K v B

• Jurisdiction: New Zealand
• Judge: Tipping J,William Young J
• Judgment Date: 08 September 2010
• Neutral Citation: [2010] NZSC 112
• Docket Number: SC 37/2010
• Court: Supreme Court
• Date: 08 September 2010

Between

K

Appellant

and

B

Respondent

[2010] NZSC 112

Court:

Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 37/2010

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against a Court of Appeal decision declining K permission to relocate with the parties' children to Australia — the respondent (B) would have difficulty visiting Australia because of his immigration status there — whether the Court of Appeal erred by misinterpreting the principles relating to the child's best interest and welfare under s5 Care of Children Act 2004 (principles relevant to child's welfare and best interests) by ascribing different weighting to the various principles which the Act identified as mandatory considerations — whether the Court of Appeal erred by placing too much emphasis on the principle of continuity of care and stability of relationships with both parents under s5(b).

Counsel:

C R Pidgeon QC and R S Pidgeon for Appellant

V A Crawshaw and D J Taylor for Respondent

• A The appeal is dismissed.

• B The case may be cited, as in the Court of Appeal, as Kacem v Bashir.

JUDGMENT OF THE COURT

REASONS

	Para No
Elias CJ	[1]
Blanchard, Tipping and McGrath JJ	[12]
William Young J	[46]

ELIAS CJ

1 The appeal concerns a dispute between parents of two young girls about whether their mother should have their care and be permitted to live in Australia when the father of the children lives in New Zealand and may have difficulty in visiting Australia because of his immigration status there. In holding that the children should continue to live in New Zealand, under shared parenting orders made in the Family Court, 1 the Court of Appeal 2 correctly addressed the welfare and best interests of the children in the manner required by the Care of Children Act 2004. 3 Its determination that their interests would be better served by continuing the shared parenting arrangements between the parents and by their continuing to live in New Zealand was not tainted by error of law and was not shown on appeal to be wrong. I agree with other members of the Court that the appeal must be dismissed. Whereas Blanchard, Tipping and McGrath JJ reach that conclusion on the basis that the Court of Appeal's error in interpretation of s 5 of the Act was not material, I consider that it did not misinterpret s 5 or misapply the Act.

No misinterpretation of s 5

2 Section 5 of the Care of Children Act 2004 provides:

5 Principles relevant to child's welfare and best interests

The principles referred to in section 4(5)(b) are as follows:

• (a) the child's parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child's care, development, and upbringing:

• (b) there should be continuity in arrangements for the child's care, development, and upbringing, and the child's relationships with his or her family, family group, whanau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents):

• (c) the child's care, development, and upbringing should be facilitated by ongoing consultation and co-operation among and between the child's parents and guardians and all persons exercising the role of

  providing day-to-day care for, or entitled to have contact with, the child:

• (d) relationships between the child and members of his or her family, family group, whanau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child's care, development, and upbringing:

• (e) the child's safety must be protected and, in particular, he or she must be protected from all forms of violence (whether by members of his or her family, family group, whanau, hapu, or iwi, or by other persons):

• (f) the child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

3 The s 5 principles are all directed at the paramount consideration of the welfare and best interests of the child. 4 Section 5 was introduced into the Care of Children Bill following recommendation of the Justice and Electoral Committee of the House. 5 It recommended “guiding principles” to fill a perceived gap in the Bill as introduced, which had given “little indication of the context within which the principle of the best interests of the child should be assessed”. 6 The Committee acknowledged that the principles drew on a number of the articles of the United Nations Convention on the Rights of the Child. It said of the recommended principles: 7

The order in which the principles appear does not affect the weight to be given to them.

The guiding principles encourage the child's parents and guardians to agree to their own arrangements for the child's care, development, and upbringing, wherever possible. We consider the child's parents and guardians should have the primary responsibility in these areas, and that efforts should be made to come to arrangements about the care of children within those families themselves. The principles are also structured in recognition of the fact that an integral part of the context of a child's best interests is the child's family and culture, which may include members of the child's wider family.

4 The context provided by s 5 makes it clear that family relationships, especially those with parents, are relevant and must be taken into account in

assessing the welfare and best interests of the child. 8 Continuity and stability are stressed, both in care and upbringing and in family relationships. These principles apply also in cases where the care of a child is not undertaken by a parent: s 5(b) looks to continuity in arrangements for the child's care, development, and upbringing and recognises that the child's relationships with family “should be stable and ongoing”. It is in respect of this recognition of stable and ongoing family relationships that the subsection indicates that, “in particular, the child should have continuing relationships with both of his or her parents”

5 The s 5 principles are important legislative reminders to decision-makers (parents, guardians, and courts) of the context in which the paramount consideration of the welfare and best interests of the particular child must be considered. The principles identified are not entirely distinct. Some stress different aspects of themes to be found in other principles and in the other provisions of the Act. Within s 5 there are expressions of emphasis as well as identification of matters to be considered.

6 In this Court counsel for the mother argued that the Court of Appeal had misinterpreted s 5 of the Care of Children Act by ascribing different weighting to the various principles the section identifies as mandatory considerations, if relevant, in the assessment of the child's welfare and best interests. The submission is based upon the emphasised passages in [50]–[52] of the decision of the Court of Appeal:

• [50] Section 4(5)(b) provides that, in determining what best serves a child's welfare and best interests, a court must take into account any of the s 5 principles “that are relevant to the welfare and best interests of the particular child in his or her particular circumstances”. This wording indicates that a court should consider each of the s 5 principles to determine whether it is relevant and, having identified those principles that are relevant, should take account of them in determining the best interests of the child. Because the analysis must be undertaken in the context of the circumstances of the particular case, the court must evaluate how the relevant principles should be taken into account – the assessment is a highly individualised one which cannot be undertaken in a formulaic way.

• [51] It is sometimes said that the s 5 principles do not create any presumption and that no one factor has any greater weight than any other. We consider that such statements require some qualification to reflect the fact that first, the wording of s 5(e) makes it clear that protection of a child's

  safety is mandatory and second, the wording of s 5(b) gives particular emphasis to the maintenance of continuing relationships with both parents. As we see it, this means that there is some priority or weighting as between the various principles.

• [52] What s 5 does, then, is provide a structure or framework for consideration of what best serves a child's welfare and best interests, with a partial indication of weighting as between principles. While the principles are not exhaustive, s 5 should assist in achieving some degree of consistency and transparency in decision-making, as well as promoting informed decision-making. But that cannot disguise the fact that the assessment is an evaluative one, involving the identification and weighing of all factors (whether referred to in s 5 or not) relevant to the particular case. These include, of course, the views of the affected child. (emphasis added and footnotes omitted)

7 I do not think the Court of Appeal was in error in pointing to the emphasis in s 5(b) on the relationship of the child to both parents. Even if it might have been more accurate in [51] of its judgment for the Court to have acknowledged that the internal emphasis in that subsection is in relation to wider family, s 5(b) does express the value to the child of the parental relationship, which is also reflected in s 5(a) (primary responsibility of parents and guardians for the child's care, development, and upbringing), s 5(c) (facilitation of co-operation between parents and guardians and those exercising day-to-day care), s 5(d) (preserving and strengthening family relationships), and arguably s 5(f) (if the parental connection is seen as important to the child's identity). The importance of the child-parent...