OʼCONNOR v THE CHIEF EXECUTIVE, MINISTRY OF VULNERABLE CHILDREN, ORANGA TAMARIKI [2017] NZHC 2646

OʼCONNOR v THE CHIEF EXECUTIVE, MINISTRY OF VULNERABLE CHILDREN, ORANGATAMARIKI [2017] NZHC 2646 [27 October 2017]ORDER PROHIBITING PUBLICATION OF THE NAME OR ANYIDENTIFYING PARTICULARS OF THE YOUNG PERSON WHO IS THESUBJECT OF THIS APPLICATION: SEE PARAGRAPH [56]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2017-409-000844[2017] NZHC 2646BETWEEN KRISTINA MARY OʼCONNOR,LAWYER OF CHRISTCHURCH ASLITIGATION GUARDIAN FOR CApplicantAND THE CHIEF EXECUTIVE, MINISTRYOF VULNERABLE CHILDREN,ORANGA TAMARIKIRespondentHearing: 26 October 2017Appearances: G Tyrrell for the ApplicantC J Lange for the RespondentJudgment: 27 October 2017JUDGMENT OF DUNNINGHAM JNote: the name of the young person in question and of the public schools he attended have been anonymised in this judgment to protect the youngperson's identity.Introduction[1] C is a 16 year old boy with complex behavioural and learning difficulties. He is subject to an order under s 101 of the Oranga Tamariki Act 1989 (the Act), placing him in the custody of the Chief Executive of Oranga Tamariki.[2] His litigation guardian, a practicing lawyer, is challenging the legality of Cbeing placed at Te Puna Wai O Tuhinapo ("Te Puna Wai") by bringing thisapplication for a writ of habeas corpus. She claims that C is being unlawfully detained at Te Puna Wai, in breach of his rights under ss 22 and 23(1)(c) of the New Zealand Bill of Rights Act 1990, and is seeking the release of C from Te Puna Wai.[3] The respondent, the Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki, opposes the application. She claims the placement of C at Te Puna Wai is authorised through the combination of the custody order made in favour of the respondent under s 101 of the Children, Young Persons and Their Families Act 1989 and the provisions of s 365 of the Act, which allow her to place children and young persons who are in her custody, in any residence established under s 364 of the Act. This includes a youth justice residence such as Te Puna Wai.[4] In any event, the respondent says that the complexity of C's care andprotection needs are not amenable to the summary procedure which is invoked in habeas corpus proceedings. They are more appropriately addressed by the specialist Family Court as envisaged by s 13 of the Habeas Corpus Act 2001, so I should decline the application under s 14(1A) of that Act.The issues[5] The key issues in this case are, therefore:(a) Is there a detention?(b) If C's placement at Te Puna Wai is a detention, is it lawful?(c) Regardless of the answer to (b), is the application the appropriate procedure for considering the allegations by the applicant?Background[6] C and his family have been involved with Oranga Tamariki (previously Child Youth and Family) for his entire life. The initial concerns included parentalneglect, poor diet, and his mother's mental illness. Matters culminated in July 2005,with a s 101 custody order being made in favour of the Chief Executive of what was then known as the Ministry of Social Development.[7] As outlined in an affidavit from his social worker, Cherie Mann, C has sincebeen in various placements throughout his life, including in children's homes andwith CYF carers. His behavioural difficulties meant that he was removed from mainstream schooling early on, and placed in A Residential School.[8] For some years he lived in relative stability with CYF carers. Unfortunately, in 2012, the father in that household died unexpectedly, and the mother could not cope with C's volatile behaviour and physical and verbal abuse. Before he left thishousehold he had been transitioned to B Model School, but was eventually stood down because of his aggressive behaviour. His placement in Highstead family home also was unsuccessful as he allegedly assaulted another boy in the home, and he was moved to a specialised group home, Kokurihuri.[9] He was diagnosed with attention deficit hyperactivity disorder (ADHD) in 2013. With the support of the intensive wrap around service of the Ministry of Education in 2014, he was settled into C School. However, his behaviour at school again deteriorated and he was also becoming physically aggressive towards staff at Kohurihuri. By September he was threatening suicide and was referred to Mental Health Services for an assessment while being stood down for school. He was then placed at Martindale family home.[10] Throughout these placements he continued to have regular access with his parents which had always been important for him. However, his mother died in December 2014 which caused significant trauma for him. C attempted to run in front of a car and was then admitted under the Mental Health Act for assessment. He was found to have possible post-trauma stress disorder tendencies. While living at the Martindale family home he allegedly sexually assaulted another young personliving at the home and was placed back at the group home Kohurihuri. There was a brief attempt to have C attend D High School but it lasted for only a few days before he was stood down for abusive behaviour towards teachers there.[11] Because C was becoming increasingly violent towards staff at Kohurihuri, he was placed at Te Oranga, a Ministry Care and Protection residence, from 4 May 2015 to 8 July 2015. He was then transitioned back to Kohurihuri and enrolled at E High School. However, he continued with his suicide attempts and hisphysical abuse towards staff. He was then transitioned back into his birth father'scare, but with support from his adult sister as well. However, his father struggled to care for C. During this period C was referred to a STOP programme due to his harmful sexualised behaviour in the group homes.