SLB v MINISTRY FOR CHILDREN, ORANGA TAMARIKI [2020] NZHC 1129

SLB v MINISTRY FOR CHILDREN, ORANGA TAMARIKI [2020] NZHC 1129 [26 May 2020]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 ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-002712[2020] NZHC 1129BETWEEN SLBAppellantAND MINISTRY FOR CHILDREN, ORANGATAMARIKIRespondentHearing: 13 May 2020Appearances: C Muston for AppellantR Bowe for RespondentD Amodeo and S Berkman as counsel for the ChildJudgment: 26 May 2020JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 26 May 2020 at 4.30 pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:C Muston, Whangarei,Oranga Tamariki Legal Services, WellingtonD Amodeo, AucklandIntroduction[1] The appellant, SLB, appeals a decision given by Judge Rogers in the FamilyCourt at Manukau on 18 November 2019 declaring that SLB's daughter, S, is a childin need of care and protection pursuant to s 14(1)(a) and (b) of the Oranga TamarikiAct 1989 (the Act).1[2] SLB seeks that the declaration should be set aside so that S can be returned toher care.[3] The respondent, the Chief Executive of Oranga Tamariki – Ministry forChildren (the Chief Executive) supports Judge Roger's decision and opposes theappeal.Background[4] S was born to SLB in Whangārei on 19 October 2015. S's father and SLB areno longer in a relationship, and S's father has taken no part in these proceedings.[5] Prior to S's birth, SLB's midwife expressed concern about S's safety onceborn. The midwife had only just taken over the care of SLB (because SLB had refusedto engage with a previous midwife) but she quickly became concerned about SLB'scapacity to parent.2[6] On 19 October 2015, a whānau hui was held with SLB, her mother, socialworkers and others, and the midwife. A safety plan was set up to support SLB inparenting S, with 24/7 supervision and with the involvement of support services.[7] On 23 October 2015, a meeting was held at the Whangārei Base HospitalMaternity Ward between SLB, her mother and the hospital social worker to discussongoing concerns about SLB and the wellbeing and safety of S.31 Chief Executive of Oranga Tamariki – Ministry for Children v SLB [2019] NZFC 9468.2 See below at [51].3 See below at [52].[8] SLB and S were discharged from hospital and it seems that the transition fromhospital to home went smoothly. SLB's mother moved to Whangārei to assist and she,SLB and S moved into the same property. SLB agreed to undertake a maternal mentalhealth assessment in order to get the appropriate support.[9] Shortly thereafter, S developed an eye infection. SLB refused to accept thetailored advice given to her and relied instead on generic sources, such as the PlunketHelpline, and online research, to inform her decision-making.[10] On 26 November 2015, another whānau hui was held.[11] On 29 December 2015, the Chief Executive received a confidential report froma family member who was concerned about matters.4 SLB was then referred toNorthland Community Mental Health and Addiction Services. She was assessed inJanuary 2016 by a counsellor, Ms Airini Mataara. Ms Mataara expressed concernabout S's safety.5[12] On 12 May 2016, a psychologist, Ms Tina Besson, prepared a report on SLB.In short, she considered that it was probable that S's emotional and psychologicaldevelopment would be compromised over time due to SLB's below average cognitivefunctioning.6[13] A family group conference was held in June 2016. No agreements could bereached. The conference was reconvened in July 2016, but again no agreements werereached.[14] In August 2016, a family whānau agreement was entered into. It was agreedthat S would be placed into the care of maternal family members, a Mr and Mrs D. Asa result, S began living with Mr and Mrs D on 15 October 2016, just before she turnedone year old. She remained in their care and they filed applications for parentingorders under the Care of Children Act 2004. However, on 11 October 2017, Mr andMrs D advised the Chief Executive that they were no longer willing to care for S,4 See below at [54].5 See below at [55].6 See below at [56]-[57].because of what they considered was SLB's constant harassment. They advised thattheir care of S would have to conclude as from 15 January 2018.[15] As a result, on 9 January 2018, the Chief Executive applied for a declarationthat S was in need of care and protection on the grounds set out in s 14(1)(a) and (b)of the Act as it then stood.7 At the same time, the Chief Executive also applied withoutnotice for a custody order in respect of S under s 78 of the Act pending determinationof the declaration application. The applications were accompanied by extensiveaffidavit evidence.[16] An interim custody order was made under s 78 on 10 January 2018 by JudgeLindsay. She issued a minute in the following terms:8There is a pattern of maternal neglectful care of [S] which may cause the childhardship or psychological harm. There were concerns as to mother'sunderstanding and ability to meet [S's] care which led to her placement withthe [Ds]. Those concerns remain. Since [S] has been placed in the care of[Ds] mother's persistent and unwanted contact with them has undermined theplacement. It is evident from the social worker's affidavit evidence alternativemeans of resolving [S's] care have been exhausted and an interim custodyorder is necessary.[17] After she left Mr and Mrs D's care, S was initially placed with non-kincaregivers near Auckland. Since 22 June 2018, she has been living in the Wellingtonregion with family members, namely SLB's cousin and her partner.[18] There have since been a number of reports and assessments undertaken, bothof SLB and S. I discuss this material shortly.9[19] SLB opposed the Chief Executive's application for a declaration. She gavenotice of her intention to appear and she filed affidavits in support and in reply to theaffidavits filed by the Chief Executive. She disputed many matters asserted by theChief Executive, but accepted the Chief Executive's position on some issues.However, when the declaration application came to a hearing, SLB was firmlyopposed to any order being made.7 Section 14 was amended, as from 1 July 2019 – Children, Young Persons and Their Families(Oranga Tamariki) Legislation Act 2017, s 17.8 Minute dated 10/1/18 – FAM-2019-057-000005.9 See below at [59]-[68].[20] The matter was heard over two days in May and September 2019. JudgeRogers issued her judgment on 18 November 2019.Family Court decision[21] Judge Rogers started by outlining the background to the matter, much as setout above. She noted that S's removal from her placement with Mr and Mrs D hadbeen extremely difficult for her, referring both to a social worker's report in this regardand to a Gateway Assessment, which noted that S was displaying signs ofinappropriate attachment and anxiety as a result of the removal. The Judge also notedthat since S has been placed with SLB's cousin and her partner, there have beenimprovements in her assessments. It was noted however that this care arrangementwas coming under pressure, because of SLB's manner and the frequency of herinteraction with the caregivers. The Judge nevertheless noted that SLB, in one of heraffidavits filed in support of her notice of intention to appear, recorded that, while shedid not agree with the caregivers' positions in some respects, she did not want to seeS's care disrupted. The Judge also recorded that SLB in her evidence at the hearingacknowledged that she did not think it likely that S would be coming back to her carefor some time, that S has complex long-term needs and that support and assistancewill be required to deal with those needs. The Judge noted that SLB is howeverconfident that she can parent S with support networks in place.