MORGAN v CHIEF EXECUTIVE OF THE MINISTRY FOR CHILDREN, ORANGA TAMARIKI [2018] NZCA 592

MORGAN v CHIEF EXECUTIVE OF THE MINISTRY FOR CHILDREN, ORANGA TAMARIKI[2018] NZCA 592 [14 December 2018]THIS JUDGMENT CONTAINS FICTITIOUS NAMES AND MAY ONLY BEREPORTED IN THIS FORM.NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004 ANDS 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THISPROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMLYCOURTS ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA406/2018[2018] NZCA 592BETWEEN ROBERT MORGANApplicantAND CHIEF EXECUTIVE OF THE MINISTRYFOR CHILDREN, ORANGA TAMARIKIFirst RespondentLEAH YARDLEYSecond RespondentCourt: Brown and Clifford JJCounsel: A R H Laurenson for ApplicantJ K Gorman and L V MacKay for First RespondentNo appearance for Second RespondentJudgment:(On the papers)14 December 2018 at 12.00 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B This judgment contains fictitious names and may only be reported in thisform.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Jane is a four-year-old girl whose parents, the applicant (Mr Morgan) and thesecond respondent (Ms Yardley), are separated.1 Following the preparation of a planpursuant to s 128 of the Oranga Tamariki Act 1989 (the Act), in a decision dated10 August 2017, Judge L C Harrison in the Family Court at New Plymouth madea custody order in favour of the first respondent, the Chief Executive of the Ministryfor Children, Oranga Tamariki (the Chief Executive) under s 101 of the Act. Accessorders under s 121 of the Act were also made in favour of Jane's parents.2 An appealby the applicant was dismissed in a judgment of Clark J on 21 June 2018.3[2] The applicant now applies under s 347 of the Act for the leave of this Court toappeal against the High Court's judgment. His application advanced the followinggrounds:1. That the decision to confirm the position of Oranga Tamariki as itrelates to the placement of the child and the goal of the plan undersection 128 of [the Act], and the reasons behind that decision areplainly wrong.2. It is in the public interest to set the decision aside as it may setan unrealistic and/or impossible threshold for parents who enter intoplans with the Ministry for Children, Oranga Tamariki.The relief the applicant sought included a rehearing of the principal questions thatwere before the Family Court and the High Court when they made their decisions.He requested that the Court quash the existing orders and make a new order directingthe Chief Executive to enter into a s 128 plan with a continued goal of a return of Janeto the applicant.1 In order to protect the identities of the parties and the child the subject of these proceedings wehave adopted fictitious names.2 Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki v [Morgan][2017] NZFC 5994.3 [Morgan] v Chief Executive of the Ministry for Children, Oranga Tamariki [2018] NZHC 1487.[3] Mr Laurenson's submissions in support of the application appropriatelyfocused more closely on points of law said to be relevant to the application for leave,namely:9.1 The application of section 6 of [the Act]. It is submitted thatconsideration of this question has wider application to relatedlegislation for example the welfare and best interests considerationsrequired in sections 4 and 5 of the Care of Children Act 2004.9.2 The application of article 9 of the United Nations Conventions onthe Rights of the Child.[4]9.3 The appropriate tests be applied in consideration of the aboveprinciples when the Courts are assessing the rights of the child incircumstances where a parent or parents are seeking a return ofthe child to their care.[4] The intended scope of the proposed appeal was revisited in Mr Laurenson'ssubmissions in reply in which he identified further important questions said to beraised by the proposed appeal:11.1 What is the application of Article 9 of the United Nations Conventionon the Rights of a Child to the relevant legislation?11.2 What are the obligations of the State when the parties agree to enterinto a plan under section 128 of [the Act]?11.3 When is it appropriate for the State to abandon a goal of a return ofthe child to his or her parents when the parties do not agree to do so.Background[5] Even before Jane's birth the Children and Young Persons and Their FamiliesService, as it then was, was concerned that she was at risk, given her parents' drug use,violent relationship and past child neglect. The following factual summary is takenfrom the Chief Executive's submissions:10. With the agreement of her parents, a declaration was made on27 August 2014 that [Jane] was a child in need of care and protection.A review meeting was held on 12 January 2015, where [Jane'sparents] were warned that if their living situation did not improve thenOranga Tamariki would apply for custody of [Jane] to secure hersafety. In January 2015 [Jane] was placed in the care of her [paternal]grandparents who continue to be her current caregivers.4 