[12] In April 2016, C was stood down from school and his various behavioural issues and suicidal thoughts continued. His father was not coping as C was absconding from home, associating with younger children and refusing to comply with safety plans around his harmful sexual behaviour. It was decided that C would not be safe to complete the STOP programme in the community and he was placed at Te Poutama Arahi, a specialist residence for young males with harmful sexualised behaviour.[13] Once he was settled into this placement, the incidents of physical and verbal aggression reduced, but when they did occur, they escalated in severity. Staff were getting physically assaulted by C and were physically injured, requiring them to take time off work for extended periods of time. This culminated in an incident at the school at Te Poutama Arahi when police were called. C was removed from the premises and taken to Court where he was charged with assault with intent to injure.[14] On 6 September 2017 he was granted bail by the Youth Court under s 238(1)(b) of the Act and directed to stay where the social worker states. As Te Poutama Arahi would not accept C back at their residence, C was taken to the Christchurch West Oranga Tamariki office until a placement could be found for him. It was then decided that C would be temporarily placed at Te Puna Wai until alternative arrangements could be made for him.[15] Cherie Mann explains that she has continued to be involved with C while he has been at Te Puna Wai, talking to him by telephone, arranging outings and appointments with him, and facilitating access between C and his father. Attempts were made to see if C would be allowed back to Te Poutama Arahi, but unfortunately staff there decided it was inappropriate to place him there. Social workers have investigated other options, including a residential facility called Te Whare which is designed for young men who have engaged in harmful sexual behaviour. They were expecting a decision from Emerge Aotearoa, which runs Te Whare, by Wednesday 25 October 2017 as to whether he could be placed there. I was advised from the bar that a placement has now been made available at Te Whare commencing in a little over two weeks.[16] In the meantime, C continues to reside at Te Puna Wai, where he engages in the technology class, family therapy and the STOP programme. Ms Mann explains that his placement at Te Puna Wai is different from the other residents who need to remain at Te Puna Wai at all times, be escorted by two workers if they leave the premises, and to follow the programmes in place. C is able to leave Te Puna Wai as agreed with his social worker, have visits at home with his father, go out with his mentor and choose the programmes that he wants to take part in.[17] She acknowledges that this is not the preferred placement for C but says it is the only short term option that Oranga Tamariki has, given his complex needs. She considers that in this environment C is "the most stable he has been in recent times"and she does not believe it would be in C's best interests to move him from thisplacement for a short period of time until his long term placement is decided.Applications for a writ of a habeas corpus[18] Section 6 of the Habeas Corpus Act 2001 permits an application to be madeto challenge the legality of a person's detention through an application for a writ ofhabeas corpus. Under the Act, "detention" is defined as including "every form of restraint of liberty of the person". Given the importance of personal liberty, there arevarious provisions of the Act which require the Court to deal with such an application urgently.[19] If the defendant fails to establish that the detention is lawful, the High Court must grant a writ of habeas corpus ordering the release of the detained person from detention.1 However, that is subject to an exception contained in s 14(1A). That section provides that the Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained personis lawful, if the Court is satisfied that "an application for the issue of a writ of habeascorpus is not the appropriate procedure for considering the allegations made by theapplicant".Is C detained?[20] The applicant considers the Chief Executive's decision to direct C to reside at Te Puna Wai youth justice facility comprises a detention under the Habeas CorpusAct 2001. Section 3 of that Act defines detention widely as including "every form of restraint of liberty of the person". Te Puna Wai is a youth justice residence and is designed to house young people who have "been remanded or sentenced by theYouth Court".2[21] Mr Tyrrell submitted that C had been granted bail by the Youth Court but, through placing him at Te Puna Wai, that decision has effectively been thwarted. C has, in practical terms, been detained by the respondent without the respondent having to satisfy herself of the matters in s 239 of the Act which the Court would have been required to be satisfied of before detaining C.[22] He also directed me to an aerial photograph of the facility at Te Puna Wai to substantiate his assertion that Te Puna Wai is a custodial environment. It shows that Te Puna Wai comprises a collection of buildings surrounded by a large perimeter security fence, and with some buildings having further internal security fencing around them.[23] The applicant explained that C is unable to leave freely. He cannot be visited without the visitor obtaining permission and entering a secure area and being1 Section 14(1).2 Being the language used on the website which describes the role of Te Puna Wai and its on-site school, Kingslea School.escorted by facility staff. He is also, at least in some respects, treated like those who are remanded there in custody. For example, on at least one occasion, C has been transported to Court in a secure people mover vehicle, being the same vehicle which is used to transport young people who are held in custody at Te Puna Wai.