MS HENDERSON v ORANGA TAMARIKI [2023] NZHC 3018

MS HENDERSON v ORANGA TAMARIKI [2023] NZHC 3018 [30 October 2023]NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11CAND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2023-454-41[2023] NZHC 3018UNDER THE Oranga Tamariki Act 1989IN THE MATTER OF an appeal against a decision of the FamilyCourtBETWEEN MS HENDERSONAppellantAND ORANGA TAMARIKI—MINISTRY OFCHILDRENRespondentHearing: 6 September 2023Appearances: Appellant in personMcKenzie friendV A Howell and I M G Clarke for RespondentH J McKenna as Counsel for ChildJudgment: 30 October 2023JUDGMENT OF GRICE JIntroduction[1] The appellant, Ms Henderson,1 appeals a judgment of the Family Courtreleased on 17 March 2023 (the decision).2 The decision granted custody ofMs Henderson's son, Ryan, to Oranga Tamariki and ordered that Oranga Tamariki beappointed an additional guardian. Previously Ms Henderson was the sole guardian.[2] The application before the Family Court Judge was for a final custody orderunder s 101 of the Oranga Tamariki Act 1989 to replace existing interim custody orders(under s 102 of the Oranga Tamariki Act) in favour of the respondent. The matter hasa complicated procedural history which I outline below.[3] The hearing before the Family Court was part-heard in September 2022 andthe hearing was resumed in February 2023. Ms Henderson was represented bycounsel, Ms Faimalie. The September 2022 hearing was adjourned by consent whenit appeared that progress might be made to an agreed outcome for the care of Ryan.[4] Ms Henderson represented herself throughout the hearing on 28 February 2023in the Family Court and in this appeal.Background[5] Ryan, the young person the subject of the custody and guardianship ordersmade in favour of Oranga Tamariki, was born on 7 September 2010. Ryan wasconceived by sperm donation through a fertility clinic. Ryan's father has not beenlegally identified. There is some suggestion that the sperm donor father was Mr L,with whom Ryan has had contact, but Ms Henderson says that Ryan's father has notbeen identified. Ryan turned 13 years old shortly after this hearing on6 September 2023.1 The names of the appellant, the child and related parties have been anonymised in this judgment,including in quoted material.2 Chief Executive of Oranga Tamariki—Ministry for Children v [Henderson] [2023] NZFC 2167[March 2023 decision].[6] Ms Henderson seeks to set aside the custody and additional guardianshiporders made in favour of Oranga Tamariki. Ryan is presently in the day-to-day careof Oranga Tamariki and has been placed with caregivers. The Court approved andregularly reviews a schedule of access and other activities for Ryan in a plan preparedunder s 128 of the Oranga Tamariki Act. The matter returns to the Family Court everysix months for a review by the Judge. The details of the arrangements in the plan arevaried from time to time to meet Ryan's changing requirements and other exigencies.One of the issues that Ms Henderson raises is that the variation of the plan occurs tosuit Oranga Tamariki and its caregivers' convenience. Ms Henderson says the planshould not be altered except by the Family Court.[7] Ryan has been residing with caregivers other than his mother since he wentinto the care of Oranga Tamariki in February 2021. Initially he was placed withMr and Mrs C. Ryan was with Ms Henderson's second cousin, Ms F, in approximatelyAugust 2022.3[8] Ms Henderson confirmed in her oral submissions that Ryan has had somedifficulties and she has found it difficult to control his behaviour. Those difficultieshave been ongoing.[9] Ms Henderson says that having undertaken further training and gained skills,she is now better placed to manage those difficulties than the Oranga Tamarikicaregivers.Approach to appeal[10] This is an appeal under s 341 of the Oranga Tamariki Act. The appeal is ageneral appeal, from an evaluative assessment of what is in the best interests of thechild, taking into account the applicable statutory principles. It is not an appeal againstthe exercise of discretion.4 The appeal proceeds by way of rehearing.53 Ryan was in the care of Ms F and spent time with Ms Henderson at the hearing of this appeal.However, shortly after the appeal was heard, memoranda were filed on behalf of Ms Hendersonand Oranga Tamariki which indicate Ryan is no longer in the day-to-day care of Ms F.4 M v Chief Executive of Oranga Tamariki [2019] NZHC 717 at [45]–[48].5 Section 143 of the Care of Children Act 2004, the High Court Rules 2016 and ss 125–130 of theDistrict Court Act 2016 apply to an appeal, with all necessary modifications, as if it were an appealunder s 124 of the Care of Children Act. Pursuant to r 20.4(2)(b) of the High Court Rules, the[11] The Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar confirmedthat appellate courts should form their own view of the matters in issue.6 Nevertheless,the appellant bears the onus of satisfying the appeal court that it should differ from thedecision of the court appealed from.7[12] In discharging that onus, the appellant must identify the respects in which thejudgment under appeal is said to be in error.8 It is only if the appellate court considersthat the decision appealed is wrong that it is justified in interfering.Legislative framework[13] The proceedings are under the Oranga Tamariki Act. The Family Court hasjurisdiction to hear those proceedings. Section 4A of the Oranga Tamariki Actprovides that the well-being and best interests of the child or young person must beconsidered in all matters relating to the administration or application of the Act. Underthat section, the "well-being and best interests of the child or young person are the firstand paramount consideration, having regard to the principles set out insections 5 and 13."9[14] Ryan first entered Oranga Tamariki's care by virtue of an agreement unders 140 of the Oranga Tamariki Act signed by Ms Henderson on 26 February 2021 whenRyan was 10 years old. Section 140 provides:140 Agreements for extended care of children and young persons bychief executive, iwi social service, etc(1) Subject to this section and to sections 143 to 145 and section 147,where every person who is a parent or guardian or person having thecare of a child or young person agrees to do so, those persons may,—(a) with the agreement of the chief executive, place the child oryoung person in the care of the chief executive for a period ofmore than 28 days; ortime for filing an appeal is within 20 working days of the decision. The High Court may extendthe time prescribed for bringing an appeal under r 20.4(3).6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141 at [3].7 At [4].8 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].9 Oranga Tamariki Act 1989, s 4A.(b) with the agreement of an iwi social service or a cultural socialservice, place the child or young person in the care of thatsocial service for a period of more than 28 days; or(c) with the agreement of the director of a child and familysupport service, place the child or young person in the care ofthe director for a period of more than 28 days; or(d) with the agreement of any person referred to in paragraphs(a) to (c) or any other person approved by the chief executivefor the purpose of this paragraph, place a young person aged15 years or more in the care of that person for the purpose ofassisting the young person to achieve independence.(2) No agreement may be made under subsection (1)(a) to (c) providingfor the placement of any child or young person in the care of anyperson for any period that exceeds,—(a) in the case of a child who is under 7 years of age, 6 months:(b) in the case of any other child or any young person, 12 months.(3) An agreement made under subsection (1)(d) may be entered into forany period of up to 12 months and may, if approved by a family groupconference, be extended by any further periods of up to 12 months.[15] Under s 101 of the Oranga Tamariki Act, if a court, on application of theChief Executive of Oranga Tamariki under s 68,10 "is satisfied that a child or youngperson is in need of care or protection, it may make an order placing that child inthe custody of" the Chief Executive or any other person. The order may be on termsand conditions as the court thinks fit.11 The court may, instead of making a final orderunder s 101, make an interim order under that section by virtue of s 102. The interimorder may not continue in force for more than six months after the date on which it ismade. The court may only make one further interim custody order under s 101.12[16] The court may also make a guardianship order in favour of the Chief Executiveor appoint the Chief Executive an additional guardian.13[17] The court may make the relevant orders where it is satisfied that "a child oryoung person is in need of care or protection".14 A child is in need of care or protection10 I refer to the relevant orders being in favour of Oranga Tamariki in the judgment.11 Section 101(2).12 Section 102(3).13 Section 110.14 Sections 101(1) and 110(1).when they are suffering, or are likely to suffer, serious harm.15 Serious harm will arisewhen the child is being, or is likely to be, abused (whether physically, emotionally, orsexually), deprived, ill-treated, or neglected.16 Other circumstances that mayconstitute serious harm, or establish the likelihood of serious harm, are:17(a) the child's development or physical or mental or emotional well-beingis being, or is likely to be, impaired or neglected, and that impairmentor neglect is, or is likely to be, avoidable; or(b) the child has been exposed to family violence (within the meaning ofs 9 of the Family Violence Act 2018).[18] Serious harm may occur as a result of an incident, two or more incidents thathave a cumulative effect which is serious enough to cause serious harm, or theco-existence of different circumstances.18[19] Section 78 provides for the court to make an interim order relating to thecustody of the young person pending determination of the proceedings.19 This remainsin force for the period specified in the order, not exceeding 28 days, unless earlierdischarged by the court or until a later date specified by the court in the order that thecourt considers allows sufficient time for a family group conference to be held and, ifnecessary, an application for another care and protection order is to be made.20[20] Under s 128, where the court proposes to make a s 101 order placing any childor young person in the custody of any person or appointing a sole guardian unders 110, a plan must be prepared in accordance with ss 129 and 130. Section 130 setsout the required matters that the plan must deal with as follows:130 Content of plans(1) Every plan prepared pursuant to section 128 in respect of a child oryoung person shall—15 Section 14(1)(a); and the March 2023 decision, above n 2, at [92].16 Section 14AA(1)(a); and the March 2023 decision, above n 2, at [93].17 Section 14AA(2); and the March 2023 decision, above n 2, at [94].18 Section 14AA(3).19 Section 78(1).20 Section 78(4).