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989,entered into force 2 September 1990).11. A Family Group Conference was held on 24 March 2015, wherea s 128 plan was agreed upon (s 128 plan). The s 128 plan wasreviewed in September 2015. The primary goal of the s 128 plan wasfor [Jane] to be returned to the care of her parents. To this end,the applicant was required to fulfil a number of conditions todemonstrate he had the necessary skills to parent [Jane], and a periodof increased contact between the applicant and [Jane] would betrialled. The s 128 plan set out the ways in which the primary goalwould be seen to be achieved. Specifically, both [Jane's] caregiversand child care provider were to report she remained "settled andhappy" and the child care provider was also required to report [Jane]had not displayed any concerning reactions to the extended contact.If these outcomes were not achieved, the concurrent goal was for[Jane] to be raised in a home for life placement with her grandparents.12. [Jane's] reaction to the increased contact arrangement was dramaticand concerning. She reverted to a former hypervigilance, her appetitedecreased, and she was waking and vomiting during the night.She was also biting and pulling the hair of other children at daycareand biting herself to the point of drawing blood.13. On 2 November 2015 the applicant was advised that, due to [Jane's]reaction to the trial period, a return of [Jane] to [the applicant's] carewas no longer considered the primary goal of the s 128 plan.Instead, the concurrent goal of the home for life placement with[Jane's] grandparents would become the primary goal. To this end, as 78 custody order was made on 26 February 2016 in favour ofthe Chief Executive.(Footnotes omitted.)[6] The custody orders made by Judge Harrison on 10 August 2017 in favour ofthe Chief Executive had the effect that Jane continued to live with her grandparents.The applicant's case[7] Mr Laurenson's submissions first focused on [53]–[59] of the High Courtjudgment, in particular contending that at [57] Clark J endorsed Judge Harrison'serroneous view that there is no presumption in favour of a parent. Whether or not sucha presumption exists was said to be a question of principle to be considered onthe proposed appeal.[8] Secondly, Mr Laurenson explained that the applicant seeks clarification ofthe law as it relates to the consideration of the rights of children and their welfare andbest interests in circumstances where they are in the care of the state or in the care ofa non-parent and where the parent or parents seek their return. He contended thatthe question to be tried on appeal is whether the correct approach is to assess the parentor parents' ability to care for their children alone as opposed to making a comparisonwith the ability of the existing caregivers, which he claimed was the approach takenby the lower courts in this case.[9] Thirdly, Mr Laurenson submitted that the reasoning of the Family Court andthe High Court in this matter brought into question the overall regime involving plansunder s 128 of the Act and the actual ability of parents to achieve the goal of return oftheir child or children. He indicated that the applicant would be inviting this Court onappeal to consider the overall justice of this case and the obligations upon the Statewhen parties agree to a plan under s 128.The Chief Executive's submissions[10] For the Chief Executive it was submitted that the Judge correctly identified andapplied the legal test, that when making decisions under pt 2 of the Act the first andparamount consideration is the child's welfare and interests as mandated by s 6.The Judge carefully considered ss 5, 6 and 13 and concluded that Jane's welfare andinterests were best served by confirming the custody and guardianship orders whichmaintained her current care arrangements. Neither of those orders had the effect ofpermanently removing Jane from the applicant's care.[11] The Chief Executive rejected the contention that the Judge erred in herassessment of art 9 of the United Nations Convention on the Rights of the Child andits application. In fact the Judge had accepted that a presumption exists under art 9(and s 13 of the Act) and took the presumption into account when assessing the welfareand best interests of Jane. However the Judge appropriately determined that, althoughideally this presumption will co-exist with the child's welfare and interests, in this casewhere there is conflict, the child's welfare and interests prevail.[12] Nor did the Judge set a "threshold" where a parent's ability to care for the childmust be superior to that of the existing caregivers in order for the child to be returnedto the parents' care. Rather, in determining what outcome was in the welfare andinterests of Jane, each care arrangement was relevant evidence that the Court wasrequired to take into account in combination with all other available and relevantevidence.