[22] The Judge recorded her view that these acknowledgements were inconsistentwith SLB's opposition to the making of the declaration, because the absence of adeclaration "would remove access to any support from Oranga Tamariki", and SLBwould become responsible for organising the support network herself.10[23] The Judge recorded that it was her obligation to make a fact specific decisionin relation to S. She also referred to s 73(1) of the Act, which precludes the Courtfrom making a declaration unless it is satisfied that it is not practicable or appropriateto provide care and protection for a child by any other means. She noted that SLB hadnot proposed any alternative arrangements or care plan, nor advanced any otherproposal for S's care. Rather, SLB was simply seeking removal of S from her current10 Chief Executive of Oranga Tamariki – Ministry for Children v SLB, above n 1, at [18].caregivers, and S's return to her. To this end, SLB was arguing that the ChiefExecutive had failed to establish on the balance of probabilities that she lacked thecapacity to understand and therefore promote S's welfare.[24] The Judge acknowledged that SLB has undertaken parenting courses, but sheconsidered that what is still lacking is any evidence of an ability to apply what she haslearnt. The Judge accepted that, in part, this is because SLB has not had theopportunity to demonstrate her parenting abilities, and she accepted that it is importantnot to assume a deficit in ability simply because of the lack of opportunity. The Judgenoted however evidence to the effect that SLB faces personal challenges that impacton her ability to care for any child, let alone a child with identified special needs whohas not been in SLB's care since she was one year old. The Judge noted SLB'sargument that there is no evidence that S suffered harm at her hands before the familyagreement entered into in August 2018. She did not accept this argument, recordingthat there is extensive evidence of concerns on the part of professionals and familymembers as to SLB's parenting capacities at the time; indeed, the Judge consideredthat the fact that S left SLB's care was a direct consequence of those concerns. TheJudge did not accept that the decision to place S with Mr and Mrs D was made in theabsence of any issues as to SLB's parenting abilities.[25] The Judge accepted the paediatric assessments that S's care history has beenemotionally harmful to her, and that her emotional wellbeing has been impaired. TheJudge also held that there is no evidence to show that a return to SLB's care would notagain be destabilising. She expressed the view that S has already been harmed andthat she cannot be the subject of any trial or experimentation. The Judge noted thatthere is no evidence sufficient to satisfy her that SLB is capable of ensuring the stable,secure, sensitive and long-term care that S requires. She noted that even though SLBis optimistic as to her parenting abilities, SLB acknowledges her need for help andsupport.[26] In summary, the Judge was satisfied that, at the time the application for adeclaration was filed, S was in need of care and protection under both s 14(1)(a) and(b). Concerns as to SLB's parenting abilities have not been reduced by the informationthat has since come to hand. While SLB's case was advanced on the basis that thedeclaration should be declined and that S should be returned to her, there was no planto manage that transition and there were no formal or family supports in place foreither SLB or S. The Judge considered that to return S to her mother's care "withoutfurther ado" would present a high risk of further emotional harm to S and impair herdevelopment. Accordingly, she granted the application for declaration. She alsodirected the Chief Executive to file an updated social worker's report and plan within28 days.The appeal[27] The appeal is brought pursuant to s 341(1) of the Act. Pursuant to s 346, theHigh Court Rules 2016 and ss 126 to 129 of the District Courts Act 2016 apply to theappeal.[28] Pursuant to r 20.18 of the High Court Rules and s 127 of the District CourtsAct, the appeal is by way of rehearing, and it was common ground that the approachmandated for general appeals by the Supreme Court in Austin, Nichols & Co Inc vStichting Lodestar applied.11 As the Chief Justice there noted:[16] Those exercising general rights of appeal are entitled to judgment inaccordance with the opinion of the appellate court, even where thatopinion is an assessment of fact and degree and entails a valuejudgment. If the appellate court's opinion is different from theconclusion of the tribunal appealed from, then the decision underappeal is wrong in the only sense that matters, even if it was aconclusion on which minds might reasonably differ.29 In suchcircumstances it is an error for the High Court to defer to the lowerCourt's assessment of the acceptability and weight to be accorded tothe evidence, rather than forming its own opinion.[29] It was also common ground that the onus was on SLB as the appellant toidentify those aspects of the judgment under appeal which were said to be in error andcounsel accepted that, unless error can be identified, this Court should not intervene.12Counsel also accepted that no deference was required for the decision made by theFamily Court, beyond the customary caution appropriate when seeing the witnesses11 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.12 At [13]; Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].provides an advantage because credibility was important.13 It was howeveracknowledged that this Court can take into account that the Family Court is a specialistjurisdiction, with expertise in its particular area.14[30] Pursuant to r 20.19 and s 128 of the District Courts Act, after hearing theappeal, this Court can make any decision it thinks should have been made by theFamily Court, direct the Family Court to rehear the proceedings or to consider ordetermine any matters this Court directs, or make any further or other order that theCourt thinks just. It was accepted that these powers could be exercised in favour ofthe Chief Executive, even though the Chief Executive did not appeal.15Submissions[31] Mr Muston, appearing for SLB, emphasised that his client had care of S for thefirst year of her life. He submitted that there was nothing to suggest that the care thenprovided to S was inadequate, and that the problems which have arisen have onlydeveloped since she left her mother's care. He accepted the various comments madeby the psychologist, Ms Person, about SLB's limited parenting abilities, but arguedthat SLB did not harm S. Rather, he suggested that what is being claimed by the ChiefExecutive is that