HENDERSON & ANOR v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI [2023] NZHC 2766

HENDERSON & ANOR v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI [2023] NZHC 2766 [3October 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-2023-485-595[2023] NZHC 2766UNDER THE High Court Rules 2016, r 19.2(h); HabeasCorpus Act 2001; and New Zealand Bill ofRights Act 1990IN THE MATTER OF An application for a writ of habeas corpusBETWEEN MS HENDERSONFirst ApplicantAND IAN ADAMSONSecond ApplicantAND THE CHIEF EXECUTIVE OF ORANGATAMARIKIRespondentHearing: 2 October 2023Appearances: First and Second Applicants in personK E E Whiting for RespondentJudgment: 3 October 2023JUDGMENT OF GRICE JIntroduction[1] This is application for the writ of habeas corpus in respect of Ryan,Ms Henderson's 13-year-old son who is in the care of Oranga Tamariki.1Facts[2] The first and second applicants submit that Ryan is being illegally detained inOranga Tamariki's care.[3] Following a defended hearing, on 17 March 2023, the Family Court madeorders under ss 101 and 110(2)(b) of the Oranga Tamariki Act 1989 giving the ChiefExecutive of Oranga Tamariki (the Chief Executive) custody of Ryan.2 Ms Hendersonhas appealed that custody decision to the High Court.3 Her appeal was heard inSeptember 2023 and the decision is awaited.[4] Ms Henderson has also made a number of applications to the Family Courtconcerning recent events and is seeking a discharge of the custody and guardianshiporders presently in place in favour of the Chief Executive. The respondent notes thata without notice application dated 16 May 2023 was dismissed on 17 May 2023, asMs Henderson had been unable to demonstrate a material change in circumstances. Afurther without notice application dated 18 May 2023 sought leave to vary the custodyorder. That was again dismissed by the Family Court on the same day.[5] On 31 July 2023 a further without notice application was made byMs Henderson to "discharge all current orders held in favour of the Chief Executive".At a judicial conference on 18 August 2023 Judge Moss in the Family Courtdetermined the application was inadequate on the basis that no application for leaveto apply was filed. Judge Moss further indicated that the proceedings filed byMs Henderson were contrary to Ryan's best interests and leave would not have beengranted.1 The applicants' names and the child's name have been anonymised in this judgment.2 Chief Executive of Oranga Tamariki v [Henderson] [2023] NZFC 2167 at [105].3 CIV-2023-454-41.[6] After a number of incidents involving Ryan running away from the OrangaTamariki-arranged care to Ms Henderson's home, Oranga Tamariki has obtained arestraining order in the Family Court preventing Ms Henderson having contact withRyan until a family group conference is convened to formalise and approve a new planunder s 128 of the Oranga Tamariki Act.4Application for habeas corpus[7] Ms Henderson has filed an originating application for the writ of habeascorpus, in reliance on s 13 of the Habeas Corpus Act 2001; Barnardo v Ford,Gossage's Case;5 and ss 5, 18 and 22 of the New Zealand Bill of Rights Act 1990.[8] Ms Henderson says that Oranga Tamariki acknowledges the plan for Ryan'scare under s 128 of the Oranga Tamariki Act has broken down. The applicants say theCourt must now approve a new plan as being in the best interests of the child beforeany new plan has lawful effect.[9] The applicants say that because the previous plan pursuant to s 128 has brokendown, the Court has no jurisdiction to make or continue any orders regarding Ryan'scare and access arrangements in favour of Oranga Tamariki. Therefore, he is beingillegally detained.Law and application[10] As the respondent submitted, custody orders are amenable to a writ of habeascorpus but only in rare circumstances.6 While the mere existence of a Family Courtorder is not a conclusive answer to an application for habeas corpus, provided thevalidity of the order can be established, any challenges are more appropriately pursuedby way of review or judicial review.74 FAM-2021-054-405.5 Barnardo v Ford, Gossage's Case [1892] AC 326 (HL).6 H v Family Court at Tauranga [2018] NZHC 3459 at [5]; Adamson v Chief Executive of OrangaTamariki [2022] NZCA 505 at [28]; and DE v Chief Executive of the Ministry of SocialDevelopment [2007] NZCA 453, [2008] NZFLR 85.7 D (CA504/2020) v Adams [2020] NZCA 454 at [9].[11] It appears the orders in force are lawful and validly made, although subject toan appeal. In addition, current matters are before the Family Court. A Family Courtjudicial conference has been scheduled for 11 October 2023.[12] The breakdown of the implementation of a plan which has been approvedunder s 128 does not mean that the custody order in favour of Oranga Tamariki is nolonger lawful. Section 104 of the Oranga Tamariki Act provides that if the ChiefExecutive has a custody order he is entitled to custody as if he had a parenting order.Section 105 provides for residential placement by Oranga Tamariki.[13] In the circumstances, it appears a new plan should be developed and put beforethe Family Court for approval in the usual way. I am advised a family groupconference is to be convened in the future for that purpose.[14] Mr Adamson pointed out that under s 13 of the Habeas Corpus Act, if the youngperson8 is detained the High Court could "on its own initiative or at the request of aparty to the proceeding, transfer the application to the Family Court."9 Such a referralmust be dealt with by the Family Court in all respects as if it were an application tothat Court under the Care of Children Act 2004. Mr Adamson agreed that it wasinappropriate for this Court to deal with this matter in a summary manner but pointedout that the Family Court could employ its processes to deal with the habeas corpusapplication under the Care of Children Act.[15] I have considered that option, which is opposed by the respondent. In my view,because the matters are all currently before the Family Court it would merelycomplicate matters to refer the habeas corpus application back to it. A copy of thisjudgment can be made available to the Family Court because the matters raised in thisapplication are the same or similar to those that will be raised or have already been putbefore the Family Court. A further application transferred to the Family Court will notassist it in dealing with the matter. The best interests of the child must be borne in8 Under 16 years of age.9 Habeas Corpus Act 2001, s 13(2).mind10 and to further complicate matters by referring this to the Family Court will notbe in the best interests of the child.Outcome[16] Accordingly, I dismiss the application for habeas corpus. The orders underss 101 and 110(2)(b) of the Oranga Tamariki Act are lawfully in place. Ryan is notunlawfully detained.[17] This decision can be reported, consistent with ss 11B–11D of the Family CourtAct 1980 and s 437A of the Oranga Tamariki Act, as the parties and child's nameshave been anonymised.[18] I direct copy of this judgment be referred to the Family Court.________________Grice JSolicitor:Crown Law, Wellington.10 Care of Children Act 2004, s 4. Oranga Tamariki Act, s 4A.