(a) specify the objectives sought to be achieved for that child oryoung person, and the period within which those objectivesshould be achieved:(b) contain details of the services and assistance to be providedfor that child or young person and for any parent or guardianor other person having the care of the child or young person:(c) specify the persons or organisations who will provide suchservices and assistance:(d) state the responsibilities and personal objectives of the childor young person:(e) state the responsibilities and personal objectives of anyparent, guardian, or other person who, under the plan, willhave the care of the child or young person:(ea) set out the following:(i) the responsibilities and personal objectives of anyparent, guardian, or other person who, under the plan,will not have the care of the child or young person,but who had the care of the child or young personpreviously and wishes to have the child or youngperson returned to that person's care:(ii) the steps that each such parent, guardian, or otherperson must take, or the behavioural changes eachmust make, before the child or young person can bereturned to that person's care:(iii) the time frames within which those steps or changesmust be taken or made:(iv) the time within which a decision will be made aboutwhether to return the child or young person to thecare of any parent, guardian, or other person:(f) contain such other matters relating to the education,employment, recreation, and well-being of the child or youngperson as are relevant.(2) A plan need not contain the matters set out in subsection (1)(ea) if theplan is prepared on the basis that there is no realistic possibility thatthe child or young person will be returned to the care of a parent,guardian, or other person referred to in subsection (1)(ea)(i), or if theplan relates only to a services order under section 86 or a support orderunder section 91.(3) If a plan does not contain the matters set out in subsection (1)(ea), itmust, instead, set out the child's or young person's long-term needsand proposals for how those needs will be met (unless the plan relatesonly to a services order or a support order).[21] The Family Court may, at any stage of the proceedings, if it appears to theCourt to be expedient, direct that a medical, psychiatric, or psychological report shouldbe available to the Court in respect of any young person to whom the proceedingsrelate.21 The Court must also obtain a report from a social worker before making acustody or guardianship under ss 101 or 110. That report has to include variousmatters set out in s 186, as follows:186 Report by social worker(2A) Every report provided to the court pursuant to subsection (1)(a) must(without limiting subsection (3)) make a recommendation, withreasons, on whether there is a realistic possibility that the child oryoung person to whom the report relates can be returned to the careof the parent, guardian, or other person who had the care of the childor young person before the care or protection order was made, and—(a) if there is such a realistic possibility, must—(i) set out the steps that the parent, guardian, or the otherperson must take, or the behavioural changes that theparent, guardian, or the other person must make,before the child or young person can be returned tothe care of the parent, guardian, or the other person;and(ii) recommend a time when, or a period within which,the option of returning the child or young person tothe care of the parent, guardian, or other person willbe pursued, having particular regard to the age of thechild or young person; or(b) if there is no such realistic possibility, set out—(i) the child's or young person's likely long-term needs,and proposals for how those needs will be met; and.(3) Every report obtained pursuant to this section in respect of a child oryoung person shall include—(a) such information as is required to be included in such reportsby guidelines issued from time to time in writing by the chiefexecutive after consultation with thePrincipal Family Court Judge:21 Section 178(1).(b) such other information as may assist the court in itsconsideration of the matter:(c) such other information as the court may direct.(4) Every report required pursuant to this section shall be prepared, whereappropriate, in consultation with a Maatua Whangai worker.(5) In this section, the term social worker includes a person employed inthe speciality of social work by the director of a child and familysupport service, or by an iwi social service or a cultural social service,who consents to make a report under this section.Grounds of appeal[22] Ms Henderson filed an amended notice of appeal dated 14 July 2023 whichwas out of time. However, there was no opposition to the filing of the amended noticeof appeal and it set out grounds similar to those in an earlier notice. While the noticeincludes material in the nature of submission and evidence, in the absence of anyopposition, I grant leave for the amended notice to be filed and deal with the appealon the basis of the grounds set out in that amended notice.[23] The grounds may be conveniently grouped under headings as follows:(a) Predetermination or bias of the Judge:(i) Predetermination.(ii) Did the Judge form a view of Ms Henderson?(iii) Did the Judge remain impartial in the decisions made?(b) Adequacy of evidence/testing the evidence:(i) Has the evidence been appropriately tested?(ii) Is there any evidence to substantiate this?(c) Process issues:(i) Was jurisdiction available to the Court absent an application?(ii) Was the pro forma application an abuse of process due to theprejudice caused to Ms Henderson by the delay?(iii) Section 204 of the Oranga Tamariki Act in relation to rehearing.(d) Ineffective assistance of counsel/consent issues:(i) Ineffective assistance of counsel.(ii) Was Ms Henderson aware of what she was consenting to?(iii) Was the s 140 agreement signed under duress byMs Henderson?(iv) Whether it is clear at [46] of the judgment that respite care wassought by Ms Henderson.(e) Oranga Tamariki's position:(i) Did Oranga Tamariki regress from its position regarding Ms F?If so, were Ms F and Ms Henderson informed thatOranga Tamariki's position had changed regarding this?(ii) Was Ms Henderson given adequate support from theappropriate agencies (in particular Oranga Tamariki)?(iii) Was there a requirement for more intensive support for Ryanand Ms Henderson? Who is responsible for ensuring this levelof support is there for them?[24] Ms Henderson read her oral submissions from a prepared transcript. Her oralsubmissions took from the commencement of the hearing at 10 am until 3.30 pm.Ms Henderson's McKenzie friend read the last few paragraphs of Ms Henderson'stranscript at her request. Ms Henderson made her submissions in reply. The Court satbeyond the usual sitting hours, until 5.40 pm, to enable the matter to be finished. TheCourt breaks were adjusted to accommodate Ms Henderson at her request.22[25] Ms Henderson's oral submissions did not follow her amended notice of appealor her written transcript. Her submissions referred to a number of historical eventsand to present arrangements which are outside the ambit of this appeal. I allowedMs Henderson considerable latitude in her submissions.[26] In view of the wide-ranging submissions made by Ms Henderson in the appealand the procedural background in the Family Court, it is necessary to consider thebackground and the procedural history leading to the judgment under appeal.Procedural history[27] Ryan first came to the attention of Oranga Tamariki in 2014. A report ofconcern had been made about him relating to smacking (disclosed by Ms Henderson),hoarding, punitive parenting (including locking him out of the house and in thebedroom), inadequate food, lack of bathing and ill-fitting clothes. Support was put inplace for Ms Henderson to care for Ryan. Further reports of concern were made in2016 and 2017. In general terms, the concerns were about the way Ms Hendersonmanaged Ryan's behaviour, for instance withholding food from him if he had beennaughty at home.23[28] As a result of a third report of concern, a family group conference was held on24 February 2021. Following that, a plan was formulated. It provided for the safetyand support of Ms Henderson to care for Ryan, naming support organisations andcounselling services that would be involved.2422 The adjustments were made as recommended in a report handed up by Ms Henderson at thecommencement of the appeal hearing [Communications Assistance Report]. It was entitled"Communications Assistance Report prepared by Talking Trouble Aotearoa NZ Ltd" and dated 13December 2021.23 March 2023 decision, above n 2, at [29] and [47]; and affidavit of Ms Thara Prabhakar, 12 October2021, at [21].24 Family group conference: record of decisions, recommendations and plans, 24 February 2020; andaffidavit of Ms Prabhakar, above n 23, at [31].[29] Further reports of concern led to a further family group conference on26 February 2021.25 At that conference, an agreement for temporary care of Ryan wasreached between Oranga Tamariki and Ms Henderson. Ryan was to be inOranga Tamariki's custody for one year pursuant to a s 140 agreement.26[30] Ms Henderson was legally represented at the family group conference and saysshe was advised by her lawyer to sign the s 140 agreement. Ms Henderson now allegesshe signed the agreement under duress. A s 140 agreement is able to be revoked byeither party at any stage. Ms Henderson never revoked it.[31] Ryan was with caregivers and various agencies supported him andMs Henderson. Ms Henderson had supervised access once a week.[32] There were further incidents reported when Ryan was in Ms Henderson's care.Ms Henderson admitted she threatened to cut off Ryan's fingers as a threat to scarehim.27[33] Ms Henderson said that Ryan needed to be medicated if he were to be returnedto her care. She said she felt forced to sign the s 140 agreement.28[34] On 14 October 2021, Oranga Tamariki made an application for a care andprotection order (s 66), a custody order (s 101), an additional guardianship order(s 110) and an interim order placing Ryan in the custody of the Chief Executivepending determination of the proceedings (s 78).[35] Ms Henderson responded by applying to discharge the s 140 agreement andapplying for a s 91 support order.29 At a judicial conference held on17 November 2021, Ms Henderson agreed not to terminate the s 140 agreement andnot to withdraw Ryan from art therapy, which had been an issue of contention.3025 March 2023 decision, above n 2, at [30]–[31].26 At [30]–[31].27 Affidavit of Ms Prabhakar, above n 23, at [41] and [46]; and affidavit of Mr Jono Cotton, 17 June2022, at [20]–[21].28 Affidavit of Ms Henderson, 8 October 2021; and affidavit of Mr Cotton, above n 27, at [30].29 March 2023 decision, above n 2, at [33]–[40].30 Chief Executive of Oranga Tamariki—Ministry for Children v [Henderson] FC Palmerston NorthFAM-2021-054-405, 17 November 2021 (Minute of Judge Broughton) at [9]–[10].[36] On 1 February 2022, Mr Trainor filed a psychological report at the request ofthe Court. He recommended Ms Henderson continue therapy to resolve symptoms ofpost-traumatic stress disorder and to modify her destructive thought patterns. Herecommended Ms Henderson and Ryan be given support to mend their relationshipbefore consideration be given to their living together again.31[37] Ms Henderson acknowledges there were care and protection issues for Ryan.She said these arose from her inability to manage his behaviour. Ms Henderson at thetime said she had no issues in following the recommendations made by Mr Trainor.32[38] A s 128 plan was then prepared and filed for Ryan to reflect therecommendations in Mr Trainor's report. That plan included contact arrangementsbetween Ryan and Ms Henderson as agreed between Oranga Tamariki andMs Henderson.33[39] On 15 February 2022 the Family Court, before the hearing ofOranga Tamariki's application, recorded that agreement had been reached between theparties. A minute of that date records Ms Henderson as being represented byMs Faimalie. The Judge recorded that by consent a s 102 custody order was grantedin favour of the Chief Executive of Oranga Tamariki. Further, an interim guardianshiporder under s 110AA in favour of Oranga Tamariki was granted. The Judge approvedthe s 128 plan as adequate as drafted. A case management review was set down for18 May 2022, with a judicial conference to be allocated no later than 28 July 2022. Adirection was made for a psychologist's report which would take into account thehistory and the information in the psychological report of Mr Trainor (dated1 February 2022). The psychologist's brief was set out in a consent memorandumsigned both by Ms Henderson and by her lawyer. Mr Trainor's report was to bereleased to both the "schema therapists" working alongside Ms Henderson and thereport writer. A Judge was assigned to supervise the file.31 March 2023 decision, above n 2, at [82].32 Affidavit of Ms Henderson, 10 February 2022, at [8]–[15].33 Affidavit of Mr Cotton, above n 27, at [54]–[61] and [63].