L AND T V CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN, ORANGA TAMARIKI [2017] NZCA 517

L AND T V CHIEF EXECUTIVE OF THE MINISTRY FOR VULNERABLE CHILDREN, ORANGATAMARIKI [2017] NZCA 517 [15 November 2017]NOTE: ORDER MADE BY THE HIGH COURT REMAINS IN FORCE.PUBLICATION OF THE NAMES OR IDENTIFYING PARTICULARS OFTHE APPELLANTS AND THE CHILD IS PROHIBITED. FILE IS NOT TOBE SEARCHED EXCEPT BY LEAVE OF A JUDGE.IN THE COURT OF APPEAL OF NEW ZEALANDCA559/2017[2017] NZCA 517BETWEEN L AND TAppellantAND CHIEF EXECUTIVE OF THEMINISTRY FOR VULNERABLECHILDREN, ORANGA TAMARIKIRespondentHearing: 8 November 2017Court: Harrison, Cooper and Courtney JJCounsel: Appellants in personS J Jerebine for RespondentJudgment: 15 November 2017 at 4 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] L is a six-month-old baby boy who is presently in the custody of theChief Executive of the Ministry for Vulnerable Children, Oranga Tamariki, under anorder made under s 78(1) of the Oranga Tamariki Act 1989. The s 78 order was madepending the determination of an application for a declaration under s 67 that L is inneed of care and protection.1 L's parents, Mr L and Ms T applied unsuccessfully for awrit of habeas corpus on the ground that the s 78 order was unlawful.2 The presentappeal challenges that decision.[2] Before the hearing of the appeal (and unknown to Mr L and Ms T) theFamily Court made the s 67 declaration.3 The Chief Executive is in the process ofpreparing an application for a custody order under s 101, which will replace the s 78order. It is intended that L will remain in the custody of the Chief Executive under thes 78 order pending the making of a s 101 order.[3] For the reasons that follow, we dismiss the appeal but note that, even if theappeal had succeeded, a further s 78 order would have been inevitable, given thecircumstances outlined in the decision on the s 67 order. However, as we explained toMr L and Ms T, it is open to them to appeal both the s 67 declaration and any custodyorder made in substitution of the s 78 order.Background[4] Ms T has long-standing mental health problems. She has previously been thesubject of a compulsory treatment order under the Mental Health (CompulsoryAssessment and Treatment) Act 1992 but is currently undergoing voluntary treatment.Her three older children were removed from her on the grounds that they were in needof care and protection. Mr L, who settled in New Zealand in 1995 as a refugee, haspreviously received treatment for mental health issues but says that he currently hasno such problems. The couple lives in straitened circumstances in a caravan park withminimal support from Ms T's family.[5] L was born on 13 May 2017. In March 2017, in anticipation of his birth, asocial worker who had previously worked with Ms T and her other children made anon-notice application for a declaration under s 67, relying on s 14(1)(a), (b), (ba) and(f). She also made a without-notice application under s 78(1) for an order placing L1 Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki v [T] FC WaitakereFAM-2017-090-182, 13 April 2017 [Minute of Judge Pidwell].2 [L] v Chief Executive of the Ministry of Vulnerable Children, Oranga Tamariki [2017] NZHC2322 [Judgment under appeal].3 Ministry of Vulnerable Children v [T] [2017] NZFC 8295.in the custody of the Chief Executive pending determination of the s 67 application.Such an order can be made where the Family Court is satisfied that the child is in needof care and protection for the period of the order.4[6] Although the application identified the four grounds referred to above,it appears to have been advanced primarily on the basis that L was a"subsequent child" for the purposes of s 14(1)(ba) and that Ms T had not demonstratedshe was unlikely to allow the kind of harm that led to her other children being removedbeing inflicted on L. The social worker's affidavit sworn in support of the applicationscanvassed the known history of Mr L and Ms T. It specifically addressed the issuesarising under s 18A and 18B (directed towards L being a "subsequent child" for thepurposes of s 18A), as well as more general "current concerns".[7] The without-notice application was directed to be served, which it was. JudgePidwell heard the application at a telephone conference on 13 April 2017, which MsT attended. In a minute determining the application, the Judge said:5[5] This is an application filed by the Ministry because of the historicconcerns and in particular the fact that this child has been assessed as being asubsequent child under s 18 due to the historic proceedings which havedetermined that the other four children are in need of care and protection onan ongoing basis. The underlying issues are the mother's mental health andinability to appropriately care for the children together with her criminalhistory, transience and engagement with methamphetamine and othersubstances.