[24] Mr Tyrrell emphasised the broad definition of detention under the Habeas Corpus Act, and the fact that it encompasses restraints which go beyond detention in a prison or by an arresting police officer. As the Court of Appeal said in R v Goodwin:3 in the context of the Bill of Rights whether there has been an arrest or detention under any enactment is a question of fact depending on all the circumstances of the case.It does not depend on the intention of the detainer, but rather "what was actually said or done to the person".4 In this case, C is held in circumstances which are effectively a form of custody and which must inevitably be a detention under the Habeas Corpus Act 2001.[25] The respondent responsibly acknowledged that placement in a secure facility such as Te Puna Wai does involve some restraint on the liberty of the person and is, therefore, a detention. However, the placement of a child or young person in arrangements which are designed for their care and protection is far removed from ordering an adult to be released from unlawful detention. The critical issue is whether the restraints on that young person are lawful.Discussion[26] In my view, in cases involving children and young people who are under care and protection, it is inevitable that the authorised carer will impose some form of restraint of liberty on the child and the broad definition of detention will be readily met, even in less obvious circumstances than here. For example, even where a child or young person is simply in the care of one parent, that can amount to an unlawful detention when the parent has taken control of the child or young person in breach of3 R v Goodwin [1993] 2 NZLR 153.4 At [158].Court orders or, even, a private care arrangement.5 For the purposes of an application for writ of habeas corpus, the focus in such cases is on whether that detention is lawful.[27] In my view, C is subject to restraints on his liberty at Te Puna Wai, as, no doubt, he has been in other residential facilities he has been in. He is therefore"detained".Is the detention lawful?[28] The respondent bears the onus of showing that C's detention is lawful.6 It is acknowledged that the defendant was granted custody of C under s 101 of then the Children, Young Persons and Their Families Act 1989. The grant of custody underthe Act means the respondent has "the right to possession and care of a child oryoung person".7 However, the applicant emphasises that the respondent's actionswhen exercising that custody must be consistent with the objects of the Act set out in s 4, the principles of the Act set out in s 5, and the requirement in s 6 that "thewelfare and interests of the child or young person shall be the first and paramountconsideration" in all matters relating to the administration or application of the Act.[29] I was also directed to s 25(i) of the New Zealand Bill of Rights Act and New Zealand's obligations under the United Nations Convention on the Rights of theChild including, in particular, the requirement under Article 37 that:[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.[30] None of this was controversial and the respondent accepted that these considerations governed the exercise of the grant of custody.5 See Olsson v Culpan [2017] NZHC 217.6 Habeas Corpus Act 2001, s 14(1).7 Section 2.[31] The applicant acknowledges that s 104 permits the Chief Executive to place C "in such residence, as the principle manager of the department for the area may direct". A residence is defined in the Act as:Residence –(a) means any residential centre, family home, group home, foster home, family resource centre, or other premises or place, approved or recognised for the time being by the Chief Executive as a place of care or treatment for the purposes of this Act; and(b) includes any place of care or treatment, so approved, whether administered by the Crown or not; but(c) does not include-(i) a prison; or(ii) a psychiatric hospital or facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or(iv) a children's health camp operated by Children's HealthCamps – the New Zealand Foundation for Child and Family Health and Development.[32] Section 364(2) of the Act gives the Chief Executive authority to establish residences, including for any of the following purposes:(a) remand, observation, assessment, classification, and short term training purposes;(b) the provision of a variety of programmes of special training and rehabilitation;(c) the provision of periodic training, of recreational, educational, or vocational activities, or of work either in a residence or in the community under supervision;(d) the provision of secure care.[33] Although s 365 authorises the Chief Executive to place a young person under his or her care or custody in a residence established under s 364 of the Act, the applicant submits this does not extend to a power to effectively keep C in custody. While the applicant accepts that Te Puna Wai is not gazetted as a prison, Mr Tyrrell urged me to look at the substance of what it provides. It is commonly referred to asa "youth prison" and it is where C would have been detained had he not been granted bail. Thus, while it may technically be a residence for the purpose of s 364, C should, instead, be placed in a residence designed to provide care and protection, not custody.