[40] Mr Cotton became Ryan's Oranga Tamariki social worker in April 2022. Hestarted holding informal fortnightly meetings between Ms Henderson, her counsel, alawyer for the child and Oranga Tamariki. On 3 June 2022, Ms Henderson applied todischarge the interim custody order in favour of Oranga Tamariki and to vary thecurrent custody order in favour of Ms F, who was Ryan's caregiver fromAugust/September 2022 until recently.34[41] Various counselling and support work continued with Ryan, as well as therapysessions funded by Oranga Tamariki for Ms Henderson to address psychological issuesidentified in schema issues.[42] In July 2022, Oranga Tamariki filed an application for a further finals 102 order for six months for Ryan based on his need for care and protection on thegrounds in s 14(1)(a) of the Oranga Tamariki Act, and also sought a guardianship orderunder s 110AA. About that time, Ryan's teacher aide funding reduced to 25 hours aweek as his behavioural concerns reduced.[43] On 8 August 2022, the interim custody order was renewed until 3 October 2022by consent and subject to access conditions.35[44] Ms F as caregiver was approved in August 2022 and Ryan went to live withher in September 2022.[45] In September 2022, Oranga Tamariki applied for the s 101 custody order andto be appointed an additional guardian.36[46] A two-day hearing in the Family Court commenced on 29 September 2022 tohear the applications by Oranga Tamariki for s 101 and s 110 orders. Mr Fry, apsychologist, prepared a report for the Court and gave evidence at the hearing on29 September 2022.37 On the completion of the evidence of Mr Trainor and Mr Fry,34 March 2023 decision, above n 2, at [42]–[44].35 At [3]; and Chief Executive of Oranga Tamariki—Ministry for Children v [Henderson] FCPalmerston North FAM-2021-054-405, 8 August 2022 (Minute of Judge Broughton).36 March 2023 decision, above n 2, at [4].37 At [86]; and Chief Executive of Oranga Tamariki—Ministry for Children v [Henderson] FCPalmerston North FAM-2021-054-405, 15 February 2022 (Minute of Judge Smith).and following Mr van den Brink being sworn in, the hearing was adjourned as theparties accepted Ryan was a child in need of care and protection as defined underss 14(1)(h) and 14AA(1)(h). The parties agreed that they would vary the s 102 orderand prepare an agreed s 128 plan.38 The interim custody order was varied by consentto extend it to 9 February 2023, which was the full six-month period available for suchan order.[47] In October 2022, Ms Henderson sought that the matter urgently be placed backbefore the Family Court, as she alleged Oranga Tamariki had breached the s 128 plan.Ms Henderson dismissed her lawyer on 18 November 2022. From then on, sherepresented herself in the proceedings.[48] Psychologists and counsellors continued to be involved. Ms Henderson begantherapy with a new therapist to work on "schema" due to the unavailability of theprevious therapist. Support continued for Ryan, although his teacher aide fundingreduced to 20 hours per week.39[49] On 31 January 2023, Oranga Tamariki filed further applications for a s 101custody order and a s 110 additional guardianship order. Oranga Tamariki submittedthat the application filed in September 2022 remained live but filed the presentapplication as a "pro forma" application in the event there was uncertainty as towhether the Court had jurisdiction to determine the original application which hadbeen adjourned in September 2022 following agreement between the parties.[50] On 4 February 2023, Judge Smith issued directions concerning the reconvenedhearing. He directed an affidavit of Mr van den Brink was to be included in theevidence as it did not cause prejudice to Ms Henderson, given the matters were withinher knowledge and should have been able to be responded by her. He also made adirection concerning the redacted CYRAS notes (apparently notes kept byOranga Tamariki relating to Ryan) to be filed no later than 10 February 2023 and thatMs Henderson could respond viva voce. The Judge requested Oranga Tamariki38 March 2023 decision, above n 2, at [3], [5]–[14], [65], [74] and [86].39 Affidavit of Mr Jono Cotton, 8 September 2022, at [40].include in those redacted notes only what it considered relevant (as the original noteswere voluminous).[51] A hearing was set down for 28 February 2023.[52] Ms Henderson filed affidavits by herself, Ms F and Ms S. Those threeaffidavits were filed out of time and then admissibility was dealt with in the judgment.Mr Fry filed a second report at the direction of the Court. Mr Trainor and Mr Fryagain gave evidence and were cross-examined, including by Ms Henderson.Ms Henderson gave evidence and was cross-examined.[53] Following the hearing, the Judge made the s 101 and s 110 orders anddischarged the s 78 order as well as approving a s 128 plan.40[54] In view of the fact that Ms Henderson made a number of submissions as toevents which occurred after the appeal, for the sake of completeness, I record theprocedural events occurring after the March 2023 decision.[55] In May 2023 Ms Henderson made a first application for leave to theFamily Court to vary the custody order made. This was declined on the basis therewas no change in material circumstances. A second application for leave was alsodeclined on 18 May 2023.[56] On 1 June 2023 a further s 128 plan was filed in the Family Court for review.The plan was approved on 23 June 2023 by the Judge.41 At the time of that reviewRyan was engaging in parent/child therapy with a parent/child therapist. According tothe s 128 plan, Ms Henderson joined for part of the session. The Judge noted thatOranga Tamariki was to ask whether the therapist could "put any recommended stepsin place for Ms Henderson as sought by her, which Ms Henderson had described tothe Judge as needing to be 'SMART goals'".4240 March 2023 decision, above n 2.41 Chief Executive of Oranga Tamariki—Ministry for Children v [Henderson] FC Palmerston NorthFAM-2021-054-405, 23 June 2023 (Minute of Judge Broughton).42 At [9(h)]. Ms Henderson explained that the acronym "SMART" meant Specific, Measurable,Achievable, Relevant and Time-bound.[57] The custody and guardianship orders in favour of Oranga Tamariki were tocontinue with a further review to take place in six months' time.43 Ms McKennaretained her appointment as counsel for the child in the Family Court and is involvedin the review hearings.The Family Court decisionThe September 2022 hearing and interim judgment[58] Ms Henderson had been represented by counsel, Ms Faimalie, before andduring the September 2022 hearing. A minute of Judge Smith dated29 September 2020 records the parties' agreement to adjourn the hearing and themaking of various interim orders.44 His Honour recorded that the Court had anapplication before it for a care and protection order by Oranga Tamariki made on8 September 2022 and that Oranga Tamariki had long been involved in relation toRyan. The proceedings had first started while he was 10 years old, and he was now12. The Judge noted that a s 101 interim custody order had been made previously, hadbeen extended by the Family Court on 9 August 2022, and was due to expire at 5 pmon 3 October 2022.45[59] The Judge recorded the September 2022 hearing had begun with evidence fromMr Fry, a psychologist retained to complete a s 133 report,46 and from Mr Trainor,another psychologist employed by Oranga Tamariki.47[60] The Judge noted that after their evidence was given, the parties felt they couldwork their way through the issues without further evidence or cross-examination beingundertaken. He noted the hearing commenced at 9 am (on the previous day) and thatit was "now 5.30pm on the second day". The Judge noted the parties had worked on43 At [9(c)].44 Chief Executive Oranga Tamariki—Ministry for Children v [Henderson] [2022] NZFC 10070[2022 interim decision]. The minute is described as a judgment (in its band) but the Judge refersto it as a minute in the text.45 At [1]–[2].46 As this was a proceeding under the Oranga Tamariki Act, the report was prepared under s 178 ofthe Oranga Tamariki Act, rather than s 33 of the Care of Children Act. Nothing turns on this.47 2022 interim decision, above n 44, at [3].the matter all day.48 Following the September 2022 hearing he recorded thefollowing:49(a) there was no agreement by Ms Henderson that there should be as 101 order, which is the usual follow-on from a s 102 or a dismissal,as may be appropriate.(b) Ms Henderson really wanted to prove that she was able to undertakeRyan's care.(c) The evidence of Mr Fry and supported by Mr Trainor was thatMs Henderson needed to undergo some serious work for schema beforeshe would be in a position to have full day-to-day care of her son. TheJudge had no doubt that she had every intention to undergo that workbut said "we need to see the outcomes of that before the Court wouldbe comfortable in there being an order in her favour in that way."50(d) The s 102 order which was in place was for shorter than the maximumperiod of six months and was to be varied to extend to 9 February 2022(the full six months).(e) By consent the Judge varied the s 102 order to extend it to9 February 2023.(f) No s 101 order would be made, although there had been discussionabout care to continue with Ryan's current caregiver Ms F,Ms Henderson's cousin. Ryan had been with her only approximatelythree weeks at the time of the hearing, so the Judge indicated it was tooearly for there to be a s 101 order in her favour. He indicated that couldbe addressed by "a submissions-only hearing prior to 9 February toaddress that issue".5148 At [4].49 At [5].50 At [6]51 At [10].