M V THE CHIEF EXECUTIVE OF CHILD YOUTH AND FAMILY SERVICES CA CA721/2008

M V THE CHIEF EXECUTIVE OF CHILD YOUTH AND FAMILY SERVICES CA CA721/2008 4 December 2008ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPELLANT, THE CHILD AND THE CHILD'S FATHER IN THE COURT OF APPEAL OF NEW ZEALAND CA721/2008 [2008] NZCA 532BETWEEN M Appellant AND THE CHIEF EXECUTIVE OF CHILD YOUTH AND FAMILY SERVICES Respondent Hearing: 25 November 2008 Court: Ellen France, Potter and MacKenzie JJ Counsel: S Abdale for Appellant L M Fong for Respondent Judgment: 4 December 2008 at 3.30 pmJUDGMENT OF THE COURT A The appeal against the decision of the High Court is dismissed and consequently the application for the issue of the writ of habeas corpus is declined. B Order prohibiting publication of names or identifying particulars of the appellant, the child and the child's father. C No order for costs.REASONS OF THE COURT(Given by Ellen France J)Introduction[1] This is an appeal from a decision of John Hansen J delivered on 23 October 2008 declining an application by the appellant for habeas corpus in relation to her child: HC ROT CIV-2008-404-007057. The child is 13 years of age and is the subject of a custody order initially made on 25 July 2002 in favour of the Chief Executive of Child, Youth and Family Services. [2] The appeal is brought on the basis that John Hansen J was wrong to conclude that the respondent had discharged the onus in s 14 of the Habeas Corpus Act 2001 to show that the custody order is valid.Background[3] The background to the matter is set out at [2] to [4] and [7] to [9] of John Hansen J's judgment and we concentrate on the key events in the chronology in terms of the present application. [4] After his parents separated in late 1999, the child initially lived with the appellant. Subsequently, after a defended hearing, orders were made in the Family Court in favour of the respondent with an access order in favour of the child's father. Following consideration of the plan required by s 128 of the Children, Young Persons, and Their Families Act 1989 ("the Act"), and an initial report by a social worker under s 186 of the Act, the Family Court made an order under s 101 of the Act placing the child in the care of the Chief Executive. [5] From September 2003, the child was placed by the Chief Executive with his father and his father's partner. Subsequently, there have been reviews of the plan for the child in terms of the Act and the s 101 custody order has been continued.Judge Geoghegan made a further s 101 order on 8 September 2005, and that order was continued by the Judge on 14 September 2006 and again on 16 October 2007. [6] On 16 October 2007, Judge Geoghegan also gave directions as to the review of the plan. Under s 134 of the Act, he ordered a review in six months, ie, by April 2008 to enable the existence of the custody order to be reassessed in light of any care and protection concerns. Because the appellant relies on what the Judge said, we note that at [12] Judge Geoghegan observed that there would "appear to be no care and protection concerns" for the child and "certainly" none while the child is in the care of the father. Judge Geoghegan said that the "continuing concern" for the child "lies around the lack of any relationship with his mother and his mother's continuing difficulties in terms of her relationships" with others involved in the child's life: at [12]. The Judge said at [14] that it was time to consider the withdrawal of the Chief Executive. He said he would approve the plan but direct review within six months. The report to come was to address why any custody order should continue in favour of the Chief Executive. The custody order was to continue in the meantime. [7] The review was prepared on 17 April 2008 and the matter came back before Judge Aubin on 1 May 2008. The Judge had before him the review documents and an application by the appellant to vary or discharge the order in favour of the Chief Executive. Judge Aubin said there had been significant changes since the matter was before Judge Geoghegan. For these purposes, we note that the key change is that because of pending criminal proceedings the father left the family home. The child continues to live at that home with the father's former partner and her children. [8] The Judge in explaining why he would not address the review in isolation from the appellant's application said at [7]:I have considered whether to deal with the review on the basis, quite simply, that it is going to be difficult for the Court not to take the view that a s 101 custody order is still required and that there is an absence of cogent evidence suggesting that it should be other than in favour of the Chief Executive, even if there are concerns about a specific placement.