W v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZCA 567 [30 November 2016]

W v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZCA 567 [30 November 2016]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/FAMILY-JUSTICE/ABOUT-US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING-JUDGMENTS.IN THE COURT OF APPEAL OF NEW ZEALANDCA491/2016[2016] NZCA 567BETWEEN WApplicantAND CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 28 November 2016Court: Randerson, Asher and Brown JJCounsel: Applicant in personR J Bowe and C A Corlett for RespondentJudgment: 30 November 2016 at 10amJUDGMENT OF THE COURTA The application for an extension of time to bring an application for leave to appeal is declined.B The application for leave to appeal is also declined.C No order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Introduction[1] The applicant Ms W has applied for leave to appeal under s 347 of the Children, Young Persons, and Their Families Act 1989 (the Act). She has also sought an order extending the time to bring the application for leave in terms of r 5(2) of the Court of Appeal (Civil) Rules 2005. Both applications are opposed by the respondent to whom we shall refer as the Chief Executive.Background[2] The application relates to Ms W's two children who are now aged six andthree respectively. Ms W had been in a relationship with the father of the children since 2007. Throughout the relationship there had been a high number of violentepisodes. The police were called to the family's home on many occasionsresponding to violent incidents associated with both parents. These were often fuelled by alcohol abuse. Child, Youth and Family and a range of other professionals were involved with the family during the relationship.[3] On 7 March 2014 the Family Court made an order under s 78 of the Act placing the children in the custody of the Chief Executive. The application was made on a without notice basis. At the same time, an application was filed on notice seeking a declaration under s 14 of the Act that the children were in need of care and protection. The father of the children consented to the declaration but it was opposed by the mother.[4] On 10 December 2015 Judge Riddell made the declaration after conducting a defended hearing in which all parties were represented.1 The Judge heard extensive evidence from Ms W, social workers, a police officer who had regularly attended disturbances at the family home, and from a psychologist. After a careful review ofthe evidence Judge Riddell's conclusions were:1 Chief Executive of the Ministry of Social Development v H [2015] NZFC 10422.[136] For now the evidence overwhelmingly points to the conclusion that [the children] are in need of care and protection. They meet the definition of children who have been and are likely to be emotionally deprived under s 14(1)(a).[137] Their development and emotional wellbeing are also showing signs of impairment under s 14(1)(b) as is evidenced by the psychologist's viewthat both children will need specialist input for a number of years.[138] Finally I have come to the conclusion that while the mother is not unwilling, she is certainly unable to care for the children under s 14(1)(f).[139] This is not a case where a parent might undertake some personal intensive work and, within a relatively short time be able to reassume the care of the children. The mother's personality disorder is invasive and longlasting and I agree with the conclusion of [the psychologist] that the mother would be severely challenged in meeting the needs of these two particular children.(Footnote omitted.)[5] Ms W then appealed to the High Court against the making of the declaration. In a judgment delivered on 15 June 2016 Brewer J dismissed the appeal.2 The appeal in the High Court proceeded by way of re-hearing pursuant to s 341 of the Act. Brewer J fully reviewed the evidence and findings in the Family Court. The Judge found it significant that, in reaching her decision, Judge Riddell had said"although domestic violence and alcohol may not feature in her presentation, [the appellant] would still be unable to safely parent both children".[6] Having reviewed the evidence, Brewer J concluded that the evidence tended to show that Ms W would be severely challenged in meeting the needs of the children. It was a pattern demonstrating Ms W had, on occasions, a compromised insight into proper parenting practice. Brewer J was also satisfied Ms W had, at times, disengaged from professional services. The evidence showed she had been inconsistent in her engagement with professional advice and selective in the advice she chose to follow. Finally, the Judge found there was no basis to challenge Judge Riddell's reliance on the findings of the psychologist with regard to Ms W'spersonality disorder. He concluded that Ms W had not satisfied him on the balance of probabilities that he should disagree with the outcome reached by Judge Riddell.2 W v Chief Executive of the Ministry of Social Development [2016] NZHC 1282.The applicant's submissions[7] A principal focus of Ms W's submissions in support of her application forleave to appeal was her submission that the children were exposed to violence as a direct result of the Ministry of Social Development putting in place a safety plan they breached and failed to implement. Ms W submitted that the Ministry had, until recently, denied the existence of the safety plan. As we understood the point Ms W was making, the social worker responsible for the safety plan had reached the conclusion only two months before the children were uplifted that they could remain with her. Her rhetorical question was: what had changed by the time the children were uplifted on 7 March 2014?[8] Ms W also stressed she had obtained a protection order to prevent the children from violence by their father. She submitted she had done all she could to keep the children safe.[9] Ms W said the lower courts had accepted that the issues she had previously had with the abuse of alcohol were now in the past. She was supported by the church to which she belongs. Her access to the children had been very limited and she wished to have the opportunity to persuade this Court that she was capable of caring for her children.Discussion[10] We propose to address first whether leave to appeal should be granted under s 347 of the Act. The relevant test for the grant of leave to appeal is set out by this Court in Porter v Chief Executive, Ministry of Social Development:3For 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 accept the submission made by Mr Bowe on behalf of the Chief Executive that there is no question of fact or law capable of serious argument that is of sufficient importance to outweigh the cost and delay involved in the further3 Porter v Chief Executive, Ministry of Social Development [2014] NZCA 157 at [10].appeal. Both the Family Court and High Court very fully addressed the issues. They are essentially factual in nature and we do not discern any valid basis to overturn the rulings made.[12] The children have not been in Ms W's care since they were removed on7 March 2014. The custody order pursuant to which the children were uplifted hasnot been challenged. The children have remained in the Chief Executive's custody and, since April 2016, they have been in a whānau placement now regarded by theChief Executive as permanent. The applicant is permitted to have access to the children for one hour each month although, it seems, Ms W has not taken full advantage of her access rights. She informed us she had seen the children last week although she had not seen them for some three months prior to that time. The reasons for that are not clear.[13] Mr Bowe informed us that this matter is to come before the Family Court on 2 December 2016 at which time the Chief Executive will seek an order confirming the placement of the children for day-to-day care purposes. It has not been possible to have a final disposition of the outstanding matters relating to the children because of the appeal rights Ms W has exercised. While she is entitled to exercise theserights, we accept Mr Bowe's submission that it is not in the best interests of the children that the process should be further delayed by the grant of leave to appeal in circumstances where there is little or no prospect of success if leave were granted.4The absence of merit means the application for an extension of time must also be declined.Result[14] The applications for an extension of time and for leave to appeal are both declined. There is no order for costs.Solicitors:Ministry of Social Development Wellington for Respondent4 See in particular ss 5(f), 6 and 13 of the Children, Young Persons, and Their Families Act 1989.