Ministry of Social Development v BK
 NZFC 10716
IN THE FAMILY COURT
AT PALMERSTON NORTH
J F Moss
In the Matter of Child the Application is About: Baby PK, Born [date deleted] 2016
Ms McLean & Ms Kelly for the Ministry
Ms Zabidin for the Father
Ms Lohrey for the Child
Ms Rennie as Counsel to Assist
Family - Application by the Ministry of Social Development (the Ministry) for a declaration that a child, at that point unborn, was a subsequent child under s14(1)(ba) Children, Young Persons and Their Families Act (CYPFA) (A child or young person is in need of care or protection… if… the child is a subsequent child of a parent to whom s18A applies…) — the child was one of four children — the three older children had been removed from their parents — the decision as to the status of the younger child depended on whether there had been a determination made in respect of the older children — it had been intended that they would be returned but at some point that decision changed — there was no hearing on this issue and there only was an annotation in the court file recording the decision — comments on a process by which the Court could confidently say that a person qualified pursuant to s18B(2) CYPFA — whether the Court had determined that there was no realistic prospect of the return home of the older children (s18B(2)(c)) — whether the phrase “kind of harm” in s18A(3) CYPFA, was the harm which led to a declaration application (s18B(2)(a)) or the kind of harm which led to the determination that there was no realistic prospect of the child being returned to that person's care (s18B(2)(c)) — whether these provisions were retrospective, and therefore, on the face of them, limited by s7 Interpretation Act 1999 (Enactments do not have retrospective effect).
EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.
NOTE: PURSUANT TO S 437A OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT-US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING-JUDGMENTS.
The issues were: whether the Court had determined that there was no realistic prospect of the return home of the older children (s18B(2)(c)); whether the phrase “kind of harm” in s18A(3), was the harm which led to a declaration application (s18B(2)(a)) or the kind of harm which led to the determination that there was no realistic prospect of the child being returned to that person's care (18B(2)(c)); whether these provisions were retrospective, and therefore, on the face of them, limited by s7 Interpretation Act 1999 (Enactments do not have retrospective effect).
Held: In order to invoke s 18A, a social worker had to believe on reasonable grounds that the Court had “determined… that there was no realistic prospect that the child or young person would be returned to the person's care.”
An examination of the Court file indicates that there were no communications from the Court to the parents, at that time, indicating that the Court was planning to consider the matter.
The word ‘determine’, and its constituent parts appeared extensively in legislation. Taking guidance from the r 20.19 High Court and r 18.24 District Court Rules, it appeared that determination of a matter could refer to an individual point which, itself, fed into the overall decision. Elsewhere in the CYPFA the term appeared on multiple occasions and appeared to be synonymous with consider and decide. Although in sections related to specific hearing process, the word ‘determine’ appeared in the phrase “hear and determine”, in Parts 2 and 3, with which the Court was concerned here, the term ‘determine’ appeared without the conjunctive “hear”
Because the Court's obligation to review reports and plans, periodically, was to ensure oversight, for the well-being of children, CYPFA specifically limited the Court's obligation to convene a hearing. A balance had to be found between the need to address planning in a time-frame relevant to the child's need, to address planning with the child's needs and the first and foremost need, and the integrity of the principles in the Act relating to involvement of whanau in decision making. The degree to which an opportunity to be heard would be offered would depend on the degree to which a new plan was proposing change in arrangements, or the report was recording a change in the needs of the child or conduct of the parents.
On each occasion where the issue of prospect of return home was considered, a plain reading of the legislation required the conclusion that “determination” was an active decision-making process.
In considering a plan filed under s135 CYPFA the Court's role, as defined in s 137 was to consider the report and plan. Although that consideration had at times been referred to as “approval” this consideration was not synonymous with the term ‘determine’.
The Court did not determine the correctness or adequacy of the statement relating to the prospects of the children returning to the parents' care in undertaking its consideration of the plan and recording whether orders were to continue or not.
Its consideration of the plan not occur in open Court, was not made in the light of the parents' input, and could not be seen as a “determination” of the proposition that there was no realistic prospect of return to the parents' care.
Determination required a specific, clear, and transparent process in which the Court could have some assurance that the parents understand the future implication of the determination sought.
It followed that PK was not a subsequent child, because s18(2)(c) CYPFA was not fulfilled.
The presumption that an enactment did not operate retrospectively had to be subject to consideration of whether that enactment was indeed retrospective. In terms of s 18A-D CYPFA and associated amendments (s14(ba), s130 and s135), the question of retrospectivity was limited to whether a person met the qualifying definition in s18B(2)(c) where a child had been the subject to the qualifying circumstances in s18B(2)(a) and (b), and remained out of the care of that person at the time a s18A assessment was begun. Where a person met the qualifying circumstances in 18B(2)(a) and (b), but a child had then returned home, it was easy to conclude that the factual context established that there was a realistic prospect of return home.
To determine that a child may not return to the home of a former caregiver was a different determination from determining that the child would live, permanently or for life, somewhere else.
Up until 1 July 2016, there had been no significant future consequences, legally, attaching to that moment when the aim for children to be returned home was no longer prosecuted. However, if parents knew that the Court was, in effect, deciding about the parenting of children not yet born, more parents would engage in the legal process, and they would object to any such finding. It also appeared more likely that the Court would examine the grounds upon which the Ministry formed that view. It had been rare for the shift in goal from return home to permanent placement to be adjudicated.
In these particularly sensitive and complex situations, the risk of injustice arising because a parent had not engaged in proceedings at a critical juncture, because of their own incapacity, was high. The consequences of the Court accepting in a routine way that s 18B(2)(c) had been fulfilled where there had not been an adjudicated process were significant and adverse.
Section 18B(2)(c) had retrospective effect which was objectionable based on a combination of these four factors:
• The absence of an adjudicated process at the point that a child's permanent home away from parents was established.
• That parents were typically personally at a very low ebb when that moment occurs.
• That up until 1 July 2016 the parents could not have understood or predicted that the permanency decision would have later ramifications.
• The statute purported to impinge on the rights of children not yet born, which offended the State's obligations pursuant to United Nations Convention on the Rights of the Child.
Thus, a decision for children to live elsewhere made before 1 July 2016 might not be a qualifying determination for the purposes of s 18B(2)(c) unless there had been a fully adjudicated process where the judicial findings and reasoning established that the prime reason for children not being returned home was a risk of continuation of a kind of harm which gave rise to care and protection concerns.
In order to give voice and active purpose to s 18B(2)(c) it was necessary for Ministry and Court practice to develop such that at succeeding reviews, but only probably on one occasion, parents had a well informed real and substantial opportunity to ask the Court to consider and decide the question of a realistic prospect of return home. Unless this process developed, it was difficult to see how the statute would become operational as intended.
The amendment to s 135(4) relating to the reconvening of a Family Group Conference at time of review resulted in a change of practice within the Ministry. Social workers would now be obliged to reconvene the Family Group Conference where there was a change in the goal or purpose, from return home to another structure of care. This would potentially enable the Court to be satisfied that the second limb of s 18B(2)(c) was met. However,...
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