[61] The Judge also noted following the September 2022 hearing he wanted to"make clear to all parties" that unless there was "sign-off by the people working withMs Henderson otherwise", a s 101 order would be made early next year. He notedthat if the s 101 order was not in favour of Mr F, it should be in favour ofOranga Tamariki if there was "no other person that is appropriate".52 He went on tonote that the parties had by consent worked through an amended plan dated29 September 2022 which had been considered in detail and he was then content thatthe plan was "appropriate in all the circumstances".53 The Judge noted it provided forreporting of both Ms Henderson and Ryan as to how they were progressing.54 HisHonour directed that if anything came from those reports in the interim in respect ofeither Ryan or Ms Henderson, then there was leave to bring the matter back before theCourt on 72 hours' notice.55[62] His Honour had specified that there be a directions conference scheduled forlate January 2023 to address the new plan or orders that were to be made in light ofthe amended plan and urged Oranga Tamariki to provide the relevant documents earlyin the new year, given the order would expire on 9 February 2023.56[63] At the end of the September 2022 minute the Judge added under the heading"Addendum" that Mr Fry's brief was enlarged "to enable him to engage with Ryan tomonitor the implementation of the plan from Ryan's perspective."57 He also directedthat Ms McKenna as lawyer for Ryan was "to liaise with Mr Fry for an update on aregular basis".58[64] The Judge recorded that Oranga Tamariki consented to a s 101 order beingmade in favour of Ms F in February 2023 provided everything was progressing "as isintended by the plan, and that Ryan is in a safe and well place".59 He went on to recordthat he took Ms Henderson's indication that she wished "any s 101 order to be in52 At [11].53 At [12].54 At [11]–[12]55 At [13].56 At [14].57 At [17].58 At [17].59 At [18].favour of Ms F" to be an acknowledgement that care and protection issues existed andthat such an order was appropriate. He went on to say:60 That is not to say that we are making a care and protection order todayother than the s 102 extension that I have agreed to, but that is a position fromwhich Ms Henderson cannot resile when we come to February next year.Subsequent events[65] The Judge directed in a minute of 14 December 2022 that the parties, includingthe social worker, Mr Fry, Ms Henderson and Ms F would discuss issues which hadarisen and there was to be a next call on 27 January 2023 with a report as to progressfiled three days beforehand. Mr Fry's reports were directed to be made available tothe psychologist Mr Buhr.61[66] Oranga Tamariki filed further ss 101 and 110 applications on 30 January 2023as "pro forma applications" in the event there was any uncertainty as to the jurisdictionto determine the original application.[67] The proceedings were called before Judge Moss on 31 January 2023. Shenoted in a minute of that date that the applications had been part-heard by Judge Smithand scheduled a conference. A settlement conference was held on 2 February 2023 atwhich Oranga Tamariki indicated that it still sought a s 101 custody order.Oranga Tamariki identified the then current therapeutic supports for Ryan andMs Henderson and confirmed it would cover the financial costs.[68] The s 102 interim custody order made on 29 September 2022 was to haveexpired on 9 February 2023.[69] On 8 February 2023 the matter again came before Judge Moss, who made as 78 interim order to maintain custody for Oranga Tamariki until the s 101 applicationcould be finally determined. The Judge noted that having reviewed the transcript ofthe September hearing, on the evidence of Mr Fry and Mr Trainor, it would be contrary60 At [19].61 [Henderson] v Oranga Tamariki – Ministry for Children FC Palmerston North FAM-2021-054-405, 14 December 2022 (Minute of Judge Smith). Mr Buhr was a psychologist engaged to workwith Ms Henderson.to the needs and best interests of Ryan to let the s 102 order expire without the exerciseof the Court's jurisdiction under s 78. She noted there was no evidence thatMs Henderson had addressed any issues which appear to adversely impact on Ryan'scare and no evidence of gains made in any therapeutic programs.62[70] On 28 February 2023, the Family Court held a further one-day hearing.Mr Cotton, Ryan's social worker, provided a report and gave evidence and wascross-examined. Mr Fry had filed a second report dated 22 February 2023. He gaveevidence and was cross-examined. Ms Henderson filed evidence by affidavit. Shecross-examined the Oranga Tamariki witnesses, gave evidence and wascross-examined.Judgment of 17 March 2023[71] The Judge commenced the March 2023 judgment by noting that in the courseof the two-day hearing commencing on 29 September 2022, having heard evidencefrom Mr Fry and Mr Trainor, "the parties felt they could work their way through theissues without further evidence or cross-examination being undertaken."63 HisHonour went on to say that it had become obvious from Mr Fry and Mr Trainor'sevidence that Ms Henderson needed to undergo some further work before the Courtwould be comfortable with an order in her favour.64[72] The Judge noted that following the September 2022 hearing, matters had notprogressed with the speed necessary for the proceeding to be concluded before theexpiry of the s 102 order on 9 February 2023.65 There had been a s 78 order in favourof the Chief Executive made and that was the subject of a review at this hearing.[73] The Judge noted the February 2023 hearing was intended to determine inwhose favour a s 101 custody order for Ryan should be made and whetherOranga Tamariki should be appointed as an additional guardian. Ms Henderson'sapproach was "contrary to concessions and agreements she made in previous62 [Henderson] v Oranga Tamariki – Ministry for Children FC Palmerston North FAM-2021-054-405, 8 February 2023 (Minute of Judge Moss); and the 2022 interim decision, above n 44, at [16].63 March 2023 decision, above n 2, at [6].64 At [7].65 At [15].hearings" in particular before him in September 2022.66 Ms Henderson had dispensedwith the services of her lawyer and was representing herself. The Judge commentedthat she had taken the pro forma application filed by Oranga Tamariki on30 January 2023 as a whole new application and sought "to relitigate all the mattersthat had previously been dealt with over an extensive period of time."67[74] The Judge dealt with affidavits filed by Ms Henderson out of time andMs Henderson's affidavit was described as "extensive".68 The Judge would not admitthe affidavits of Ms F and Ms S. The Judge said he had reserved his decision onwhether they would be accepted to give him the opportunity to read them. He refusedleave for the affidavits by Ms F and Ms S to be put before the Court on the basis thatthey were mainly "hearsay, the content is not factually directed but are, in essence,submissions on behalf of Ms Henderson."69 The Judge went on to say that they didnot assist the Court in any way whatsoever and to have admitted them into evidencewould have required cross-examination, which would have meant the hearing couldnot be concluded within the day allocated. He said that "given the Court's currentbacklog, it may have been some months before a longer hearing time could beaccommodated."70[75] His Honour went on to say that Ms Henderson's affidavit suffered from thedefects that were apparent in the affidavits of Ms F and Ms S. It was "primarilyargumentative, forming a long and rambling submission about all the matters withwhich she disagrees".71 However, the Judge accepted the affidavit into evidence ratherthan going through the affidavit and striking out parts as suggested byOranga Tamariki. The Judge said he would deal with the issue by making assessmentsas to relevance as he went through it.72[76] The Judge noted that Ms Henderson's position was that there were no care andprotection issues for Ryan when he is in her care and that he should be returned to her66 At [20].67 At [20]–[21].68 At [22].69 At [23].70 At [23].71 At [24].72 At [22]–[24].immediately.73 Ms Henderson denied matters which she had agreed to in the past andresiled from working to address her relevant issues. This was primarily on the basisthat "Oranga Tamariki has failed to provide them [sic] and therefore they are notserious in their statements that return to home is their goal."74 The Judge noted thatMs Henderson had a distrust of Oranga Tamariki and had ceased to work with them"in any constructive way", particularly in the last few months.75[77] The Judge then noted that he therefore needed to determine whether care andprotection issues still exist "and if so, what the appropriate order or orders shouldbe".76[78] The Judge said there had been concerns reported in relation to Ryan for someyears, the first being raised with Oranga Tamariki in March 2015 when Ryan was fouryears of age. The concerns at this stage were unresolved and no steps were taken. Hehad been in the custody of Oranga Tamariki since 26 February 2021, when he was 10.He had come into Oranga Tamariki's care under a s 140 agreement signed byMs Henderson on that day.[79] The Judge noted that while Ms Henderson was now denying there wereconcerns, those concerns were well documented and admitted by Ms Henderson. TheJudge pointed to her affidavit of 21 October 2021 accepting that she needed assistancewhich she was unable to provide for Ryan and saying that her view was that hisbehaviour was a neurological issue. In her affidavit of 15 November 2021, the Judgenoted that Ms Henderson had said she attempted to the best of her ability to manageRyan's behaviours and acknowledged that her past actions had not been enough andthat she had sought intensive support for Ryan's behaviour. The Judge found thatMs Henderson had physically punished the child, referred to her withholding foodfrom him and noted she had made comments to Ryan in attempting to manage hisbehaviour that in hindsight she accepts were a "terrible remark to make to a child".7773 At [26].74 At [26].75 At [27].76 At [28].77 At [29]–[43].[80] The Judge noted a common theme adopted by Ms Henderson was that if shedisagreed with the deponent "then they are lying or conspiring against her."78[81] The Judge went through references to Ryan's behaviour taken from the notesand various affidavits. He referred to an incident, which Ms Henderson said hadhappened twice, concerning Ryan tying a cord around his neck. The Judge notedreports back to 2016 about Ms Henderson asking the school to withhold food fromRyan as he had been naughty. The school reported Ryan was going to school withinappropriate lunches like "dry Weetbix and nothing else".79[82] The Judge also referred to a number of incidents concerning Ryan as follows:80[58] On 3 February 2021, there was a police callout from Ms Henderson.The National Contact Centre (NCC) note recorded:Stefan has attended a job at Ryan's home. He has attempted suicidethree times. Ryan has been involved with Oranga Tamariki. Therewas an FCG held but Stefan does not know the outcome. Ryan liveswith his mother with no family support.[59] Ms Henderson takes objection to the statement that there were threeattempts, saying it was only two. From the Court's position, any such attemptis a concern, whether it be one, two or three.[60] On 5 January 2021, Ryan's school reported a similar incident whereRyan tied a cord around his neck when he was escalated. Further, on12 February 2021, there was another such similar incident. The NCC reportstated:Ms Henderson's child Ryan is under Donata, a social worker inPalmerston North. Every evening, Ryan is screaming for about fourhours. He also attacks Ms Henderson. Police were called out onMonday and Tuesday. Police calm him down but as soon as theyleave, Ryan will escalate again. On Wednesday, Ms Henderson askedher friend to come over. Yesterday Ryan attacked a child at school.Ms Henderson has shut herself in the room and Ryan is wonderingaround the house.[61] On the follow up call by NCC on 12 February, the reported states thatMs Henderson rang the police and was waiting for them to reply. The reportedstated:Ms Henderson has already rung the police. When the police arrived,Ms Henderson will tell the police that she cannot manage Ryan and78 At [43].79 At [47].80 Footnotes omitted.that she wants him to be placed at either Tai Matai or withOranga Tamariki.[62] Ms Henderson struggled to deal with Ryan's behaviour. It was madeapparent on 17 February 2021 when Ryan was interviewed disclosing thepunching and kicking. He also stated that Ms Henderson had a knife and thatshe would cut him with the knife, pointing to a scar and stated Ms Hendersoncut him during and escalation with a pen.