[9] The matter was adjourned for a fixture. The custody order in favour of the Chief Executive was continued in the interim. [10] An updated s 128 plan was filed on 16 July 2008. [11] When the matter came before Judge MacKenzie on 13 August 2008, the Judge said she was not prepared to set the matter down for hearing until evidential matters had been sorted out. [12] There was a further conference before the Judge by which time the Chief Executive had made an application to strike out the appellant's application to vary or discharge the s 101 order. The strike-out application was supported by counsel for the child. The strike-out application has since been dismissed by Judge MacKenzie in a judgment delivered on 24 November 2008.Judgment of the High Court[13] After considering the factual material, John Hansen J concluded the Chief Executive had discharged the onus on him to show that the child was lawfully detained. The Judge observed that the s 101 order remained valid on its face and although at one point a Family Court Judge had indicated the order may no longer be necessary that did not make the order invalid. In any event, the Judge noted there had been subsequent developments as identified by Judge Aubin and as set out in the further directions given by Judge MacKenzie.The appellant's case[14] The appellant makes three principal arguments. [15] First, it is said that the custody order is unlawful because at the time Judge Aubin in the Family Court continued the order he did not set a date for review of the plan as required by of s 134 of the Act.[16] Second, the appellant says that John Hansen J in relying on this Court's decision in F v Chief Executive of the Department of Child Youth and Family Services CA130/05 20 July 2005, failed to make the enquiries required by s 14(2) of the Habeas Corpus Act into the custody order. This submission relies on the later decision of this Court in DE v Chief Executive of the Ministry of Social Development[2008] NZAR 226 (leave to appeal refused [2007] NZSC 94) which it appears was not cited to John Hansen J. [17] The final submission is related to the nature of the enquiry the appellant says John Hansen J should have undertaken. The argument is that delays in the Family Court in resolving matters are such as to make it appropriate to invoke the Habeas Corpus jurisdiction. [18] We deal with each of these issues in turn.The application of s 134[19] Section 134 of the Act states that where a plan is prepared under s 128 in relation to any child or young person the Court "shall" on making, relevantly, an order under s 101 placing the child in the custody of any person, fix a date by which review of that plan is to be carried out. The date in this child's case would be not later than 12 months from the making of the s 101 order. We note that s 134(4) provides that on fixing the date, the Court may also direct who is to review the plan under s 135. [20] It is not at all clear to us that non-compliance with s 134 would necessarily make the custody order in this case unlawful. An order under s 101 continues in effect until it expires or until it is discharged under s 127. The circumstances in which an order expires are set out in s 108 and none of those circumstances are applicable here. But we do not need to determine what the effect of non-compliance with s 134 would be on the custody order because we do not consider there has been any breach of s 134.[21] Rather, the position is that Judge Geoghegan ordered the plan to be reviewed by April 2008. A review was accordingly prepared on 17 April 2008. What Judge Aubin did when the matter came before him was to adjourn the whole matter. It cannot be intended that in this case, Judge Aubin then had to direct a date for review because the review in fact was before him. That view is reinforced by s 137(5). That subsection provides that where a report is furnished under s 135 in respect of the review of any plan, any s 101 order continues in force until the Court has completed its consideration of the report and has determined what (if any) decision it should make with respect to that order. Unless the Court otherwise directs, subject to two sections which are not relevant here, the s 101 order simply continues. Judge Aubin's approach was consistent with the Act, and indeed, the Judge did not need to continue the s 101 order as that would have occurred automatically by means of s 137(5). [22] Because we have found favour of the respondent on other grounds, we do not need to consider the respondent's argument that the general power to adjourn in s 201 of the Act was relevant.Nature of enquiry[23] We accept the submission for the respondent that the High Court Judge looked at the relevant surrounding circumstances and made appropriate enquiries in terms of s 14(2) of the Habeas Corpus Act. [24] The appellant's argument relies on the observation in DE that this Court inF v Chief Executive was not intending to lay down a general proposition. The proposition referred to from F v Chief Executive was the comment that the custody order in that case was valid unless and until it was held to be invalid. This Court inDE at [37] said the statement was made:[I]n the context of that case where a hearing to consider the issues relating to the child was scheduled in the Family Court the following week, obviously a more suitable forum for the resolution of custody issues. The comment was also made in the context of the case where there were clear, immediate and obvious concerns about the welfare of the child .