SLB is incapable of caring for S. He argued that there has to beevidence of harm in the past, or of likely harm in the future, if a declaration is to bemade, and that here there is no such evidence – simply prospective concern. Hereferred to the judgments of Durie J in C & C v Chief Executive of the Department ofChild, Youth and Family Services,16 and Anderson J in E v Department of SocialWelfare.17 He argued that the evidence before the Family Court did not establish thatSLB has failed, or will fail, to exercise the obligations of parenthood. He placedemphasis on art 19 of the United Nations Convention on the Rights of the Child.18 He13 Austin, Nichols & Co Inc v Stichting Lodestar, above n 5, at [13]; And see Rae v InternationalInsurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 199.14 D v S [2003] NZFLR 81 (CA) at [18].15 High Court Rules 2016, r 20.19(6); District Courts Act 2016, s 128(6).16 C and C v Chief Executive of the Department of Child, Youth and Family Services [2003] NZFLR643 (HC).17 E v Department of Social Welfare [1989] 5 FRNZ 332 (HC).18 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature on 20November 1989, entered into force 2 September 1990).suggested that if this Court has concerns for S's ongoing welfare, one course open tothe Court would be to set aside the declaration, but make S a ward of Court.[32] Mr Bowe, for the Chief Executive, referred to s 14(1)(a) and (b) of the Act, andnoted that each refers to both actual or likely harm. He submitted that the ChiefExecutive did not have to prove that SLB consciously harmed or neglected S, andfurther that the Chief Executive did not have to prove that SLB was culpable. Heargued that the Chief Executive simply had to satisfy the Family Court, on the balanceof probabilities, that S was in need of care or protection on any of the grounds specifiedin s 14(1). He argued that there was ample evidence to enable the Family Court to beso satisfied and that there was no error either in law or in fact in the Family Court'sdecision. He referred to S's welfare and best interests, emphasised that this was thefirst and paramount consideration, and submitted that the declaration was properlymade. He noted that if the Court were to find that S was not in need of care andprotection, the Chief Executive would no longer have any role in ensuring S's safecare because the interim s 78 custody order would also go, this Court having foundthat S is not in need of care and protection. As a result, he observed that there wouldbe nothing to prevent SLB from demanding that S should be immediately returned toher care. He argued that, on the available materials, S would not be safe in SLB'scare. He submitted that the Court should uphold Judge Roger's decision and dismissthe appeal.[33] Mr Amodeo, as counsel for the child, also emphasised s 6 of the Act as it stoodat the relevant time, referring to the welfare and best interests of the child. He arguedthat the appeal falls to be determined on the basis of an objective assessment of S andof her particular circumstances and situation. He submitted that the evidence beforethe Family Court clearly established, on the balance of probabilities, that S was in needof care and protection on the grounds set out in s 14(1)(a) and (b) of the Act. Hefurther submitted that the Family Court could not be satisfied that SLB, who wouldotherwise have S's care, would be capable of ensuring that the kind of harm sufferedin the past would be neither continued nor repeated. He put it to me that the decisionof the Family Court was correct and that it should be upheld.AnalysisApplicable provisions[34] The application for the declaration was made pursuant to s 68 of the Act andin reliance on s 14(1)(a) and (b). As they stood at the relevant time, s 14(1)(a) and (b)read as follows:14 Definition of child or young person in need of care or protection –(1) A child or young person is in need of care or protection within themeaning of this Part if –(a) the child or young person is being, or is likely to be, harmed (whetherphysically or emotionally or sexually), ill-treated, abused, or seriouslydeprived; or(b) the child's or young person's development or physical or mental oremotional well-being is being, or is likely to be, impaired or neglected,and that impairment or neglect is, or is likely to be, serious andavoidable; or[35] As noted above, this provision was amended as from 1 July 2019. There arehowever transitional provisions.19 Relevantly, schedule 1AA, part 3, cl 7(2) providesthat s 14 (as it read before the Amendment Act came into force) continues to apply toany proceeding that, immediately before the commencement date, had been broughtbut not determined. Further cl 11(2) provides that an application for a declarationmade under s 68 before the commencement date falls to be determined under s 68 andany related provisions as those provisions read before the commencement date.[36] This appeal relates to proceedings issued on 9 January 2018 by the ChiefExecutive, and it was common ground that the appeal should be considered on thebasis of the law as it stood before 1 July 2019.The statutory framework[37] The object of the Act as it stood at the time was to promote the wellbeing ofchildren and young persons and, inter alia, to protect them from harm.20 Section 619 Oranga Tamariki Act 1989, s 2A.20 Section 4(d) and (e).(since repealed) required that, in all matters relating to the administration andapplication of the Act, the welfare and interests of the child were to be the first andparamount consideration, having regard to the principles set out in ss 5 and 13. Section5 required the Court to be guided by a number of principles, including, whereverpossible, that a child's family, whānau, hapū, iwi and family group should participatein the making of decisions affecting the child,21 that the relationship between a childand his or her family, whānau, hapū, iwi and family group should be maintained andstrengthened,22 and that consideration be given to how a decision affecting a child willaffect the welfare of that child and the stability of that child's family, whānau, hapū,iwi and family group.23 Section 13(1) repeated the s 6 requirement that the Courtadopt, as the first and paramount consideration, the welfare and interests of the child.It went on to provide that, in determining the welfare and interests of the child, theCourt should be guided by the principle that children must be protected from harm,and have their rights upheld; that intervention into family life should, however, be theminimum necessary to ensure a child's safety and protection,24 that a child should livein association with his or her family, whānau, hapū, iwi and family group,25 and thatwhere a child is considered to be in need of protection, wherever practicable, thenecessary assistance and support should be provided to enable the child to be caredfor and protected within his or her family, whānau, hapū, iwi and family group.26[38] The various principles set out in the Act reflect New Zealand's obligationsunder the United Nations Convention on the Rights of the Child, in particular art 3,which requires that, in all actions concerning children, the best interests of the childare the primary consideration, and the rights contained in other articles, in particulararts 7, 8, 9 and 18. There is a broad presumption that a child should be brought up byhis or her parent, but that presumption is subject to the first and paramountconsideration – namely the child's welfare and interests. If the child's best interestsindicate that he or she should be removed from the parent's care, then that can happen21 Section 5(a).22 Section 5(b).23 Section 5(c).24 Section 13(2)(b)(ii).25 Section 13(2)(c).26 Section 13(2)(d).but the child must be given the opportunity maintain a relationship with his or herparent in a meaningful way, unless that is contrary to the child's interests.27[39] There was no dispute that SLB has been given the opportunity to maintain arelationship with S. SLB would like better access if S cannot be returned to her care,but at present she has access to S every fortnight by Skype. She has supervised face-to-face access every other month, and as Mr Muston noted, the Chief Executive hasmet SLB's airfares so she can travel to visit S. SLB can also send letters and the liketo S via her assigned social worker.Care and protection/Declarations under s 14[40] Very broadly, the care and protection regime in the Act was divided into threestages:(a) a declaration that the child or young person was in need of care andprotection under s 14;(b) disposition under s 83, which permitted the Court to make variousorders, such as restraining orders, support orders and custody ordersonce a declaration had been made; and(c) periodic review, permitting the variation and discharge of orders made.[41] This case concerns the first stage – the making of a declaration under s 14.[42] An application for a declaration that a child or young person was in need ofcare and protection could be made by the Chief Executive,28 but no application couldbe made unless a family group conference had first been held.29 There was howeveran exception where, as here, an application for a custody order under s 78 was madeat the same time and the applicant believed that the interests of the child in respect of27 And see, Director General of Social Welfare v G 14 FRNZ 23.28 Section 68(a).29 Section 70.whom the application was made, required that a custody order be granted as a matterof urgency.30[43] In the present case, family group conferences were held in June and July 2016and again on 26 April 2018. The latter conference was adjourned to 11 May 2018.When it resumed, agreement could not be reached. There is however nothing in theAct to suggest that failure to reach an agreement is a barrier to the making of adeclaration, and logically that cannot have been Parliament's intention, otherwisemaking declarations in appropriate cases would have been frustrated.[44] The Family Court's power to make the declaration sought by the ChiefExecutive was contained in s 67(1). It provided that the Court could, on application,and where it was satisfied that any of the grounds specified in s 14(1) applied, make adeclaration that a child or young person was in need of care or protection. The Courtcould not however make a declaration under s 67(1) unless a family group conferencehad been held.31 Further, the Court was not to make a declaration unless it wassatisfied that it was not practicable or appropriate to provide care or protection for thechild or young person by any other means.32 In deciding whether or not to make adeclaration that a child or young person was in need of care or protection on any ofthe grounds specified in paragraph (a) or paragraph (b) of section 14(1), the court wasrequired to take into account, among other things, any evidence before the court:33(a) that the kind of harm suffered by the child or young person wouldneither continue nor be repeated; and(b) that the parent or guardian or other person having the care of the childor young person would be capable of ensuring that the kind of harmsuffered by the child or young person would be neither continued norrepeated.30 Section 70(2)(ba).31 Section 72(1).32 Section 73.33 Section 73(2).[45] The Courts held that s 14 justified intervention in a family's autonomy onlywhere the child's care had fallen or was likely to fall below the normal standardsacceptable in the community. As Anderson J noted in E v Department of SocialWelfare:34State intervention is not justified by the prospect of improving a child's carebut by inadequate care which, having regard to the diversity of our NewZealand culture and its broad range of parenting approaches and abilities, isclearly unacceptable. The principle imports a consideration of the minimumcommunity standards of parental compliance such that the state should notintervene unless the parental care has been proven to be unacceptablyincompetent.The harm or likelihood of harm specified in s 14 had to be proved on the balance ofprobabilities, and be of sufficient degree to justify or warrant the Court's interventionby the making of a declaration.35 However, once seized of an application, the Courtwas able to make a declaration on the basis of any of the grounds set out in s 14(1)that was supported by the evidence.36[46] The words "is being", used in s 14(1)(a) and (b) denoted a continuous state ofaffairs, and the Courts held that a single incident of harm could not by itself establishthat a child was being harmed.37 The words "is likely to be" were held in the UnitedKingdom, to mean "a real possibility, a possibility that cannot sensibly be ignoredhaving regard to the gravity of the feared harm in the particular case".38 It was heldin this country that the test was "likely, on the balance of probabilities, to be harmed".39Despite current care being adequate, a declaration could be made if the parents'previous care of the child, or the expert evidence, was such as to enable a predictionthat the child was likely to be harmed, whether physically or emotionally or sexually,34 E v Department of Social Welfare, above n 17, at 334; And see C and C v Chief Executive of theDepartment of Child, Youth and Family Services, above n 16.35 Oranga Tamariki Act 1989, s 197; Director General of Social Welfare v S [1992] NZFLR 309 (HC)at 312; And see Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR1.36 Y v Chief Executive of the Ministry of Social Development [2012] NZHC 2774 (HC).37 E v Department of Social Welfare, above n 17 at 335; Department of Social Welfare v T (1983) 2NZFLR 358 (HC) at [21].38 Re O (Children) (Non Accidental Injury); Re D (Children) (Non Accidental Injury) [2003] UKHL18, [2003] 2 All ER 305 at [16]; applied in New Zealand –in C and C v Chief Executive of theDepartment of Child, Youth and Family Services, above n 16 at [29].39 P v Department of Child, Youth and Family Services [2008] NZFLR 896 (HC) at [61].or that the child's development or physical or mental or emotional wellbeing waslikely to be impaired or neglected.40[47] There was no disagreement in this appeal as to the applicable legal principles.What was in issue was their application. As Mr Bowe put it, the essential issues were:(a) was S a child in need of care or protection because of her needs and/orSLB's limitations; and if so(b) could S's need for care and protection be met by means other than themaking of the declaration.The evidence before the Family Court[48] The Family Court had a number of affidavits and reports before it, namely:(a) an affidavit from a Ms Antony, a social worker who had been assignedby the Chief Executive to S's case. Both Ms Mataara's report andMs Besson's report were attached to her affidavit;(b) a further affidavit from another social worker, a Ms Pamplin-Smart,who had also been assigned to S's case. Annexed to her affidavit wasa further report prepared by Ms Angela Person, a registeredneuropsychologist and clinical psychologist, who assessed SLB'scognitive performance and adaptive functioning on 15 March 2018;(c) a separate affidavit from Ms Person, annexing her assessment;(d) a further social work report, dated 13 March 2018, prepared byMs Pamplin-Smart;(e) an updated social work report, dated 27 April 2018, also prepared byMs Pamplin-Smart;40 And see Brookers Family Law – Child Law (looseleaf ed, Brookers) at [NT4.2.07(1)].(f) copies of the parenting order and guardianship applications made byMr and Mrs D and the related papers;(g) copies of various emails which SLB had sent to her cousin and herpartner regarding their care of S;(h) two affidavits from SLB, one dated 31 January 2018 and the other dated28 November 2018; and(i) reports prepared by Mr Amodeo, as counsel for the child.[49] At the hearing, viva-voce evidence was given by Ms Pamplin-Smart,Ms Person and SLB. Various additional documents were put before the Court,including a social work report from a Ms Henderson, dated 22 May 2019, a childdevelopment report dated 18 March 2019, a Gateway Assessment report, dated 11October 2018, and S's Plunket book. SLB also produced three certificates attesting toher attendance at and/or completion of various parenting programmes.[50] Much of the material put before the Family Court would generally beconsidered to be inadmissible but, pursuant to s 12A of the Family Courts Act 1980,the Family Court can receive any evidence, whether or not admissible under theEvidence Act 2006, that it considers may assist it to determine the proceeding. Therewas no objection to any of the above materials being considered by the Family Court,and indeed there was extensive cross-examination on almost all of them.Concerns about SLB's parenting abilities[51] As I have noted above, concerns were expressed about SLB's ability to carefor S even before S was born. The midwife who first expressed concern about SLB'scapacity to parent did so because:(a) SLB wanted to give the baby a dummy – she said that she did not wantthe baby crying;(b) SLB did not want to wake the baby to feed it – she said that nobodycould make her wake the baby to feed it;(c) SLB was a slow learner;(d) SLB asked a lot of questions about what to do, but then argued with theanswers received and said that she would not do the thingsrecommended;(e) SLB had little social support;(f) SLB was asserting that she could do what she wanted;(g) SLB's then current partner was her fourth partner during the pregnancy;and(h) SLB was declining a suggestion that she should receive social workersupport.[52] Similar concerns were expressed on 23 October 2015, when staff members atthe Whangarei Base Hospital reported that SLB would not engage with staff membersand that she was constantly challenging them. Staff reported that SLB was demanding,and that she was making statements that led staff to believe that S might be seriouslyharmed if she was discharged into SLB's care.[53] The concerns expressed were borne out in part, when S developed an eyeinfection as noted in [9] above, and when SLB refused to accept tailored advice andinstead relied on generic advice.[54] The concerns were also borne out when the Ministry received a confidentialreport from a family member. The family member had observed SLB's parenting ofS. The family member noted that when S was tired, SLB would not allow her sleepsaying that "she doesn't sleep in the day, she sleeps eight hours at night". The familymember also observed that when S was hungry, and concerns were raised, SLB statedthat she fed S every three hours. On one occasion, SLB said that she had just fed S,when the family member knew that that was not the case. The family membercommented that S was not fed for another two hours, and reported that S "wasstarving". The family member believed that SLB was too rigidly following Plunket'srecommendations, rather than recognising that all babies' needs are different.[55] Ms Mataara assessed SLB in January 2016. She noted that SLB was removedfrom her own mother's care at the age of 10 years, because of neglect, and that shewas assessed by a psychologist at the time who felt that there were "possible globaldifficulties [that had] impacted on [SLB's] cognitive skills". Ms Mataara noted thatSLB was living with her mother and caring for S, and that the effect of SLB'sbehaviour on S was concerning. She recorded that SLB was adamant that she was notsuffering from depression, anxiety or any other mental health issue, and that she didnot want community health services involved. She recorded SLB as asserting that shedid "not care what CYFS or anybody thinks". It was noted that SLB slept 9 – 10 hoursa night, and that she felt that S was sleeping well throughout the night as well.Ms Mataara noted that SLB seemed to be lacking in knowledge of S's developmentstage. She recorded that, when she had visited SLB, S appeared to be tired, with herhead lagging to one side. She noted that SLB made no attempt to support S's head,and that when SLB's mother asked that S be passed to her, SLB rejected thatsuggestion and seemed hostile about it. Ms Mataara reported that when she askedSLB if she felt S was tired, SLB responded that she didn't force S to sleep and that Swould sleep when she wanted to. Ms Mataara expressed the following opinion:I am concerned about [S's] safety in regard to nurturing and her developmentand [SLB] realising she needs all cares done for her. [SLB] did not appear torecognise baby [S's] queue's (sic) while I was there and is not open to havinghelp regarding this. It was noted that when [SLB's] mother tried to speak, that[SLB] cut her off.