[83] The Judge identified the difficulties that schools and organisations had dealingwith Ms Henderson's constant complaints and her need to control every situation asfollows:81[63] Ms Prabhakar noted that she was concerned the ability of the schoolor any other organisation involved with Ryan have depended on the ability ofthose agencies to agree with Ms Henderson. She noted that with whathappened with [redacted] School, they felt it was overwhelming to deal withMs Henderson's constant complaints after she learnt the school had made thereport of concern and they struggled to put supports in place for Ryan due tothis. Ms Prabhakar's concern was that Ms Henderson did not have any insightinto the needs of Ryan and that her focus was always on controlling thesituation, giving less thought about the needs and aspirations of Ryan. In herview, Ms Henderson has made decisions for Ryan that were not in his bestinterests on several occasions.[84] The Judge noted that Ms Henderson did not appear to understand the issuesrequired to be resolved to deal with the needs of Ryan in order to ensure that Ryan isreturned to her care. He noted that the discussion at the September 2022 hearing wasto ensure that Ms Henderson did undertake the work necessary to be able to take careof Ryan.82 The Judge went on to say that Ms Henderson's approach was that becausematters had not panned out as Ms Henderson had anticipated, it therefore was the faultof Oranga Tamariki and that justified the return of Ryan to her. However, the Judgenoted:[67] From the Court's perspective, unless there is clear evidence thatMs Henderson is in a position to care for Ryan and to deal with his issues, asand when they should arise, there is a clear concern as to his care andprotection until that work has been carried out and verified.[85] The Judge went on to note that the work had not been completed and that whileMs Henderson presented as "intelligent and very committed to the process", she81 Footnote omitted.82 At [64]–[65].presented as feeling prosecuted and spoke in a blaming manner.83 The psychologistwho had been working with Ms Henderson, Ms Brosman, was no longer available todo so, and Ms Henderson was referred to Mr Buhr. His recommendation was thatMs Henderson and Ryan engage in "parent-child therapy with a suitable therapist."84The Judge said the work had "not really got off the ground" and there remained a careand protection issue insofar as Ryan was concerned.85[86] The Judge noted that relationships established between Ryan and third partiesincluding Mr L (reputedly the sperm donor that led to Ryan's conception, who wasintroduced to Ryan through Ms Henderson) were in jeopardy. The Judge said he wasnot concerned with determining whether Mr L was Ryan's father or not but he wasconcerned about the importance of Mr L (and other parties) to Ryan. He went on tosay:[77] As the relationship between those persons has increased,Ms Henderson's antipathy to them has also increased. She is now intent ondestroying any such relationship at all.[78] In Mr Fry's reports he has set out the importance that Ryan placed onthese people. Approximately two months before this hearing came, a text wassent on Ryan's phone to Mr Cotton, which stated that he did not wish to seeMr L anymore. As Mr Fry points out in his second report, it is concerning thischange of attitude took place so suddenly.[87] The Judge found that the text purporting to be from Ryan was "either writtenby or at the behest of Ms Henderson."86 The Judge said that it was apparent that shehad been talking continually with Ryan about the issues before the Court and soughtto "destroy the relationship he has with Mr L."87 His concern was expressed asfollows:[80] That Ms Henderson would use Ryan in this way to get the result thatshe wants in this proceeding, heightens the concern that the Court has as toher parenting abilities. She is prepared to psychologically abuse her son forher own means. That is a care and protection issue.[81] The reports of Mr Trainor and Mr Fry support the above statement.83 At [68].84 At [71].85 At [72].86 At [79].87 At [79].[88] The Judge noted that Mr Trainor was cross-examined at the September 2022hearing, when his focus had been identifying any mental health conditions experiencedby Ms Henderson and, if necessary, to make recommendations as to what might bedone to address those. The psychologist reported Ms Henderson held deeplyinternalised beliefs (schema) which indicated she had difficulty with "emotionalawareness and healthy regulation", was often suspicious and mistrustful, and adheredto a set of inflexible internalised rules and standards she expects others (unrealisticallyat times) to achieve.88 The report noted that her inflexibility meant Ms Hendersonneeded as much certainty and perhaps control as possible and this was "oftenunderpinned by an intolerance for predictability and ambiguity which can beexperienced as threatening, stressful and anxiety provoking".89[89] The Judge noted that Mr Trainor was of the opinion Ms Henderson wouldbenefit from specific therapy as a necessary step before Ms Henderson and Ryan livedtogether again full-time. The Judge noted Ms Henderson had not engaged in suchtherapy, with the result that there was "still an issue which she needs to address".90[90] The Judge referred to the reports of Mr Fry dated 27 September 2022 and22 February 2023, noting that he had been cross-examined at the September 2022hearing by Ms Henderson's counsel and at the February 2023 hearing byMs Henderson in person.[91] The Judge concluded that the circumstances in which he was required toconsider whether the child was in need of care and protection or was suffering or likelyto suffer serious harm included whether the child or young person was, or was "likelyto be, abused (whether physically, emotionally, or sexually) deprived, ill-treated orneglected."91 He referred to s 4 of the Oranga Tamariki Act setting out the purposesof the Act, including supporting and protecting children and young persons, "toprevent them from suffering harm (including harm to the development and well-being), abuse, neglect, ill-treatment, or deprivation or by responding to those things."9288 At [83].89 At [83].90 At [84]–[85].91 At [92]–[96].92 At [95], citing the Oranga Tamariki Act, ss 4(1)(b) and 4A(1).[92] The Judge concluded that the original care and protection concerns had beenestablished and that Ms Henderson, by her own statements, "was incapable of caringfor Ryan" and had "done little to address the issues which led to Ryan leaving hercare."93 He then made the orders for custody in favour of Oranga Tamariki andappointed the Chief Executive as the additional guardian of Ryan.[93] Before turning to consider the grounds of appeal I deal with Ms Henderson'sapplication to adduce further evidence on appeal.Application to adduce further evidence on appeal[94] Ms Henderson filed an application to adduce further evidence. It was notspecifically argued in oral submissions. The evidence sought to be adduced is set outin Ms Henderson's affidavit dated 24 July 2023. The further material was voluminousand includes:(a) The s 128 care plan.(b) The Court transcripts of 20 February 2023.(c) Emails and various records setting out her concerns due to Ryan's care,including lack of education, allowing him to access inappropriatewebsites, physical force used on Ryan to protect Oranga Tamariki's carand an assault at a care facility.(d) Affidavits of Ms Henderson, Ms S and Ms F which had been excludedby the Family Court Judge on 28 February 2023.(e) Evidence relating to Mr Trainor not being a qualified "schematherapist", in particular evidence in a document which she producedthat there is no evidence that schema therapy affects parenting.(f) Evidence concerning the s 140 agreement dated 26 February 2021.93 At [99].(g) Evidence about access, including emails as to changes with access.(h) Oranga Tamariki case records.(i) Evidence of emails and other material showing Oranga Tamariki hadrefused to work with Ms Henderson for years and "continuously movedthe goal posts".(j) Evidence as to inaccurate records filed with the Family Court.(k) Evidence showing that Oranga Tamariki has always showed biasagainst her.(l) Evidence supporting her claim of improper legal advice given by herlawyer representing her. Ms Henderson says a lawyer did not do as shewas instructed and gave Ms Henderson "bad legal advice". Theevidence related to material that she said she gave her lawyer and herlawyer did not use.(m) Evidence of lack of support, including research she had done on howto manage Ryan's behaviour.(n) Current issues about access.[95] A party to an appeal may adduce further evidence only with leave of theCourt.94[96] The Court may grant leave if there are special reasons for hearing theevidence95 The power is to be exercised sparingly and the Court typically enquireswhether the evidence is fresh, cogent and material.9694 High Court Rules, r 20.16(2).95 Rule 20.16(3).96 Comalco New Zealand Ltd v Television New Zealand Ltd (1996) 10 PRNZ 573 (HC) at 579.[97] In rare circumstances, evidence that was reasonably available for the hearingat first instance may be admitted.97[98] The evidence will require a de novo assessment and consideration of how itaffects the correctness of the decision under appeal.98[99] I do not intend to address each item sought to be adduced separately. Therewas a substantial amount of material before the Family Court such as the case notesand Ryan's history. The appeal should be dealt with on the basis of the material thatwas before the Family Court.[100] However, I comment in general terms on the present issues causingMs Henderson concern about the s 128 plan and about the excluded affidavits.[101] In relation to events which have occurred since the proceeding was heard inFebruary 2023, many of Ms Henderson's concerns relate to issues concerning thes 128 plan. The plan is intended to detail the objectives sought to be achieved for Ryanand the services and assistance which is to be provided for him as well as the objectivesand steps that a parent should take or the "behavioural changes" that must occur beforehe is returned to his mother. The content required in such plans is set out in s 130 setout above. The s 128 plan is a plan for the future and is in many respects aspirational.It is expected there will be some flexibility in the arrangements.[102] Ms Henderson indicated the present arrangements were such that she had Ryanin her home for a substantial amount of the time, including after school and onweekends. This had progressed from having access to him on two days only. Theincrease in time she was spending with Ryan had occurred since the last schoolholidays, which she thought was about the end of July 2023.[103] One concern Ms Henderson had was that Oranga Tamariki had changed thetime for her to pick up Ryan. The variation was from a 7 pm pick up to a 6:30 pm pick97 Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC)at [21].98 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].up. She said this was unfair and was merely to convenience Oranga Tamariki or thecaregiver.[104] It is inevitable that some flexibility is generally be required in executing a s 128plan. Oranga Tamariki has the care of Ryan under s 101 and is entitled to decide theterms and conditions of any person having access to Ryan. Therefore, if there areadjustments to access times, Oranga Tamariki may make the adjustments.99[105] The mechanism for review of the s 128 plan has been set by the Family Court.It is reviewed every six months. The fresh issues raised are outside the ambit of thisappeal and appropriately dealt with in the Family Court.[106] The Judge said in relation to the affidavits of Ms Henderson, Ms S and Ms F:100[23] I refused leave for the affidavits by Ms F and Ms S to be put beforethe Court. Most of those affidavits are hearsay, the content is not factuallydirected but are, in essence, submissions on behalf of Ms Henderson. Theydo not assist the Court in anyway whatsoever. To have admitted them intoevidence would have required cross-examination and that it would have meantthe hearing could not concluded within the day allocated. Given the Court'scurrent backlog, it may have been some months before a longer hearing timecould be accommodated.[107] I have reviewed the affidavits of those deponents. They contain the views ofthe deponents and submissions in support of Ms Henderson's position. Most of the"evidence" in them is hearsay and peripheral to the matters in issue. If they had beenadmitted and counsel had sought to cross-examine the deponents, the time requiredfor the hearing would have been lengthened significantly. The Judge made no error inrefusing to allow them to be adduced in evidence.[108] I do not consider any of the evidence sought to be adduced is fresh, cogent,and material. Leave to adduce the fresh evidence is refused.10199 Oranga Tamariki Act, s 107.100 March 2023 decision, above n 2.101 High Court Rules 2016, r 20.16.Predetermination and bias[109] The allegations that Ms Henderson advances are essentially that the Judge hadpredetermined the outcome of the proceeding or was biased.[110] Ms Henderson says that Judge Smith had already predetermined at theFebruary 2023 hearing that he was going to issue a s 101 custody order. She said thatwhile new evidence was accepted at the later hearing, that was only on the basis ofrelevance for supporting the making of the s 101 order. Ms Henderson says that whileher affidavit was accepted as evidence, she was never cross-examined by eitherOranga Tamariki or the lawyer for the child on the evidence contained in her affidavit.In addition, she said the Judge rejected the affidavits filed by Ms F and Ms S on thebasis that the evidence contained in those affidavits was not relevant. Ms Hendersonsays that her application for discovery was never heard and therefore not granted, andan "amicus curiae" for her denied.[111] The Judge was entitled to take into account concessions that Ms Hendersonmade in the course of the September 2022 hearing. At that stage, she agreed to thes 102 order in favour of Oranga Tamariki and to a plan which included further workand counselling for her to deal with the issues identified which were affecting herparenting of Ryan and necessitated the custody order and the support by way ofcounselling and psychological assistance. Ms Henderson agreed to thosearrangements through her lawyer at the hearing. These arrangements were consistentwith the care and support arrangements made a year earlier in February 2022 pursuantto the memorandum she signed seeking consent orders. They are also consistent withthe s 140 agreement that she had earlier agreed to.[112] The fact that Ms Henderson subsequently dispensed with the services of hercounsel and acted for herself for the second part of the hearing does not mean she canrequire that the hearing to begin again, nor can she resile from the concessions madeon her behalf as to the evidence and how the hearing would be conducted. The Judgewas responsible for the management of the hearing. He noted in his March 2023decision, that there had only been a day allocated for the hearing and he was requiredto ensure that the time was used well and focussed on relevant issues — namelywhether Ryan needed care and protection and in particular whether he was safe withMs Henderson as his full-time carer. He was not required to embark on a wide-rangingreview of peripheral matters such as whether Ms Henderson now disputed heragreement to the earlier s 140 agreement.[113] At the same time, Ms Henderson was entitled to a fair hearing. In my view shedid receive a fair hearing. Despite Ms Henderson's concessions made at theSeptember 2022 hearing, the Judge in the March 2023 judgment addressed thequestion of whether a s 101 order was appropriate at the time of the February 2023hearing. He reviewed Ryan's involvement with Oranga Tamariki as well as theacknowledgements and statements made by Ms Henderson in the past. The Judge hada range of sources of information regarding care and protection issues. At theSeptember 2022 hearing, Judge Smith had heard evidence from Mr Trainor andMr Fry, both psychologists. He also had affidavit evidence spanning several yearsfrom Oranga Tamariki social workers Mr Cotton, Ms Mitchell and Ms Prabhakar. Hehad evidence from Ms Henderson and Ms F as well as therapeutic reports fromMs Bosman and Mr Buhr, and reports, plans, and family group conferencing reportsrelating to Ryan. At the February 2023 hearing, Mr Cotton, Ms Henderson and Mr Frygave updating evidence. Ms Henderson personally cross-examined both Mr Cottonand Mr Fry extensively. She was also cross examined and filed submissions at thehearing.[114] The test for apparent bias has been expressed by the Supreme Court in thefollowing way:102[Whether] a fair-minded lay observer might reasonably apprehend that thejudge might not bring an impartial mind to the resolution of the question thejudge is required to decide.[115] The two-step test involves first the identification of what it is said might leada Judge to decide a case other than on its legal and factual merits, and secondly, anarticulation of the logical connection between the matters raised and the feareddeviation from the course of deciding the case on its merits.102 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at[3].[116] While the Judge had noted the concessions made at the September 2022hearing which had resulted in the interim custody orders being made by consent, hespecified that he was required to consider "whether care and protection issues stillexist and if so, what the appropriate order or orders should be."103 He noted thatMs Henderson's position was that there were "no care and protection issues for Ryanwhen he is in her care and that he should be returned to her immediately."104[117] The Judge then carefully went over the background, noting that Ms Hendersonhad earlier accepted that Ryan's behaviour was out-of-control at home and at schooland that she accepted Ryan needed the assistance which she was unable to provide forhim.105 He was entitled to rely on earlier concessions and agreements byMs Henderson but was careful to note he needed to make a finding on the currentposition.[118] The Judge concluded there was evidence that there were care and protectionissues in relation to Ryan and that Ms Henderson had not completed the work that wasneeded before she would be in a position to take Ryan back into her care, saying:106[68] It is frustrating that the work which commenced was unable to becompleted but it would appear from the report of Lila Bosman, clinicalpsychologist, that Ms Henderson presented in a defensive and argumentativemanner. While she presented as intelligent and very committed to the process,her presentation was clear that she felt prosecuted and spoke in a blamingmanner and used factual statement to try and elicit sympathy for her situation.It is noted that Ms Henderson is very aware that she lacks effective parentalcontrol in her relationship with Ryan. In her recommendations, Ms Bosmanstated:Ms Henderson is not currently in a position to take sole responsibilityfor Ryan's care but if she feels like she is being treated fairly and withclear guidelines, she is likely to be one of the more stable figures inRyan's life. A structured, wraparound service is recommended.[69] Ms Bosman also recommended Ms Henderson continued to receiveongoing therapy.[70] Following Ms Bosman being no longer available to work withMs Henderson, she was referred to Mr Steven Buhr. In his report of17 February 2023, he reported that Ms Henderson holds a significantly hostileopinion of Oranga Tamariki, one that she further links to anyone who has been103 March 2023 decision, above n 2, at [27].104 At [26].105 At [34]–[35].106 Footnotes omitted.or is involved in the case pertaining to Ryan and her, such as previouspsychologists, Court officials and the like. Ms Henderson, in his view, canalways provide reason to be angry with, and hostile towards, Oranga Tamarikiand related parties. It was expressed in therapy that he was associated by herwith Oranga Tamariki and hence she could not be fully engaged and open intherapy, as it would be detrimental to her getting Ryan back into her care.[71] Mr Buhr's recommendation was that Ms Henderson and Ryan engagein parent-child therapy with a suitable therapist.[72] It is concerning to the Court that the work which was identified inSeptember 2022 to be done by Ms Henderson has not really got off the ground.That leaves the Court in a situation where its concerns are that there is still acare and protection issue as so far as Ryan is concerned.[119] The Judge went on to refer to the evidence of Mr Fry, and Ms Henderson'santipathy toward people with whom Ryan had formed a relationship. Mr Fry hadnoted the influence of Ms Henderson on Ryan. The Judge said:107[78] In Mr Fry's reports he has set out the importance that Ryan placed onthese people. Approximately two months before this hearing came, a text wassent on Ryan's phone to Mr Cotton, which stated that he did not wish to seeMr L anymore. As Mr Fry points out in his second report, it is concerning thischange of attitude took place so suddenly.[79] The way in which that transpired leaves the Court in no doubt that textwas either written by or at the behest of Ms Henderson. It is apparent she hasbeen talking continually with Ryan about the issues that are before the Courtand seeks to destroy the relationship he has with Mr L.[80] That Ms Henderson would use Ryan in this way to get the result thatshe wants in this proceeding, heightens the concern that the Court has as toher parenting abilities. She is prepared to psychologically abuse her son forher own means. That is a care and protection issue.[81] The reports of Mr Trainor and Mr Fry support the above statement.[82] Mr Trainor provided a report annexed to his affidavit of 1 February2022. He was cross-examined at the September 2022 hearing. His focus wason identifying any mental health conditions being experienced byMs Henderson and if necessary, make recommendations as to what might bedone to address these.[83] Mr Trainor reported Ms Henderson deeply held internalised beliefs(schema) which indicate that she has significant difficulty with emotionalawareness and healthy regulation, is often suspicious and mistrustful, adheresto a set of inflexible internalised rules and standards she expects others(unrealistically at times) to achieve. Her inflexibility likely serves as a methodfor Ms Henderson having as much certainty and perhaps control as possible.This is often underpinned by an intolerance for unpredictability and ambiguitywhich can be experienced as threatening, stressful and anxiety provoking.107 Footnotes omitted.[84] Mr Trainor was of the opinion Ms Henderson would benefitpersonally from engaging a (schema) therapy to improve her awareness ofhow her past has created her internalised beliefs, how these are triggered, andhow they can be modified and softened so that repeated, unhelpful, and evendamaging patterns are disrupted. In Mr Trainor's view that is a necessary stepbefore Ms Henderson and Ryan lived together full time again.[85] Ms Henderson has not engaged in such therapy, possibly through nofault of her own but certainly not assisted by her. The actions she has takensince the September 2022 hearing demonstrate her schema are a strong as ever.The result though, whatever the reason is it is still an issue which she needs toaddress.[86] Mr Barry Fry provided two reports on 27 September 2022 and on22 February 2023. He was cross-examined in September 2022 and again on28 February 2023 after hearing the cross-examination of Ms Henderson andother deponents.[87] Mr Fry reported:193. In my perception, a change in the nature of adult dynamics isRyan's first priority. Counselling, even reunificationcounselling as mother termed it, without attention to hisprimary need would be only marginally successful.194. In my view, Ryan presents a number of other significant areasof need:• A positively orientated management style in whichhis productive behaviour, is received with approvaland appreciation.• A quiet and measured response to emotional outburstsor opposition to directions. A parental outburst willserve only to escalate a confrontation.• The provision of outside support for Ryan, in thenature of his mentor A.• The avoidance of interpersonal tensions among theadults in Ryan's life. The perception of such willaggravate Ryan's existing anxiety and consolidate hisfelt need to compartmentalise his feelings andrelationships.• He needs to see and hear the adults in his life livingand working in harmony.• He needs to have his self confidence and esteemnurtured.[88] The tension as to Ryan's contact with Mr L and Ms T was by then anissue. It was clear to Mr Fry Ryan did not share his mother's views andjudgements of them. Ryan valued their influence and companionship, as wellas Ms T's daughter.[120] The Judge went on to conclude that the original care and protection concernshad been established and that Ms Henderson had done little to address the issues whichled to Ryan leaving her care. He said:[100] Furthermore, Ms Henderson has shown she is incapable of puttingRyan's needs above her own. It is clear she has had adult conversations withRyan to assist with her obtaining his return. She has placed him in a situationof conflict between her views and his own as to those people who areimportant to him. Mr Fry's belief is Ryan will have zero contact with thosepeople, even if he is with Ms F, if Oranga Tamariki did not have input hebelieves Ms F will not encourage Ryan to have contact with those people. Iaccept that view.[101] There can be no confidence Ryan would be safe in Ms Henderson'scare.[102] At the hearing in September 2022, one of the reasons for delay in adetermination was to see if the placement with Ms F would meet Ryan's needs.As a relative of Ms Henderson, she was a whanau placement.[103] Regrettably, Ms F has shown she will follow Ms Henderson's wishesand accepts at face value Ms Henderson's statements. I accept the submissionof the lawyer for Ryan Ms F is an 'ally' of Ms Henderson and that Ryan's bestinterests and well-being will take a back seat to the interest of Ms Henderson.[104] In my view Ryan needs to be in the care of Oranga Tamariki.[121] Ms Henderson also complains that the Judge did not follow the communicationguidelines in the report of the communications assistant which had been obtained forher before the September 2022 hearing. To illustrate this, she pointed to a number ofexchanges in the course of the hearing in which she was self-represented on28 February 2023. For instance, in the cross-examination of Mr Cotton, theOranga Tamariki social worker, the following exchange occurred:CROSS-EXAMINATION: MS HENDERSONQ. Mr Cotton, did you write your affidavit?A. Yes, I did.Q. What drew you to the conclusion that the schema therapycould not be addressed but the parent-child therapy asrecommended by both Ms Bosman and Mr Buhr was whatwas required?A. The –THE COURT ADDRESSES MS HENDERSON – REFERENCEPOINT (10:33:57)CROSS-EXAMINATION CONTINUES: MS HENDERSONQ. Point 17 on page 4, your Honour.A. The reports by Ms Bosman and Mr Buhr which indicated thatthe schema therapy had been unproductive and was notfurthering the goal of returning Ryan to your care and they'reboth, their, their recommendations that parent-child therapywould be the best way forward.Q. Given that the schemas were the only reason thatOranga Tamariki had custody of my child, why was therapynot productive? Why was schema therapy determined by twopsychologists not to be productive in returning Ryan to mycare?A. On reference to their reports they were unable to establishhow your schemas were affecting your parenting at thepresent time and that they found that there was still a lack ofinsight around your schemas from your own point of view.Q. So both psychologists said they could not establish how theschemas were affecting my parenting, which was the onlyreason that Oranga Tamariki had custody of my child asagreed and in the original –THE COURT ADDRESSES MS HENDERSON – ONE TOPIC(10:35:55)CROSS-EXAMINATION CONTINUES: MS HENDERSONQ. So you would consider that the schemas are no longer anissue, is that correct?[122] After a further page of evidence, Ms McKenna objects to questioning byMs Henderson as follows:Q. And exactly what was I doing that meant those schemas affected myparenting because the two psychologists that worked with me couldnot identify that?A. The care and protection concerns around your punitive parenting ofRyan.Q. So we're talking about the unproven, unsubstantiated care andprotection concerns, Mr Cotton?OBJECTION: MS MCKENNA (10:39:05)LEGAL DISCUSSION (10:39:22)CROSS-EXAMINATION CONTINUES: MS HENDERSONQ. So Mr Cotton, you have made two contradictory statements. One isthat the two psychologists have said they cannot establish that theseschemas affect my parenting, the other is that these schemas are stillan issue. If it is stated that they can, do not, they cannot establish theyaffect my parenting, how can they be an issue?OBJECTION: MS MCKENNA (10:40:07)LEGAL DISCUSSIONCROSS-EXAMINATION CONTINUES: MS HENDERSONQ. Two psychologists have stated that they cannot establish how thealleged schemas affect my parenting. So on what basis –THE COURT ADDRESSES MS HENDERSON – METHOD OFQUESTIONING(10:42:12)LEGAL DISCUSSIONCROSS-EXAMINATION CONTINUES: MS HENDERSONQ. Do you agree this is what you've previously testified to?A. Yes. The, in my reading of the reports the schema therapists havebeen unable to get past your assertion that the professionals involvedare to blame and not yourself. There's no issue with your own self.Q. That is not what the –MS HENDERSON ADDRESSES THE COURT – REFERRING TOMYSELF(10:42:59)CROSS-EXAMINATION CONTINUES: MS HENDERSONQ. That is not what the therapists reported to me. They reported that theycould not tell me what I was doing that meant I had those (inaudible10 10:43:09) –THE COURT ADDRESSES MS HENDERSON – REFER TO REPORTS(10:43:11)LEGAL DISCUSSIONCROSS-EXAMINATION CONTINUES: MS HENDERSONQ. In Mr Buhr's report –THE COURT ADDRESSES MS HENDERSON – QUERIES PAGE(10:43:32)CROSS-EXAMINATION CONTINUES: MS HENDERSONQ. – page 8, your Honour, it states: "Ms Henderson's perspective wasthat I was tasked with" –MS HENDERSON ADDRESSES THE COURT – HOW MUCH TO READOUT (10:43:41)CROSS-EXAMINATION CONTINUES: MS HENDERSONQ. "Ms Henderson's perspective was that I was tasked with addressingthe schemas identified in the Nev Trainor report and to thereforeprovide a report to Court as to whether or not the schemas were stillpresent, impacting on the Court's verdict in relation to the parentingof her son Ryan. My belief was that I was requested to (inaudible10:44:02) Ms Henderson with psychological support." So Mr Cotton,having read that, the brief given, do you agree that the brief given toMr Buhr did not meet the requirements of the section 128 plan?A. (no audible answer 10:44:22)Q. To address my schemas?A. No, the brief was to work with you on your schemas.Q. That is not what Mr Buhr has stated in his report.A. Mr Buhr was provided with Mr Trainor's psychological assessmentand that work was passed on by Ms Bosman who was previouslyworking with you on your schemas.Q. Ms Bosman did not work with me on my schemas and she made itvery clear the same situation.THE COURT ADDRESSES MS HENDERSON – DO NOT GIVEEVIDENCE (10:45:02)CROSS-EXAMINATION CONTINUES: MS HENDERSONQ. So once again I asked a question that if the psychologist is saying thathe was not, that was not the referral he received, to work on theschemas and to provide a report to the Court as to whether or not theschemas were still present, then how can that meet the requirementsof the s 128 plan?A. Mr Buhr's work with you was to address those issues.Q. Mr Cotton, it states in his report that that is not what he was employed[123] While excessive questioning may give rise to a perception of bias it must gobeyond the usual and event vigorous and substantial questioning by the Judge withoutmore will not normally give rise to apparent bias.108108 Rongotai Investments Ltd v Land Valuation Tribunal [2022] NZHC 1669 at [41].[124] The passages pointed to by Ms Henderson, do not indicate that the Judge wasexcessively interfering. He was assisting an unrepresented litigant in person tocross-examine the witness. The Judge for instance asked Ms Henderson to point tothe passages of evidence so the witness could comment on them. This was assistingher to put questions to the witness. Ms Henderson herself sought assistance from theJudge on, for instance, how much evidence to read out to the witness. A perusal of thenotes of evidence indicates that the interruptions by the Judge, and counsel, are notout of the ordinary given the circumstances.[125] Ms Henderson also says that when she was giving evidence, questions wereasked of her which she did not understand. She pointed, for instance, to hercross-examination by Ms McKenna as follows:Q. So who, who asked Ryan to ask me that question in our meetingyesterday?A. No one asked him to ask you those questions.Q. It's just a coincidence that it's exactly the same words that you've hadused in the past?A. Yes, Ryan wrote those questions himself.Q. Do you understand the difficulty of placing a child in a situation wherethey are acting out on questions that you had put to them?A. I'm sorry, I don't understand the question.Q. Yeah, I'll rephrase that, it was a wonky question, sorry. When a childis in a conflicted situation and we all, we're aware that Ryanunderstands the conflict that the adults are in at the moment. There'syourself, there's Mr L, Ms T and Oranga Tamariki. He knows howyou feel about those people. Do you think it's important that weprotect our children from becoming involved with those conflicts?A. Yes, I do in the same way I believe that a child should be protectedfrom being put in the situation where the conflict exists in the firstplace by creating the relationships with the people who do not wanthim in his mother's care.Q. So you're saying there was no conflict until Oranga Tamariki gotinvolved? Is that what you're saying?A. No, no conflict with who?Q. Well, you just said that the conflict all came about when people gotinvolved.A. No, that was your question was when a child is in a conflicted situationwith you, Mr L, Ms T, Mrs C and Oranga Tamariki involved, so thatwas your wording not mine.Q. I didn't say Mrs C, sorry.A. I'm sorry, I thought I heard Mrs C.Q. I said Ms T, Mr L and Oranga Tamariki.A. Okay.