K v B

JurisdictionNew Zealand
CourtSupreme Court
JudgeTipping J,William Young J
Judgment Date08 September 2010
Neutral Citation[2010] NZSC 112
Date08 September 2010
Docket NumberSC 37/2010

[2010] NZSC 112

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 37/2010

Between
K
Appellant
and
B
Respondent
Counsel:

C R Pidgeon QC and R S Pidgeon for Appellant

V A Crawshaw and D J Taylor for Respondent

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).

The issue on appeal was whether the CA misinterpreted s5 Care of Children Act (“COCA”) (principles relevant to child's welfare and best interest), namely whether the CA placed too much emphasis on s5(b) COCA regarding the continuation of a relationship with both parents as being in the best interest and welfare of the children.

Held: The section 5 COCA principles were directed at the paramount consideration of the welfare and best interests of the child. The context provided by s5 COCA made it clear that family relationships, especially those with parents, were relevant and had to be taken into account when assessing the welfare and best interests of the child. Continuity and stability were stressed, both in care and upbringing and in family relationships.

The CA had not erred in pointing to the emphasis in s5(b) COCA on the relationship of the children to both parents. Even if it might have been more accurate for the CA to have acknowledged that the internal emphasis in that subsection was in relation to wider family, s5(b) COCA did express the value to the children of the parental relationship, which was also reflected in s5(a) (parents and should have the primary responsibility… for the child's care…), s5(c) (child's care, development, and upbringing should be facilitated by ongoing consultation and co-operation among and between the child's parents), s5(d) (relationships between the child and members of his or her family should be preserved and strengthened) and arguably s5(f) (child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened). The importance of the child-parent relationship was also seen throughout the COCA.

The CA judgment had not suggested that the principle in s5(b) COCA which recognised the importance of the parental relationship was more important that the other principles in s5 COCA. It seemed unlikely that the judgment was intended to contradict the general proposition that s5 principles were not ranked and that no one principle had greater weight than another. The CA' view that it was necessary to identify and weigh all principles in a highly individualised assessment did not suggest priority between the identified principles or an error in approach.

In a case where one parent proposed to take a child to live at a distance from the other parent, the statutory context provided by s5 COCA in practice required consideration of whether the relationship with the other parent would be disrupted of adversely affected. If so, and depending on the degree of disruption or adverse affect, it was likely that there would have to be other factors which could permit the conclusion that, notwithstanding the disruption of the relationship, the welfare and best interests of the child favoured the change.

It was clear that the CA had come to an intensely contextual assessment (after consideration of all relevant principles) that the best interests of the children were served by not disrupting the shared parenting arrangements and the contact between the father and children. The shared parenting had been in place for approximately three years before the CA hearing. Before that, the elder daughter had been cared for by the father and his wife while the mother had been in Australia with the younger daughter. The elder daughter's strong links to her paternal family and the relationship of the younger daughter which was developing with that family were also properly weighed by the CA. The CA had held that the avoidance of conflict between the parents and the greater support the mother would have had in Australia did not overcome the disruption on the relationship with the father. It assessed the conflict between the parents as one that could be expected over time to reduce and that the mother would be able to overcome any personal difficulties to facilitate her daughter's best interests. On balance the children's interests were best served by remaining in New Zealand.

Appeal dismissed. There had been no error in the CA's approach or reasoning.

  • 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...

To continue reading

Request your trial
412 cases
  • Prospective Adopters v SA (father) (1st Respondent) TB (mother) (by the Official solicitor) (2nd Respondent) A London Borough (3rd Respondent) SSM (child) (by his children's guardian) (4th Respondent)
    • United Kingdom
    • Family Division
    • 17 February 2015
    ...rather than the exercise of a "discretion" is demonstrated by the decision of the Supreme Court of New Zealand in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, [2010] NZFLR 884, a relocation case, at paras 32 and 35, and by the seminal decision of Re B-S (Children) [2013] EWCA Civ 1146 [......
  • Minister of Justice v Kyung Yup Kim
    • New Zealand
    • Supreme Court
    • 4 June 2021
    ...under s 18, and the provisions of the Act apply so far as applicable and with the necessary modifications. 5 Section 24. 6 Section 30. 7 Re Kim DC Auckland CRI-2011-004-11056, 29 November 2013 [DC eligibility judgment]. Judge Gibson was satisfied, as required by s 24(2), that the supporting......
  • Melanie Ann Clayton v Mark Arnold Clayton
    • New Zealand
    • Supreme Court
    • 23 March 2016
    ...the Trust was settled, this meant that the parties' expectations were different from those found by the courts below. 50Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]. In that case this Court said that, in appeals against a decision made in the exercise of a discretion, an appellan......
  • Robinson v Robinson
    • New Zealand
    • High Court
    • 22 July 2020
    ...provisions of the Convention is designed to ensure that the outcome does serve the interests of the particular child. As Baroness Hale said in Re D: … No one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction s......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT