Ministry of Social Development v BK

• Jurisdiction: New Zealand
• Judge: J F Moss
• Judgment Date: 14 December 2016
• Court: Family Court
• Docket Number: FAM-2014-054-000208
• Date: 14 December 2016

In the Matter of Child the Application is About: Baby PK, Born [date deleted] 2016

Between

Ministry of Social Development

Applicant

and

BK

MR

Respondents

[2016] NZFC 10716

J F Moss

FAM-2014-054-000208

IN THE FAMILY COURT

AT PALMERSTON NORTH

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).

Appearances:

Ms McLean & Ms Kelly for the Ministry

Ms Zabidin for the Father

Ms Lohrey for the Child

Ms Rennie as Counsel to Assist

RESERVED JUDGMENT OF JUDGE J F Moss [as to whether PK is a “subsequent child”]

1 PK was born on [date deleted], almost three weeks premature. She is the fourth child of these parents. The other children do not live with their parents. They have been living with their paternal grandmother, although that placement will soon change. The older three children were removed from the care of their parents in 2014. Some time around February 2016 the goal for the children to return to their parents care changed. The plans and reports in July 2015 record the aspiration for the children to return to their parents care. The February 2016 plan recorded a new goal. No explanation was given. There was no record in the report of the failure of the previous goal. One memorandum by Lawyer for Child records that there was a review meeting in January which the parents attended where it was decided that the children would remain permanently with their paternal grandmother.

2 The Family Group Conference history for the children records in July 2014 that the primary goal was to return to parents and on 2 December 2016 the goal had changed. There were no Family Group Conferences between those two dates.

3 On no occasion during the course of the proceedings, which included the making of a declaration in July 2014, disposition orders then, and in February 2015, July 2015, February 2016 and October 2016, did the Court convene in the presence of the parents. On the first occasion (July 2014) when the declaration was made the parents were represented, but have not been since then. No consents appear on the Court file.

4 The plans filed in August 2016 for the older children record under the heading Purpose of Plan:

Is there a realistic possibility of return to the care of BK and or MR (person/s who previously had the care).

No.

This plan is prepared on the basis there is no realistic possibility of return home. The purpose of this plan is to outline the child's long-term needs (including care arrangements) and how these will be met.

Once the plans were served and once lawyer for child reported, the plans were considered by a Judge in chambers, as is the usual process. The Judge continued the existing orders, and made no comment about the plan.

5 At about that time the Ministry applied for a declaration under s 14(1)(ba) Children, Young Persons and Their Families Act (CYPFA). The Ministry sought a declaration on the basis that the child, at that point unborn, was a subsequent child.

6 The assessment required under s 18A CYPFA was completed on 7 October 2016, and the application for declaration made the same day.

7 The issue for the Court's consideration is whether the grounds set in s 14(1)(ba) are available. This requires a finding that the parents are persons to whom s 18B applies, and that the social workers assessment completed under s 18A establishes that the parent is not unlikely to inflict on a subsequent child the kind of harm which led to the earlier classification as a s18B parent.

8 Because there have been few reasoned decisions in relation to this new legislation, I appointed Counsel to Assist the Court with a view to determining whether, at the outset, the Ministry could satisfy the Court that this child is a “subsequent child”.

9 All counsel included in their submissions before me the proposition that this legislation is difficult, and the meaning is not clear.

10 However, the Court is obliged to implement the legislation, and for this reason it is necessary to analyse with care the steps which the Court must take.

11 In summary, where a child is born to parents or a parent who has had a child removed from their care on a permanent basis, the Ministry must apply for a Declaration that the new child is in need of care and protection. The Court must then make the Declaration. The exception to each obligation is where the social worker on the one hand or the Court on the other, is satisfied that the parent is unlikely to inflict harm to the new child.

12 The detailed focus in this initial procedure is on the close reading of the legislation, on deciding whether the parents are persons to whom s 18B(2) applies.

13 The relevant sections read:

14 Definition of child or young person in need of care or protection

• (1) A child or young person is in need of care or protection within the meaning of this Part if—

  • (ba) the child is a subsequent child of a parent to whom section 18A applies, and the parent has not demonstrated to the satisfaction of a social worker (under section 18A) or the court (under section 18C) that he or she meets the requirements of section 18A(3); or

18 A Assessment of parent of subsequent child

• (1) This section applies to a person who—

  • (a) is a person described in section 18B; and

  • (b) is the parent of a subsequent child; and

  • (c) has, or is likely to have, the care or custody of the subsequent child; and

  • (d) is not a person to whom subsection (7) applies.

• (2) If a social worker believes on reasonable grounds that a person is a person to whom this section applies, the social worker must, after informing the person (where practicable) that he or she is to be assessed under this section, assess whether the person meets the requirements of subsection (3) in respect of the subsequent child.

• (3) A person meets the requirements of this subsection if,—

  • (a) in a case where the parent's own act or omission led to him or her being a person described in section 18B, the parent is unlikely to inflict on the subsequent child the kind of harm that led to the parent being so described; or

  • (b) in any other case, the parent is unlikely to allow the kind of harm that led to the parent being a person described in section 18B to be inflicted on the subsequent child.

• (4) Following the assessment,—

  • (a) if subsection (5) applies, the social worker must apply for a declaration under section 67 that the subsequent child is in need of care or protection on the ground in section 14(1)(ba); or

  • (b) in any other case, the social worker must decide not to apply as described in paragraph (a), and must instead apply under section 18C for confirmation of the decision not to apply under section 67.

• (5) The social worker must apply as described in subsection (4)(a) if the social worker is not satisfied that the person, following assessment under this section, has demonstrated that he or she meets the requirements of subsection (3).

• (6) No family group conference need be held before any application referred to in subsection (4) is made to the court, and nothing in section 70 applies.

• (7) This subsection applies to the parent of a subsequent child if, since he or she last became a person described in section 18B,—

  • (a) the parent has been assessed under this section by a social worker in relation to a subsequent child and, following that assessment,—

    • (i) the court has confirmed, under section 18C, a decision made under subsection (4)(b); or

    • (ii) the social worker applied for a declaration under section 67 that the child was in need of care or protection on the ground in section 14(1)(ba), but the application was refused on the ground that the court was satisfied that the parent had demonstrated that he or she met the requirements of subsection (3); or

  • (b) the parent was, before this section came into force, subject to an investigation carried out by a social worker under section 17 in relation to a child who would, at that time, have fallen within the definition of a subsequent child, and the social worker did not at that time form the belief that the child was in need of care or protection...