[56] Ms Besson reported on SLB's parenting capacity in May 2016. Again, shenoted SLB's background, recording that she had been placed in care at an early stage,following ongoing concerns when she was a child. It was noted that when she left thecare home, SLB became transient, and that she attended several courses, but nevercompleted any. Ms Besson spoke to SLB's mother, and reported that sheacknowledged that SLB is limited in her ability to provide a safe and good home forS. It was noted that SLB's relationship with her mother is challenging, and that SLBis controlling and can be hostile. It was also observed that SLB did not take advicefrom her mother and only let her mother care for S when SLB wanted to spend timewith a boyfriend. Ms Besson also interviewed SLB. She recorded that SLB talkedabout the various professionals who had been involved with her, and that she hadrefused to engage with them, stating "I just don't like them, so I don't want anythingto do with them". Ms Besson noted that records in relation to SLB indicate that shehas disengaged with most of the agencies who have been involved with her. Ms Personalso noted various concerns expressed by professionals who had been involved withSLB and S since S's birth. It was noted that concerns had been expressed by a socialworker, Susan Whatmough, about SLB's behaviour following the birth of S and notinga lack of engagement, insight and knowledge of S's developmental stages.Ms Mataara's report was noted, as was a report prepared by another registeredpsychologist in July 2016, Barbara Kalshoven. Ms Kalshoven had noted that SLBmanifested symptoms of obsessive-compulsive disorder, attention deficit disorder andpossible Asperger's disorder. SLB's "cognitive ability was assessed [as falling] inthe low average, below average intellectually". Concerns had also been expressed byBethne Smith from Strengthening Families who noted that SLB had received a lot ofadvice, but she wanted to do it her way. It was noted that SLB did not engage withprofessionals, and that that of itself was a worry. Concerns about SLB's abilities toparent S were also expressed by Lynette Matthews, a manager of the Early Years Hub.[57] Ms Besson summarised her conclusions as follows:Many concerns were expressed by different professionals who have beeninvolved with [SLB] and [her mother] since the birth of baby [S]. They allseem to be concerned about [SLB's] lack of ability to provide safe andadequate care of baby [S] in the long term.[S's] physical needs seem to be well met at present. However, there is aprobability that [S's] emotional and psychological development will becompromised over time due to [S's] below average cognitive function.Unfortunately, [S's] parenting ability has been limited by her disengagementfrom support agencies attempting to inform and upskill her parenting practice.[SLB's] capacity to safely parent is compromised by her low cognitivefunction and lack of insight understanding of [S's] emotional anddevelopment needs. the complex and often hostile relationship between[her mother] and [SLB] would be likely to impact and exacerbate difficulties.[S] would be less likely to thrive and possibly be at risk in such anenvironment. [SLB] is planning to have another baby by the end of next year. She is not ina relationship at present, but is confident that she will find a new boyfriend This will further impinge on [SLB's] emotional availability for [S]. [SLB]doesn't seem to understand the potential difficulties and negative impact thatfuture relationships might have on [S's] emotional and psychologicaldevelopment. It is essential that [S] has stability and security in a nurturingsafe environment for the long term.[58] It is noteworthy that neither Ms Mataara, nor Ms Besson, was called for cross-examination at the hearing. Mr Muston acknowledged that they could have been.[59] Ms Pamplin-Smart in her affidavit updated the situation, and noted thatMs Person had been appointed as an independent neuropsychologist and clinicalpsychologist to assess SLB. She annexed Ms Person's report and commented on it.She noted that children mirror modelled behaviour and enjoy reciprocatedengagement, and that it appeared from the assessments both by Ms Mataara andMs Person, that SLB found it difficult to allow others to share in S's care. It was notedthat S had gone through a lot of changes over a short period of time, and that she needsSLB to be attentive to her verbal and non-verbal cues and to respond appropriately. Itwas commented that SLB could not allow herself to become bored or irritated with S,as any lack of engagement would impact negatively on S's development. In addition,it was suggested that should S "escalate" SLB, there was a chance that SLB mightplace S at risk of physical harm. It was noted that SLB had no insight into S's age andstage of development, and that she blamed the then caregivers, Mr and Mrs D, for Sbeing behind in her milestones. It was accepted that SLB has engaged withprofessional services in the past, but it was suggested that she has been unable todemonstrate any learning or insight she had gained from doing so. Ms Pamplin-Smartexpressed the view that SLB had limited or inconsistent understanding of S'semotional, social, physical and developmental needs and that SLB had distorted ideasof healthy and safe parenting. It was suggested that this raised concern should SLBattempt to parent S independently. It was also noted that SLB had no basic knowledgeof budgeting for the care of a child, let alone for herself, because all her needs weretaken care of. It was queried how SLB could take care of S's needs, given that herown skills and knowledge were distorted.[60] Ms Pamplin-Smart gave evidence and she was cross-examined about the ChiefExecutive's views, the basis of the application, her own views and the views expressedby others who had been involved. She acknowledged that there was nothing in S'sPlunket book suggesting that there were any concerns about S's health or developmentwhich could be attributed to SLB's neglect when she was caring for S, but otherwisestuck to her view that SLB's parenting capacity is limited and that this hadcompromised S's emotional and psychological development.[61] Ms Person undertook an assessment of SLB's intellectual abilities. Her reportis dated 21 April 2018. She interviewed SLB, Ms Pamplin-Smart and Ms Antony. Shealso reviewed Ms Kalshoven's report, and the reports prepared by Ms Mataara andMs Besson, and took into account background information provided by Ms Pamplin-Smart. She discussed SLB's family history and current situation. She used a testknown as the Wechsler Intelligence Scale for Adults – 4thedition. SLB's generalcognitive ability was assessed at being within the borderline range of intellectualfunctioning. Her full-scale IQ was assessed at 74 and it was observed that SLB'sthinking and reasoning abilities exceed those of only some four per cent of individualsof her age. It was noted that SLB lives at home with her mother, and SLB was reportedas having advised Ms Person that her mother did most of her day-to-day living tasksfor her – for example – cooking and preparing of meals, washing and folding clothes,cleaning the house and cleaning up after her. SLB told Ms Person she did not haveany responsibilities at home and liked to just let her mother do everything for her. Itwas suggested that SLB's difficulties in functioning inside the home, includingcleaning, food preparation, performing chores and taking care of personal possessions,formed an "observable area of weakness" in SLB's everyday adaptive functioning. Itwas also noted that SLB spoke of a lack of tolerance for other people, a disinterest infriendships, poor engagement with professionals and a lack of empathy. Ms Personrecorded that SLB spoke of having little or no interest in other peoples' perspectives.Ms Person was of the opinion that SLB's overall borderline range of intellectualabilities was significantly impacting her every day functioning. She noted as follows:Presently, historical information, alongside the cognitive-adaptivebehavioural assessment, and reports of [SLB's] social emotional-behaviouralfunctioning suggests that she would be challenged to meet [S's] current needsindependently. Concern in the past was that even with the support of hermother, placement was unsuccessful.[62] Again, Ms Person gave evidence and she was cross-examined. She did notresile from the opinions expressed in her report in any material respect.S's circumstances and needs[63] Ms Person also noted that S presented with some challenging behaviours thatshe considered might be indicative of complex long-term needs.[64] There were other materials before the Family Court in relation to S. There wasa social work report dated 22 May 2019. It was produced in evidence. It was reportedthat S was then attending day-care near Wellington, that the day-care centre had noconcerns for her, and that her motor and social skills had improved since she firststarted. It was noted that S is gaining and developing skills typical of her age. It wasalso reported that S is thriving and making her own friends. It was observed that S isthriving in the care of SLB's cousin and her partner, and with minimal involvementfrom Oranga Tamariki.[65] There was also a child development report dated 18 March 2019. It was therenoted that S is a busy girl – "like a whirlwind" – and that she tends to have quick, fastplay, moving from one thing to another. It was also noted that she experiences someanxiety and that she does not like being left in a room alone, and is sensitive about thefeelings of others. An assessment using a developmental assessment tool known as"Griffiths 3" was undertaken. It assessed S's ability to manage those tasks which arefoundations for learning, such as puzzle tasks, language and communication, hand-eye coordination and motor skills. S was in the normal range for most and it wasobserved that she is making good progress and has normal development across all"subscales".[66] There was also a Gateway Assessment report, dated 11 October 2018, preparedby Dr Varsha Gandhi. Dr Gandhi assessed S, and recommended that she needs to livein an environment where her physical, emotional and developmental needs can berecognised and responded to, and with caregivers who are able to recognise her cuesand nurture her physically and emotionally. Dr Gandhi expressed some concernsabout S's development, noting that there is a delay in her fine motor skills, and a milderdelay in her receptive language. He considered that some aspects of her physicalexamination are concerning, but made no definite findings in this regard. He alsonoted that S displays signs of inappropriate attachment and anxiety, but that there hasbeen an improvement since she has been in the care of SLB's cousin and her partner.The view was expressed that S displays signs of anxiety and emotional upset duringand following visits by SLB, that this needed to be monitored carefully, and that visitsshould be reviewed if the behaviours continue or worsen.[67] Commenting generally on the parenting skills needed for a child with specificneeds, Ms Person stated as follows:A child with specific needs would require more awareness and sensitivity andability to respond to those particular needs and care for them, not (sic) matterwhat those needs are. The reason that I had flagged that in the report was theinformation that [S] was presenting with some difficulties at the time and Iwas concerned that perhaps they needed to be identified and it depends on thedegree of those needs, but a – even a person with adequate parenting skillsand let's say average intellectual ability could also be challenged by a childwith needs, so it emphasises the need to take care and caution that the supportwould be there for the child.[68] There was also a further social work report dated 20 December 2019. It wasnot before the Family Court. It was ordered by Judge Rogers and it was produced byMr Amodeo. Counsel agreed that I should look at it. The report recorded that duringsupervised access with SLB, it has again become apparent that SLB lacks the skillsand the ability to connect with S. It was also observed that S looked uncomfortable,and that SLB is unable to recognise S's cues. Since S has been placed with SLB'scousin and her partner, she has developed a strong and positive attachment with themand with their daughter; they are responsive and sensitive of S's needs and canrecognise her cues and respond appropriately. It was observed that S requires furtherassessment, and that she may have complex long-term needs which require awarenessand sensitivity and an ability to respond. It was suggested that SLB's cousin and herpartner are nurturing and supporting S's physical, emotional and developmental needs,and it was recommended that there is presently no realistic possibility of S returningto SLB, because of the significant care and protection concerns relating to SLB'sability to parent.SLB's evidence[69] In her first affidavit, SLB contested a number of the observations made by thevarious social workers. She asserted that she was pressured into allowing Mr andMrs D to care for S; she said that she had cared for S until she was approximately 12months old, taking responsibility for S's primary care, feeding, bathing, washing andthe like. She accepted that the various issues arose between her and Mr and Mrs D,but said that whilst she did not agree with their position on a number of matters, shedid not want S's care disrupted. She said that all times she remained S's guardian andthat she was simply seeking to be consulted on guardianship issues. She expressedthe view that she is capable of parenting S, and that she wants S to come back into herprimary care. She argued that Ms Besson's report was "extremely limited", and thatthere was no assessment of her and S together and no observation of her parentingskills.[70] In her second affidavit, SLB replied to Ms Person's report. She denied thecomment attributed to her by Ms Person that her mother washed and folded her clothesand cleaned up after her. She said that she did her own laundry, cleaned her own roomand often offered to do the dishes. She denied any hostility and said that she was justa "very straight up person". She denied failing to recognise S's cues, and deniedintimidating others. She did however say that if others annoyed her, she wouldrespond and defend herself. She said that she only had one boyfriend during herpregnancy, and that while she met up with a "few guys from dating apps while shewas pregnant", that was it. She said that in any event, this was none of OrangaTamariki's business. She asserted that she was doing everything in her power todemonstrate to Oranga Tamariki that she was willing to improve and to try to get herdaughter returned into her care. She claimed that she had engaged with professionalswillingly, and that S is never anxious or ambivalent towards her. She argued that sheand S have a good, strong and emotional bond and attachment. She asserted that shecould care for S if she had some supports in place and if people would give her achance.