[34] The applicant also argues that because Te Puna Wai provides a form of"secure care" as defined in the Act, the Chief Executive was required to comply withthe grounds for placement of C in secure care as outlined in s 368. In the absence of compliance with s 368, and given the purposes for which the power is granted to the Chief Executive under s 101, the detention at Te Puna Wai is unlawful and the writ should be granted.The respondent's submissions[35] The respondent relies on s 101 order as supporting the lawfulness of the detention. It provides a statutory authority for the decision to place C in a residence, as defined, which includes Te Puna Wai. While the applicant may disagree with the suitability of that placement, that does not make it unlawful. In any event, given the complexity of C's care needs, the remedy does not lie in habeas corpus proceedingsbut, rather, by way of application to the Family Court.Discussion[36] I accept the respondent's authority to place C in his current living arrangements stems from the custody order made under s 101 of the Act. That order allows the respondent to place C in "any residence". While the application wasinitially brought on the basis that Te Puna Wai was a prison, it was accepted by the respondent that the Corrections Act 2004 defines a prison as a prison established or deemed to be established under s 32 of that Act and requires the Minister, by notice in the Gazette, to declare the land or building to be a prison. Te Puna Wai has not been declared a prison by notice in the Gazette.[37] Te Puna Wai is a residence as defined in s 364 of the Act. Residences include youth justice residences, such as Te Puna Wai, which are established and maintainedfor purposes that are, or include, remand and custody.8 As Te Puna Wai comes under the definition of residence in the Act, the starting point is that the Chief Executive has the authority to place C in Te Puna Wai.[38] However, s 365 requires that, when making the decision to place a child or young person under his care in one of these residence, the Chief Executive has to have regard to the objects and principles of the Act.9 The overarching principle is that the welfare and interests of the child or young person come first.10 Therefore, in order for the Chief Executive to be able to place C in Te Puna Wai, s 365 requires the Chief Executive to consider this decision to be in C's best interests.[39] The applicant points to the Chief Executive's duty under the Act to endeavourto establish a sufficient range of residences to cater effectively for the variety of special needs of such children and young persons. The applicant submits that this indicates that there will be some residences established for purposes that would not meet a particular young person's needs. Counsel suggests that Te Puna Wai, being ayouth justice facility primarily designed to house young people who have been remanded or sentenced, is not suitable for C's needs as he was released on bail.Therefore, the decision to place him there is not in C's best interests and theplacement is unlawful.[40] However, those submissions require me to undertake an analysis of the decision on its merits, which is recognised as generally not being practicable in the summary jurisdiction of an application for a writ of habeas corpus. In the present case, I have considerable evidence as to the programme devised for C's time atTe Puna Wai and, at least on its face, it is guided by care and protection principles as opposed to detention or punishment. For example, he is not under the same regime as the other residents who are forbidden to leave and have set programmes. Instead, he is able to engage in educational programmes he enjoys, and is able to leave, when accompanied by his social worker, to visit his father and do other activities. I alsotake account of his social worker's evidence that he has been relatively settled atTe Puna Wai and she does not believe it would be in C's best interests to move him8 Section 365(4).9 Section 365(1) and (2).10 Section 6.from this placement for a short period of time until his longer term placement at Te Whare is established. No evidence was before the Court as to what alternative arrangement could be made for C, given his complex needs, if the Court was to direct his immediate release from Te Puna Wai. Indeed, there was a complete lack of evidence as to an alternative option.[41] The applicant's alternative argument was that C was, in effect, being placed in secure care as defined in the Act, without there being compliance with s 368 of the Act. That non-compliance made the detention unlawful.[42] The Act defines secure care as:In relation to a child or young person in a residence established under s 364, means containment in that residence within a locked room or enclosure with visible physical barriers.[43] The Act then provides a regime in ss 367 to 383A of the Act for the placement and retention of a child or young person in secure care. These require specified grounds to have been met before placement in secure care in a residence can occur,11 time limits on detention in secure care,12 a process for seeking approval for continued detention in secure care,13 and a procedure for challenging the continuation of detention in secure care.[44] Mr Tyrrell submitted that C was effectively being detained in secure carebecause he was in an environment that was enclosed with "visible physical barriers".Without compliance with the statutory regime for detention in secure care, it was unlawful.