PORTER v CHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT CA829/2013 [2014] NZCA 157

PORTER v CHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT CA829/2013 [2014] NZCA 157 [29 April 2014]NOTE: PURSUANT TO S 437A OF THE CHILDREN, YOUNG PERSONS,AND THEIR FAMILIES ACT 1989, ANY REPORT OF THIS PROCEEDINGMUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT1980. FOR FURTHER INFORMATION, PLEASE SEEHTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY-COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONSIN THE COURT OF APPEAL OF NEW ZEALANDCA829/2013[2014] NZCA 157BETWEEN MS PORTERApplicantAND CHIEF EXECUTIVE, MINISTRY OFSOCIAL DEVELOPMENTRespondentCourt: Stevens, White and French JJCounsel: Applicant in personC A Griffin and M Clark for RespondentJudgment:(On the papers)29 April 2014 at 10.00 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B There is no order for costs.C This judgment may be cited as Porter v Chief Executive, Ministry of Social Development [2014] NZCA 157.____________________________________________________________________REASONS OF THE COURT(Given by White J)[1] The applicant, "Ms Porter",1 seeks leave to appeal to this Court against the High Court judgment dismissing her appeal against the Family Court decision declaring that her then seven year old daughter was a child in need of care and protection.2 The parties agree that the application should be determined on the papers without the need for a formal hearing.[2] In the Family Court Judge Ullrich QC was satisfied in terms of the relevant provisions of the Children, Young Persons, and Their Families Act 1989 (the Act) that, having regard to the welfare and best interests of the child, the declaration that the child was in need of care and protection was necessary.3 Judge Ullrich reached this conclusion on the basis of the evidence before her, including evidence from Ms Porter, and following submissions made for the Chief Executive of the Ministry of Social Development, Ms Porter and counsel appointed to represent the child.[3] The Judge was satisfied that the child was being emotionally harmed while living with her mother and would be likely to be similarly harmed if returned to herand that Ms Porter's unsubstantiated allegations (that her child had been physicallyand probably sexually abused while at school) and investigations amounted to ill-treatment of the child.4 The Judge was also satisfied that the child's developmentand mental and emotional wellbeing was likely to be impaired or neglected while in the care of her mother and that impairment or neglect was likely to be serious and avoidable.5[4] In the event that the declarations were made, the Chief Executive had proposed a plan whereby there would be a custody order in favour of the Chief Executive and an order appointing the Chief Executive as an additional guardian,1 We anonymise her name as occurred in the High Court: Porter v Chief Executive, Ministry of Social Development [2013] NZHC 2666 at [2].2 Re Janice [2013] NZFC 4009 ("Janice" is also an anonymised name) and Porter v Chief Executive, Ministry of Social Development, above n 1.3 Re Janice, above n 2, at [53].4 At [51].5 At [52].with a six month review.6 To give Ms Porter an opportunity to consider the plan, Judge Ullrich adjourned the matter.7[5] Although Ms Porter then appealed to the High Court against Judge Ullrich'sdecision, Judge Ellis, after hearing from counsel for the parties, made orders implementing the plan before the appeal was heard and determined.8 Judge Ellis was satisfied that, notwithstanding the appeal, it was in the best interests of the child that the plan be accepted.9[6] Ms Porter filed detailed submissions in support of her appeal to the High Court, but did not appear either by counsel or in person at the hearing of her appeal. Counsel for the Chief Executive and the child did appear and presented submissions supporting the Family Court decision.[7] The High Court judgment, delivered by Kós J, outlines the relevant background to the case, summarises Ms Porter's submissions, refers to the approachon appeal and then dismisses the appeal for four reasons:10(a) There was relatively little factual conflict over what Ms Porter had actually done in the course of her care of the child. There was no suggestion of physical abuse by Ms Porter. She is a loving and caring mother.(b) The evidence demonstrated clearly that Ms Porter had developed an irrational apprehension of risk faced by her daughter.(c) The evidence supported Judge Ullrich's findings as to the harmful effect Ms Porter's actions had on the child's wellbeing and hereducational and social development.6 At [55]. A plan under ss 129 and 130 of the Children, Young Persons, and Their Families Act 1989 was proposed.7 At [56].8 Chief Executive of the Ministry of Social Development v [Porter] [2013] NZFC 7043.9 At [6]–[7].10 Porter v Chief Executive, Ministry of Social Development, above n 1, at [34]–[47].