[13] Nor was there error in the Judge's approach to the s 128 plan. The Judgecorrectly held that the aspiration expressed in the plan to return Jane to the care ofthe applicant could not be implemented if it conflicted with the welfare and bestinterests of Jane.[14] As both the Family Court and High Court Judges had held, so too it wasthe Chief Executive's submission that the welfare and interests of Jane are best servedby her current care arrangements which are maintained by the custody andguardianship orders upheld by the High Court.Discussion[15] The principles governing applications for leave under s 347 were stated inPorter v Chief Executive, Ministry of Social Development:5For leave to be granted, the appeal must raise some question of fact or lawcapable of bona fide and serious argument in a case involving some interest,public or private, of sufficient importance to outweigh the cost, both tothe Court system and to the parties, and the delay involved in the furtherappeal.[16] The primary function of this Court on a second appeal is to clarify the law andto determine whether it has been properly construed and applied by the court below:not the general correction of factual error. Not every alleged error of law will be ofsuch importance to justify further litigation of a matter that has already beenconsidered twice on the merits and ruled upon by a Court. A second appeal mustinvolve more than a repetition of the arguments raised in the courts below.6[17] We consider that the applicant's first proposed question concerningthe existence of a presumption in favour of a parent does not arise for consideration5 Porter v Chief Executive, Ministry of Social Development [2014] NZCA 157 at [10].6 At [11].because the Judge made no such general finding of the nature suggested.On the contrary the Judge stated:7[57] Accordingly, Judge Harrison was correct to observe [Jane's] interestsand welfare could not be subordinated to the presumption a parent ought to beresponsible for the care of her or his child. Ideally, that presumption willco-exist with the child's interests and welfare. But where the presumption ofparental care and the child's interests do not co-exist, the child's welfare andinterests prevail.[18] So far as concerns Mr Laurenson's contention that the Judge affirmedan approach whereby it is appropriate to compare Jane's current care arrangementswith the care options that may be provided by the applicant, again the submissionoverstates the Court's finding:[58] I do not accept that Judge Harrison inappropriately consideredwhether the current care arrangements are in [Jane's] best interests. [Jane's]current care is relevant to an assessment of whether her welfare and interestsare served by changing her present custodial arrangements. [Jane's] welfareis not to be measured by the parents' endeavours alone. The question forthe Judge's assessment was: taking into account all relevant evidence, whatcare structure is in [Jane's] welfare and interests?[19] Nor do we consider that there was any error in the Judge's approach tothe s 128 plan. The Judge correctly held that the aspiration expressed in the plan toreturn Jane to the applicant's care could not be implemented if it conflicted withthe welfare and best interests of Jane. We accept that what prevented the initialprimary goal under the s 128 plan from being implemented was the negative effectthat this would have on Jane's welfare and interests. The point is fairly made bythe Chief Executive that the unrealistic or impossible threshold that the applicantclaims to have been set by the High Court is simply that of the welfare and interestsof the child.[20] The appeal to the High Court which was by way of general rehearing requiredthe High Court to reach its own view on both fact and law. In undertaking that exercisethe High Court came to the same legal conclusions as the Family Court. Those Courtsapplied the correct statutory approach in concluding that Jane's welfare and interestswere best served by maintaining her current care arrangements. It is apparent that7 [Morgan] v Chief Executive of the Ministry for Children, Oranga Tamariki, above n 3.the present application simply proposes to advance a repetition of the arguments in theCourts below. No clarification of the law is shown to be necessary.[21] Finally we endorse the Chief Executive's submission that a further appeal tothis Court is not in the welfare or interests of Jane. She is apparently well-settled withher grandparents. Her welfare and interests are best served by maintaining that currentcare arrangement with her parents continuing to have prescribed access to her.The ongoing uncertainty and other negative impacts caused by a second appeal wouldbe detrimental to her welfare and interests.Result[22] The application for leave to appeal is declined.[23] To protect the identity of the parties and the child the subject of theseproceedings, this judgment contains fictitious names and may only be reported in thisform.Solicitors:Govett Quilliam, New Plymouth for ApplicantCrown Law Office, Wellington for First Respondent