[45] However, although the term "secure care" is defined relatively widely in s 2, the statutory regime and caselaw make it clear that merely being placed within a youth justice residence does not equate to being placed under secure care. Secure care involves a further step of being confined to a room or other space within the residence, a form of solitary confinement.14 Secure care is used when a young11 Section 368.12 Section 370.13 Section 371.14 Police v R N [2015] NZYC 564 at [6].person needs more constraining care in order to protect them or others from harm, or to prevent abscondment. It occurs within a residence and is a further detention than merely being placed in a residence. Youth justice residences will have a secure care unit within them in which a resident will be placed if necessary.15[46] The description of C's care arrangements within Te Puna Wai are notconsistent with someone placed under secure care. He has the ability to move around the premises and leave his room to engage in activities. He is also allowed to leave the residence completely, with supervision. In my view, on a proper reading of the Act, secure care is a highly prescribed form of confinement which occurs within a residence including a youth justice residence and cannot be read as meaning simply being accommodated within a property that has visible physical barriers, as Mr Tyrrell suggests.[47] As C was not placed in secure care, there was no breach of the processes required by the Act and no unlawful detention.Should I refuse the application as it is not the appropriate procedure to consider the allegations?[48] I have found that the Act provides for the Chief Executive, exercising her powers under the s 101 custody order, to place C at Te Puna Wai under a care and protection regime, so there is no unlawful detention. However, if I am wrong in that, this is a case where I consider the application should be refused under s 14(1A)(b) Habeas Corpus Act 2001 on the basis that the application is not the appropriate procedure to consider the allegations made by the applicant.[49] As was outlined in the affidavit of C's social worker, C has complex care and protection needs. The decision made on 6 September 2017 was made in good faith and in light of the options available given C's personal circumstances. AsMr Ben Hannifin, the General Manager of Youth Justice residences, Oranga Tamariki, deposes, when it became clear that C could not return to Te Poutama Arahi, several senior staff managers at Oranga Tamariki discussed C's15 As noted in Tuilaepa v Chief Executive of the Ministry of Social Development [2016] NZERA Auckland 176 at [38]-[39].placement options. The immediate contingency placement options, such as placing C in a motel with a tracker, were not deemed suitable. Other potentially viable care and protection facilities had no available beds. Given C's care status and potentialrisk in the community, Te Puna Wai was agreed as the most appropriate placement at the time.[50] Furthermore, a specific plan was devised for C to meet his needs. These included regular visits from the social worker, arrangements to "get C offsite toengage in community opportunities" and an immediate referral of C to Te Whare with a view to achieving a placement there as soon as possible.[51] There was no evidence before me to suggest that there was an alternative suitable option for C's care until the bed at Te Whare became available. Thesefactors set the case aside from a normal application for a writ of habeas corpus, where the focus is simply on promptly ensuring the release of the unlawfully detained person and where there is no need to consider the consequences of such release.[52] In my view, if, in fact, the decision to place C at Te Puna Wai was flawed because, for example, it was not in his best interests, then that is a matter to be raised with the Chief Executive in some other forum, including in a Family Court review of the custody order. It is simply not amenable to determination in the summary jurisdiction of a writ of habeas corpus, with the limited evidence that I have before me, and where there are genuine concerns for C's welfare if he was forced to makeanother short term transition to less than ideal accommodation.Observations[53] Despite finding that the young person in this case was not unlawfully detained, I consider the applicant has acted responsibly in bringing this case to theCourt's attention. I found it extremely surprising that a young person who had beengranted bail by the Youth Court could be placed in a residence that was primarily designed for young people who had been remanded in custody or sentenced by the Youth Court.[54] While those who have care of C appear to have done their best to ensure an individualised programme for him in this environment, I have no doubt that his experience is essentially the same as that of young people who are detained there in custody. I consider it to be at the very least, undesirable, but potentially detrimental, to place a young person who is in need of care and protection in an environment that is designed for the provision of custody for remanded or sentenced youth offenders. Furthermore, it breaches, at least, the spirit of the United Nations Convention on the Rights of the Child.[55] There should be a clear distinction between residences that are established for care and protection purposes in which a young person like C can be placed, and a facility which is set up for young persons who are remanded or sentenced in custody. In the absence of the legislation making such a distinction, it would be my expectation that Oranga Tamariki would not place a young person who is subject to a care and protection regime in a youth justice residence. It would be unfortunate if the circumstances in which C has found himself in this case were to be replicated.Costs[56] Given the urgency with which the hearing was conducted, the issue of costs was not addressed. Costs are reserved, but in light of my comments above, this would not be a case where I would envisage an award of costs to the successful party.[57] As agreed with the parties at the outset of the hearing, I have made an order prohibiting the name or any identifying particulars of the young person who is the subject of this application in light of his youth and vulnerability.Solicitors:Weston Ward & Lascelles, ChristchurchRaymond Donnelly & Co., Christchurch