(d) As counsel for the child submitted, the child's interests were best metby the Family Court orders.[8] Under the heading "Looking ahead" Kós J said:[50] Looking ahead, everyone recognises that with certain changes in behaviour, Ms Porter would again be entirely fit to resume primary care for [the child]. That must be the end objective. But the clock is ticking. [The child] will become settled in a new stable home.[51] Pursuing this appeal (which I have found to lack merit) was a step in the wrong direction.[52] What is really needed is for Ms Porter to:(a) recognise the possibility that she just might be wrong about the risks her daughter has faced, and the "harm" she has experienced;(b) recognise the possibility that she might be wrong about the effect her own actions have had on her daughter;(c) perhaps take the option of submitting to a psychological examination under s 178. That is a matter for Ms Porter, of course, but to do so would be constructive in confirming that (a) and (b) have occurred, and it will assist in either displacing a perception by others, or in confirming that perception, making possible a course of treatment or counselling (or both);(d) engage with the social worker assigned to the matter in advance of the s 135 plan review that is to occur in December. A coherent access plan for [the child] and Ms Porter should be capable of being resolved if there is fruitful engagement between Ms Porter and the Ministry; and(e) then make submissions to the Family Court on that plan.[53] I hope that Ms Porter will now find it in herself to adopt these suggestions. They seem to be the only way in which the common objective of a reunited family unit can be achieved.[9] Instead of taking up Kós J's suggestions, however, Ms Porter has applied tothis Court for leave to appeal against his decision. It is necessary for her to seek leave to appeal under s 347(1) of the Act because there is no right of appeal to this Court in a case of this kind.[10] The principles this Court applies when considering applications for leave to appeal of this nature are well-established.11 For leave to be granted, the appeal must raise some question of fact or law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the Court system and to the parties, and the delay involved in the further appeal.[11] We have no difficulty in accepting that the question of what custody and guardianship arrangements are in the best interests of the child is of considerable importance to the child and Ms Porter. But that is not of itself a sufficient reason for granting leave to appeal. A second appeal must involve more than a repetition of the arguments raised in the Courts below.[12] The problem for Ms Porter is that her application for leave to appeal does not identify any question of fact or law capable of bona fide and serious argument. As far as the facts are concerned, there are now concurrent findings in the Family Court and the High Court, clearly based on the relevant evidence before the Family Court. In both Courts these findings followed a correct statement of the applicable law.[13] We see no realistic basis for questioning either the Family Court's factual findings or the High Court's review of the evidence supporting those findings. This means that there is also no realistic basis for questioning the High Court's conclusion that the child's best interests were served by the Family Court orders.[14] As far as the law is concerned, no question of law that meets the criteria for a second appeal has been identified by Ms Porter. We are satisfied that the Judges in the Courts below correctly interpreted the relevant statutory provisions and correctly applied them to the facts of this case. We are also satisfied that in the High Court Kós J followed the correct approach to the determination of the appeal before him.[15] We also agree with counsel for the Chief Executive that a second appeal to this Court is not in the best interests of the child. She is now well-settled with other11 Waller v Hider [1998] 1 NZLR 412 (CA) and Snee v Snee (1999) 13 PRNZ 609 (CA).members of her family and her best interests are served by the regular review mechanisms available in the Family Court.[16] Accordingly, for these reasons, the application for leave to appeal is declined. As there was no application for costs, no order is made.[17] We note in conclusion that the recommendations of Kós J at [52] of his judgment have much to recommend them. It remains open to Ms Porter to consider taking the steps referred to by Kós J in his judgment and engage in the next review of the plan, which we understand is scheduled for December 2014. Moreover, in the event of a change of circumstances, including engagement with the Ministry and treatment or counselling courses, it may also be open to Ms Porter to apply for a discharge or variation of the orders in the Family Court.[18] This judgment may be cited as Porter v Chief Executive, Ministry of Social Development [2014] NZCA 157.Solicitors:Crown Law Office, Wellington for Respondent