[126] The passage from the transcript indicates that Ms Henderson was capable ofrequesting a question be repeated when she did not understand it. I do not considerthat the transcript indicates that the hearing was unfair. Ms Henderson was able toseek clarification when she needed to if she did not understand a question and theCourt allowed her breaks when she requested them.109[127] In relation to the September 2022 hearing, Ms Henderson also said she hadbeen disadvantaged. She pointed to questions she considered were too long and thewitness interrupting the question making it difficult for Ms Henderson to followthings. However, Ms Henderson was represented at the hearing and it is apparent fromthe transcript that her counsel, Ms Faimalie, was actively involved in the hearing forMs Henderson.[128] The communications assistant's report notes that Ms Henderson had reportedthat the difficulties she experienced occur "in very specific circumstances."Ms Henderson had told the writer that she found it difficult to answer questions inrelation to her son "in situations where she is under pressure to recall specific detailsthat she would not usually remember, and in situations where she feels verballyattacked." Ms Henderson reported when she felt stressed, she may become:110unresponsive and not attempt to express herself or answer questions. If sheis upset, she may speak loudly and have difficulty controlling the volume ofher voice.[129] Other than the specific situations above, the report noted Ms Henderson"experiences little or no difficulty communicating" and that she has a degree in109 Notes of evidence of hearing, 28 February 2023, at 55 line 10.110 Communications Assistance Report, above n 22, at [4.4].accounting and has worked as an accountant and in childcare. The report noted thatMs Henderson's counsel described her as "highly intelligent". The report made somegeneral recommendations, such as regular breaks and people speaking slower and notinterrupting. The communications assistant's recommendations are not designed to beapplied when Ms Henderson is the cross-examiner. In addition, the passages ofevidence to which Ms Henderson refers demonstrate she was able to indicate whenshe was confused by a question. They show no unfairness by the questioner.[130] A perusal of the transcript of the February 2023 hearing indicates thatMs Henderson was able to answer the question she was asked, and if she needed abreak, she asked for one. The transcript does not indicate that the Judge wasoverbearing, or the hearing was conducted unfairly.[131] Ms Henderson also says she was prevented by the Judge at the February 2023hearing from questioning Mr Trainor about his qualifications to recommend schematherapy. However, Ms Famalie had cross examined Mr Trainor on this aspect of hisevidence at the hearing in September 2022. The Judge was entitled to take that intoaccount and made no error in preventing further questioning on that aspect byMs Henderson at the later hearing.[132] Predetermination involves a "closed mind" on the part of the decision-maker,who is not willing to change their mind or is not open to persuasion.111 It is apparentthat the Judge engaged with the evidence and did not "simply [go] through the motionsof making a decision."112[133] A claim by Ms Henderson that she did not have her discovery application heardin the Family Court adds nothing to the claims of predetermination. That is aprocedural matter which could have been pursued in that Court. In relation toMs Henderson's complaint that an amicus curiae was not appointed, that was a matterfor the Judge. There is no reference to such an issue being raised, but a Judge wouldbe unlikely to require the appointment of a counsel to assist the Court (an amicuscuriae) in a case such as the present.111 Rongotai Investments Ltd v Land Valuation Tribunal, above n 108.112 Financial Services Complaints Ltd v Chief Ombudsman [2021] NZHC 307 at [73]–[74].[134] There is nothing in the material before this Court to indicate that the Judge waseither predetermined or biased.Ineffective assistance of counsel/consent issues[135] Ms Henderson said she felt under pressure to consent to a s 102 order beingmade in February 2022 and that she had never agreed that there were care andprotection issues other than because of Ryan's behaviour. She blames her previouscounsel for misleading her by telling her that Ryan would be returned to her care inAugust 2022 if she signed the agreement for a s 102 order in February 2022.[136] At the appeal hearing, Ms Henderson expressed uncertainty as to whether shehad in fact signed the consent to the making of the s 102 custody order in favour ofOranga Tamariki. In the course of the hearing the Registrar located a memorandumof consent on the Family Court file dated 15 February 2022 signed by bothMs Henderson personally as mother of Ryan and by Ms Henderson's then counsel,Ms Faimalie.[137] This memorandum asked the Court to make the s 102 custody order on thegrounds that Ryan was a young person in need of care and protection on the groundsset out in ss 14(1)(a), 14(1)(b) and 14AA of the Oranga Tamariki Act. In addition, theconsent memorandum sought the making of a s 110AA interim guardianship order infavour of the Chief Executive. The consent memorandum went on to note that a s 128plan was attached to the consent memorandum and there was to be a case managementreview at three-monthly intervals. The purpose of the plan and review was to considerwhether the implementation of the s 128 plan and that the therapeutic plan had beenprogressed. The consent memorandum also noted that a s 178 psychologist reportwould be sought for Ryan which would take into account the psychological report ofMr Trainor dated 1 February 2022 to assess the genesis of Ryan's "concerningbehaviour" and assess his emotional and psychological needs as well as his attachmentto Mr L and Ms T and recommendations as to those future relationships andrecommendation as to therapeutic interventions or supports to address Ryan'sbehaviour. The consent memorandum went on to say:9. An Order pursuant to section 74 of Oranga Tamariki Act 1989 will besought to enable schema therapy for Ms Henderson once a therapistis identified.10. To ensure the recommendations in the report of Mr Trainor dated01 February 2022 are implemented Counsel seek a direction theaffidavit of Mr Trainor dated 01 February 2022 is released to theschema therapist working alongside Ms Henderson and thesection 178 report writer.[138] It is apparent that Ms Henderson did personally consent to the interim custodyand additional guardianship orders in favour of Oranga Tamariki.[139] The memorandum also records Ms Henderson's consent was based on the factthat Ryan was in need of care and protection and that she was unable to provide thatcare.[140] This consent memorandum was filed and the relevant orders made some12 months after Ms Henderson had, in February 2021, signed a s 140 agreement inwhich she, with the agreement of the Chief Executive of Oranga Tamariki, placedRyan in Oranga Tamariki's care. Ms Henderson says she was also pressured into thisand was merely seeking respite care for Ryan, not full-time care. This ignores the factthat she could have withdrawn her agreement at any stage until the making of the s 102order in February 2022. She did not.[141] Ms Henderson's lawyer has not been given any opportunity to respond to theallegations that Ms Henderson now makes. In addition, I can see no proper basis forthe allegations113 against her lawyer. They are inconsistent with the material beforethe Court that Ms Henderson personally consented to the custodial arrangements infavour of Oranga Tamariki at various times.[142] The grounds of appeal under this heading fail.113 Ms Henderson sought leave to adduce various items of correspondence with her lawyer. Thatevidence was not admitted. It was piecemeal, out of context and had not been put toMs Henderson's lawyer for comment.Adequacy of evidence/testing the evidence[143] I have earlier referred to the evidence before the Judge and the fact that it wastested by cross-examination, both by Ms Henderson's lawyer at the September 2022hearing and by Ms Henderson personally cross-examining Mr Fry and Mr Cotton atthe February 2023 hearing. Ms Henderson gave her evidence and was cross examined.The February 2023 hearing needed to be focused on the issues in relation to care andprotection. Issues such as whether or not Ms Henderson had consented to the s 140agreement in 2021 were peripheral matters and not directly relevant to the then currentcare and protection issues which were being addressed by the Court in February 2023.There was a limited amount of time for hearing. The Judge was entitled to managethe hearing to ensure the relevant issues were focused on.[144] It would not have been in the interests of Ryan if the hearing had been put offto a future date to accommodate the calling of further evidence. The Judge made noerror in focusing on updating the position by obtaining an updated psychologicalreport on progress from Mr Fry. Mr Fry's evidence and the updating evidence fromMr Cotton were sufficient to put the relevant updated issues before the Court as theJudge had already heard evidence in the September 2022 hearing. He was not requiredto commence the hearing from scratch. Ms Henderson had earlier agreed to a s102interim custody order in favour of Oranga Tamariki. Ms Henderson had concededthere were grounds for that order and done so with legal advice. The Judge wasentitled to take that into account when directing how the balance of the hearing wouldproceed in the time available. The Judge was also entitled to take into account thebackground, which was largely recorded in Court documents and reports.[145] The grounds under this heading fail.Process issues[146] In October 2022, Oranga Tamariki made an application for a s 101 custodyorder in favour of the Chief Executive and that the Chief Executive be appointed anadditional guardian of Ryan. In January 2023 it made a further application describedas a "pro forma" application to ensure that there was no difficulty in completing thehearing in relation to the earlier application. Judge Moss reviewed the position andconcluded that the matter was part-heard in September 2022 and that hearing shouldbe completed. That was a decision available to the Court and it made no error inadopting that course. The pro forma application was therefore rendered otiose. Inview of the circumstances, the filing of the application was not an abuse of process.There could have been no prejudice caused to Ms Henderson by the delay in therecommencement of the hearing, as she had agreed to the interim orders under s 102at the September 2022 hearing and to the resulting adjournment of the matter partheard.[147] Ms Henderson also makes reference in her appeal grounds to s 204 of theOranga Tamariki Act, which relates to rehearing. This appears to have no applicationhere as no rehearing has been directed.[148] The points raised under this heading of appeal fail.Oranga Tamariki's position[149] The points raised under this head are matters of detail in relation to theinteraction between Oranga Tamariki and Ms Henderson. The evidence suggests therehas been a substantial amount of support for Ms Henderson and that support continuesin an attempt to realise the objectives in the s 128 plan in order that Ms Henderson isin a position to take back the care of Ryan.[150] The points under this heading of appeal fail.Conclusion[151] I have concluded that all grounds of appeal fail. Therefore, the appeal isdismissed.[152] Any application for costs should be made by way of memorandum filed withinfive days of the date of this judgment. Any response is to be filed within a furtherthree days.____________________Grice JSolicitors:Kate Sheppard Chambers, Wellington.Crown Law Office, Wellington.McKenna Law Limited, Palmerston North.