[8] This is a situation where the onus is on the mother to establish thechild is safe in her care due to the classification of it being a subsequent child.The assessment has been done by the social worker and under s 18A and theonus then falls on the parent to demonstrate to the Court that she or he meetsthe requirements of s 18A(3), namely that the child can be cared forappropriately. I have no evidence before me in terms of that. I have along-standing history of over a decade to establish that there are clear care andprotection issues for Ms [T]'s other children which have not abated with thebirth of the fifth child.[9] It is appropriate and in the child's best interest and welfare in my view,for a s 78 order to issue immediately to ensure that the child upon birth hasthe best start to life it can, in terms of an appropriate and safe placementapproved by the Ministry. 4 Oranga Tamariki Act 1989, s 78(2)(b).5 Minute of Judge Pidwell, above n 1.[8] The s 78 order was to be reviewed on 4 May 2017.6 Ms T and Mr L were bothrepresented on that day. On review Judge Druce directed that the s 78 order continue,pending determination of the s 67 proceedings.7The habeas corpus proceedings and present appeal[9] Mr L and Ms T did not appeal the s 78 order. Instead, they applied for a writof habeas corpus. They argued that the order was unlawful because it was wronglybased on the allegation that L was a "subsequent child", that the order was made incontravention of the United Nations Convention on the Rights of the Child8 and thatthe Family Court had erred in fact and law.[10] By the time of the habeas corpus hearing the Chief Executive hadacknowledged that the "subsequent child" provisions of the Oranga Tamariki Act didnot apply. Instead, the Chief Executive relied solely on the evidence of Ms T's historyas discharging the onus on of showing a need for care and protection under s 14(1)(a),(b) or (f).[11] Toogood J agreed that the prerequisite for applying the reverse onus unders 14(1)(ba) — that, in terms of s 18B(2), a court had determined or a family groupconference had agreed that there was no realistic possibility that the child would bereturned to the parent's care — had not been established at the time Judge Pidwellmade the s 78 order.9 However, the Judge was satisfied that there was a proper basiswithin Judge Pidwell's reasoning, read as a whole, for her to have made the order.10As a result, it could not be said that the s 78 order was unlawful; the substantivechallenges that Mr L and Ms T wished to make to the decision were properly a matterfor appeal.6 At [10].7 Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki v [T] FC WaitakereFAM-2017-090-182, 4 May 2017 [Minute of Judge Druce].8 Convention on the Rights of the Child 1577 UNTS 3 (signed 20 November 1989, entered intoforce 2 September 1990).9 Judgment under appeal, above n 2, at [13].10 At [15].[12] In our view, there was no error in Toogood J's assessment. Judge Pidwellreferred to the underlying issues of Ms L's mental health, inability to appropriatelycare for her other children, criminal history, transience, and use of methamphetamine,which were all supported by the evidence of the social worker. These factors, coupledwith the Judge's conclusion that the longstanding care and protection issues thatexisted for Ms T's other children had not abated, made it clear that there were adequategrounds on which an order could be made under s 78(1)(a), (b) and (f). As a result,the appeal against Toogood J's decision fails.[13] It is evident from the submissions that Mr L and Ms T filed for the purposes ofthe appeal that they wish to challenge the evidential basis for the s 78 order,particularly the conclusions the Judge drew regarding their respective mental healthissues and ability to provide a stable environment for their child. The writ of habeascorpus cannot be pleaded for the collateral purpose of making such challenges.11These are matters best dealt with in the context of an appeal against the s 67declaration and, once it is made, the custody order under s 101 that will replace thes 78 order. Preparation of an application for a s 101 custody order is underway but itis possible that the time for appealing against the s 67 declaration will expire beforethat application is determined. As a result, we indicated to Mr L and Ms T that theymay wish to lodge their appeal against the s 67 declaration immediately rather thanawait the Chief Executive's application for a s 101 custody order.Result[14] The appeal is dismissed.Solicitors:Crown Law Office, Auckland for Respondent11 AN v Counties Manukau District Health Board [2016] NZCA 226, [2016] NZFLR 468 at [10].