasis and there are eight ministerial portfolios. The Office of theCouncil for the Ongoing Government of Tokelau rotates with theuluship and is responsible for providing support and advice to theleaders of Tokelau when the Fono is not in session.[10] On Friday 11 November 2022, at a meeting of the Taupulega and theAdministrator, the Acting Faipule of Atafu apologised and stated the Taupulega hadno knowledge of, and had not approved, the removal of the child from the Kalopaga.The Taupulega of Atafu is investigating these events.[11] At 7 pm on 11 November 2022, the Council held an emergency meeting. TheUlu declared a conflict of interest as first cousin of the grandmother. The Council wasconcerned that the child could potentially be removed from Tokelau. The Councilresolved to apply to the High Court of Tokelau for wardship orders. It resolved tonominate Elehi Kelihiano Kalolo, the Minister of Education and Faipule of Atafu, toaccept any delegation of powers from the Court. Elehi Kelihiano Kalolo states:32 The Council acknowledge that the present application is unprecedentedin Tokelau. It is the sincere wish of the Council that this unfortunatefamily law dispute between the families be resolved using time honouredTokelauan culture and custom.33 However the Council is also conscious that until some formal and cordialagreement has been reached between the families of [the child] that herimmediate health and well-being is paramount over everything else.34 The Council and I are therefore of the view that the best outcome for [thechild] is to make her a Ward of this Honourable Court and that if thisHonourable Court considers it appropriate, that I am appointed to makeall guardianship and care decisions in respect of [the child] until furtherorder of the Court.Relevant law[12] The High Court of New Zealand, sitting as the High Court of Tokelau, hasjurisdiction to administer the law under s 3 of the Tokelau Amendment Act 1986 (NZ),which is to be read with the Tokelau Act 1948 (NZ). That jurisdiction may beexercised in the same manner as if Tokelau is part of New Zealand, but subject to theprovisions of any regulations and any rules made by the General Fono. This Court haspreviously held that its jurisdiction will be exercised as it usually would under theHigh Court Rules 2016, subject to the provisions of any rules made by the GeneralFono.2[13] The Fono has made the Crimes, Procedure and Evidence Rules of Tokelau2003 (the Rules). Relevantly, r 87 provides that, unless the Court otherwise directs,cases should be decided on the papers. Rule 93 provides that judgments should be inwriting.[14] Tokelau's legislation does not provide for care and guardianship of a child bornout of wedlock, as here.3 Foreign custody orders can be registered and enforced butthere is no evidence of such an order here. Accordingly, s 4B(1) of the Tokelau Act isrelevant. It provides that the English common law is enforceable in Tokelau unlessexcluded by any other law enforceable in Tokelau or it is inapplicable to thecircumstances of Tokelau.[15] English common law emphasises the importance of the welfare and the bestinterests of the child. This is also the case in other common law jurisdictions. On anappeal from Canada the Privy Council in McKee v McKee observed, "It is the law ofOntario (as it is the law of England) that the welfare and happiness of the infant is theparamount consideration in questions of custody."4 The Hague Convention on ChildAbduction and the United Nations Convention on the Rights of the Child have asimilar emphasis.5 Halsbury's Laws of England outlines the inherent jurisdiction, andduty, of the High Court to take care of children who are not able to take care ofthemselves.6 In Re P (G E) (an infant), the Court of Appeal held that jurisdiction couldbe exercised in respect of a child ordinarily resident there.72 Sam v Council for the Ongoing Government of Tokelau [2012] NZHC 2775, [2012] TKHC 1.3 Compare with the Divorce Rules 1987, r 13(1)(i).4 McKee v McKee [1951] AC 352, [1951] 1 All ER 942 at 363 – 364.5 Convention on the Civil Aspects of International Child Abduction 1343 UNTS 98 (opened forsignature 25 October 1980, entered into force 1 December 1983); United Nations Convention onthe Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force2 September 1990).6 Clare Blanchard and others (ed) Halsbury's Laws of England: Children and Young Persons (5thed, LexisNexis, Wellington 2008 – 2014) vol 9 at [284] and [286].7 Re P. (G.E.), an Infant [1964] 3 All ER 977 at 988.Submissions[16] Ms Wademan, for the Council, submitted that the doctrine of parens patriae beinvoked by the Court and that the Minister of Education, for the Council, act as agentof the Court. As an interim measure, the Council intends to restore the situation tothat which existed before the 5 November 2022 incident, where the child is in the careof her paternal grandmother. Investigations and discussions will be held into themedium and longer term care and guardianship of the child. These processes wouldbe based on the collaborative culture and customs of Tokelau. Ms Wademan submittedthat the evidence before me, which is the best available in the time available,demonstrates the urgent need for official intervention before the child's quarantineends. In the absence of the order sought, the Council does not consider there is anybasis for it to intervene and the child may well be taken out of the Tokelauanjurisdiction, contrary to her best interests and welfare.Reasons for the orders[17] I consider the interests of justice, and particularly the interests of child,required me to consider this urgent application without notice to the defendants. Timewas of the essence, given the imminent release of the child and the mother fromquarantine, and the lack of other lawful means to ensure the child remains in Tokelauwhile the dispute is resolved.[18] The dispute is clearly best resolved through Tokelauan custom and processes.The role of the Court is to ensure the parties have the time and space to do that. Iconsidered that is best achieved by exercising the Court's jurisdiction to make the childa ward of the Court and for the Minister of Education and Faipule of Atafu to have theauthority to make all necessary decisions regarding her guardianship and care. I wasparticularly mindful of the Minister's intention to restore the child to the care of herpaternal grandmother. That is the situation she has been in for all but six months ofher life. The evidence before me is that that situation is in her best interests, while thecurrent dispute is sorted out.[19] Accordingly, I made the orders sought, as quoted at the beginning of thisjudgment. I reserve leave for any of the parties to apply to vary the orders on fiveworking days' notice.Palmer J