S v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV 2011-485-000439

S v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV 2011-485-000439

On the balance of probabilities the children had been subjected to repeated and unacceptable physical abuse by the mother (and by the stepfather); the mother had not demonstrated reliable, tested change; imposing s103 conditions was unlikely to protect the children or secure their safe return; accordingly the Family Court's s101 custody order in favour of the Chief Executive and its refusal to impose s103 conditions were properly made.

Citation
openlaw-bf7ddb26_ec80_4383_8ed0_c4a1a2985314.pdf
Parties
Appellant (the Mother): S; First Respondent: Chief Executive of the Ministry of Social Development; Second Respondent (the Grandmother): L
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 July 2011
Procedural Posture
Care and Protection Proceedings Under the Children, Young Persons, and Their Families Act 1989 (custody/care and Protection) / High Court Appeal Against Family Court Custody Order and Refusal to Impose S103 Conditions (judgment)
Outcome
Appeal dismissed; Family Court s101 custody order in favour of the Chief Executive upheld; refusal to impose s103 conditions upheld
Legal Topics
Custody Orders, Care and Protection Declarations, Section 101 CYPF Act, Section 103 Conditions, Section 125 Variation, Parental Violence/physical Abuse, Forensic Child Interviews, Contact/access Orders, Uplift of Children
Family Law Child Protection Criminal Law (domestic/assault) Immigration (ancillary) Custody Orders Care and Protection Declarations Section 101 CYPF Act Section 103 Conditions +5 more

Case Brief

Summary, issues, holding and outcome

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Parties

S

Appellant (the Mother)

Chief Executive of the Ministry of Social Development

First Respondent

L

Second Respondent (the Grandmother)

Procedural Posture

Care and Protection Proceedings Under the Children, Young Persons, and Their Families Act 1989 (custody/care and Protection) / High Court Appeal Against Family Court Custody Order and Refusal to Impose S103 Conditions (judgment)

Legal Issues

  1. 1 Whether Family Court erred in findings of fact regarding mother's (and stepfather's) violence
  2. 2 Whether s101 custody order in favour of Chief Executive was justified
  3. 3 Whether the Judge should have imposed s103 conditions to facilitate return of children

Ratio Decidendi

On the balance of probabilities the children had been subjected to repeated and unacceptable physical abuse by the mother (and by the stepfather); the mother had not demonstrated reliable, tested change; imposing s103 conditions was unlikely to protect the children or secure their safe return; accordingly the Family Court's s101 custody order in favour of the Chief Executive and its refusal to impose s103 conditions were properly made.

Court Disposition

Appeal dismissed; Family Court s101 custody order in favour of the Chief Executive upheld; refusal to impose s103 conditions upheld

Orders

  • Appeal dismissed
  • Family Court custody order under s101 in favour of the Chief Executive of the Ministry of Social Development upheld