[71] SLB gave viva voce evidence of the various parenting courses she hasattended. She accepted that as a parent, no-one is perfect, but said that she is alwayslooking to learn more and improve her situation. She dealt with her relationships withother family members and friends. She was critical of the limited contact she has withS, and queried how she is expected to interact with S and develop a strong bond, whenshe does not have long enough with S to create that kind of bond. She neverthelesssaid that she has a good relationship with her cousin and her partner, who currentlyhave S in their care. While it has become "a little bit more strained" since S had beenin their care, if S cannot be in her care, then her cousin and her partner were herappropriate placement choice. When she was asked whether she is seeking regularcontact with S, her response was that she is seeking to get S back, and to regain custodyof her.[72] Mr Amodeo took SLB through some of the behaviours attributed to her. Shecommented as follows:I did some of the things suggested but then again its my child so I said, youknow, this is my baby and I'll parent her my way, not the same way thateveryone else wants to make me do it.When she was asked whether she agreed with some of the concerns expressed for S,she replied: "Not particularly, maybe some aspects but not all". She asserted that shehad taken on some of the advice given to her. When she was asked why she did nottake on all of the advice, she responded, "Because I don't have to agree with everyonein this world". She denied various other matters attributed to her. She did not acceptthat she failed to pick up on S's cues and act appropriately or that she habituallydisagreed with professionals trying to help her. She accepted that S was "a little bittraumatised" when she was moved from her placement with Mr and Mrs D and thatshe was further traumatised when she moved in with the temporary caregivers, beforebeing moved to the cousin and her partner. She accepted some responsibility for theplacement with Mr and Mrs D breaking down, and she expressed sorrow for the factthat S became traumatised. She nevertheless said that she was happy, because she didnot get along with Mr and Mrs D, and because they were trying to force a lot of"different stuff on the parenting side of things".[73] Mr Amodeo took her through each of the various reports and sought hercomment on material matters in each. SLB accepted that she did not think that shewould be getting S back for a number of years. She also accepted that S presents withsome challenging behaviours that could be indicative of complex long-term needs.She said that, if this is the case, she has asked Oranga Tamariki, whether, if S isreturned to her care, they can help "finding things to engage with that would help S".She said, "[s]he obviously has some stuff that we need to deal with". She acceptedthat she personally has a slight learning difficulty, but went on to say, "[w]hose (sic)to say that I can't parent my child with a lot of support networks in place and health –like help".The Family Court's view of the evidence[74] Broadly, the Judge concluded that:(a) S's removal from her placement with Mr and Mrs D had been extremelydifficult for S;(b) S was and still is displaying signs of inappropriate attachment andanxiety;(c) S's situation has improved since she has been placed with SLB's cousinand her partner;(d) S has complex long-term needs, and support and assistance are requiredto deal with those needs;(e) SLB acknowledges that she did not think it likely that S would becoming back to her care for some time;(f) SLB has not proposed any alternative arrangements or care plan, noradvanced any proposal for S's ongoing care other than her return to her;(g) SLB has undertaken parenting courses, but there is no evidence of herability to apply what she has learnt; and(h) SLB faces personal challenges, due to her own exposure to severeparental neglect and domestic violence as a child, her low intellectualfunctioning, her lack of understanding of child development, her lackof parenting skills, her reluctance to accept advice or support, and herlack of insight.[75] There was clearly an evidential foundation for each of these various findingsand although Mr Muston took me to SLB's evidence in relation to a number of thespecific issues, SLB has not been able to persuade me that the Judge's conclusionswere wrong in relation to any of them. It is noteworthy that SLB did not call evidence,for example, to rebut or critique Ms Person's report. Rather, SLB simply disagreedwith aspects of Ms Person's report. Nor was there any independent challenge to anyof the other expert and professional reports and assessments. There was evidence ofconcern on the part of not only professionals but also family members, as to SLB'sparenting capabilities, and the consequences for S.[76] I accept that there is nothing to suggest that SLB inflicted any physical harmon S during the first year of S's life; nevertheless the evidence established that SLB'slimited parenting capacity had already harmed S emotionally. While SLB has, to hercredit, undertaken parenting courses, there is no evidence that the undertaking of thesecourses would of itself ensure the kind of stable, secure, sensitive and long-term carethat S requires. SLB herself acknowledges that S needs help and support and unlessthe declaration is in place, SLB would become responsible for organising thenecessary support network herself. There is nothing to suggest that she is capable ofdoing that. The evidence compelled the conclusion that, were S to be returned toSLB's care, it is likely, on the balance of probabilities, that there will be ongoingemotional harm to S. On the evidence, SLB is not currently able to provide theappropriate care for S.[77] S's welfare and interests were the first and paramount consideration, and I amsatisfied that the orders made by Judge Rogers were directed to that end. S was inneed of care and protection under both s 14(1)(a) and (b) as at the time the declarationwas filed. The various concerns expressed have not reduced over time, and theevidence before the Family Court did not demonstrate that, without a declaration, thekind of harm, particularly emotional harm, previously suffered by S would notcontinue or be repeated. SLB's cousin and her partner, as the persons now having thecare of S, have brought that harm to an end and they are able to ensure that it will notrepeat if S is left in their care. She has thrived since being in their care. The declarationmeant that the Chief Executive could place the child with S's cousin and her partner.The Family Court could not properly be satisfied that it was practicable or appropriateto provide the necessary care and protection for S, other than by making a declaration.[78] The making of the declaration does not preclude S returning to SLB's care ifand when that course is appropriate. It is not presently appropriate, and in myjudgment, the Family Court was right to make the declaration that S was a child inneed of care and protection. That was the only way of protecting S's welfare andinterests.Result[79] The appeal is dismissed.[80] In accordance with s 437A of the Act, I direct that any report of this proceedingmust comply with ss 11B to 11D of the Family Courts Act 1980.[81] SLB has a grant of legal aid. No costs order is appropriate and the ChiefExecutive did not seek costs.[82] I certify for Mr Amodeo's reasonable costs in preparing for the appeal, and inattending the hearing.____________________________Wylie J