[25] Glazebrook J in DE also said that the position was more accurately put by this Court in its judgment on a later habeas corpus application made by the same father. Glazebrook J continued:[38] The Court said that the custody order made in 2006 was a conclusive answer to the application but it explained that this was because the matters raised were more properly dealt with by way of an appeal from the Family Court decision or possibly by way of judicial review (F v Chief Executive for the Ministry of Social Development [2007] NZFLR 613 at para [14]).[26] Ms Abdale's submission in this regard was two-fold. First, that the approach adopted in DE gave rise to some more, broader, interests of justice considerations. Second, Ms Abdale submitted that the enquiry under s 14(2) is not a narrow one. [27] As to the first point, we do not understand the Court in DE to be suggesting that the nature of the ultimate enquiry has changed from one requiring determination of the lawfulness of the detention. Rather, the focus of the observations in DE is on the nature of the enquiry required by s 14(2). In that context, the distinction being made is between those "underlying questions of fact and law" which are "properly susceptible to fair and sensible summary determination" and those which are better dealt with by way of judicial review or by the relevant specialist court: at [34]. Hence, the Court made reference to Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 at [47] – [51] (CA). As Glazebrook J said at [34] in DE:Any enquiry into underlying facts and law must be one that, although conducted in circumstances of urgency, would allow an appropriately considered judicial examination that would warrant making an unappealable finding against the lawfulness of the detention (Manuel at [47]).[28] Turning then to the present case. The argument before the High Court Judge was that the custody order was invalid because the child was no longer in need of care and protection. As can be seen, the focus has altered somewhat on appeal. But, in terms of the approach required by s 14(2), the Judge in addressing the submission that there were no care and protection concerns did consider the various judicial directions which made it plain that things had moved on from the position as it was before Judge Geoghegan. In any event, it overstates matters to suggest, as the appellant does, that Judge Geoghegan made findings of fact as to the child's need forcare and protection. Any factual findings on this issue must necessarily be subject to later changes in circumstances. In that respect, it is not accurate to say that, as matters were at the time they were considered by Judge Aubin, no issues as to care and protection were raised. In fact, the social worker in the review dated 17 April 2008 stated that there were no care and protection concerns for the child either in the care of his father and/or the former partner "while the Service continues to remain involved". In other words, the social worker was suggesting there may be concerns if the Chief Executive was no longer involved.Delays in the Family Court[29] The position in the Family Court is summarised by the latest directions from Judge MacKenzie in the decision refusing to strike out the appellant's application. The Judge said at [29]:What is required is that these proceedings are brought on for hearing as soon as possible. To that end, whilst the evidential position is not ideal, the [appellant] has had her opportunity to file affidavits. Accordingly, I make the following directions: a) A one day priority fixture is to be allocated. b) There is to be no oral evidence in chief without the Court's leave at the hearing. c) That on a date to be advised by the registrar, there is to be a further directions conference to consider any further directions which may be necessary for the purpose of the hearing, including to consider the issue of the witnesses said to be summonsed, particularly given the r 48 FCR.[30] The appellant complains of the length of time that has now elapsed since Judge Geoghegan's directions relating to the review of the plan. Any delays in our view are readily explicable on the material before us. Further, the orders made have been the subject of judicial consideration after hearing from the parties. Finally, Judge MacKenzie's decision of 24 November 2008 suggests that the failure of the appellant to file a further affidavit as was her apparent intention contributed to some delay. In these circumstances, we see no merit in the appellant's submissions that the delays affect the validity of the custody order. It is plain that the Family Court has the matter in hand.Costs[31] The respondent does not seek costs and so we make no order for costs.Result[32] For the reasons set out above the appeal against the decision of the High Court is dismissed and consequently the application for the issue of the writ of habeas corpus is declined.Solicitors: Crown Law Office, Wellington