NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER
INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2019-404-002712
[2020] NZHC 1129	

BETWEEN	SLB
Appellant	
AND	MINISTRY FOR CHILDREN, ORANGA TAMARIKI
Respondent	

Hearing:	13 May 2020	
Appearances:	C Muston for Appellant R Bowe for Respondent
D Amodeo and S Berkman as counsel for the Child	
Judgment:	26 May 2020	

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 26 May 2020 at 4.30 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
C Muston, Whangarei,
Oranga Tamariki Legal Services, Wellington D Amodeo, Auckland

SLB v MINISTRY FOR CHILDREN, ORANGA TAMARIKI [2020] NZHC 1129 [26 May 2020]

Introduction

[1]	The appellant, SLB, appeals a decision given by Judge Rogers in the Family Court at Manukau on 18 November 2019 declaring that SLB’s daughter, S, is a child in need of care and protection pursuant to s 14(1)(a) and (b) of the Oranga Tamariki Act 1989 (the Act).1

[2]	SLB seeks that the declaration should be set aside so that S can be returned to her care.

[3]	The respondent, the Chief Executive of Oranga Tamariki – Ministry for Children (the Chief Executive) supports Judge Roger’s decision and opposes the appeal.

Background

[4]	S was born to SLB in Whangārei on 19 October 2015. S’s father and SLB are no longer in a relationship, and S’s father has taken no part in these proceedings.

[5]	Prior to S’s birth, SLB’s midwife expressed concern about S’s safety once born. The midwife had only just taken over the care of SLB (because SLB had refused to engage with a previous midwife) but she quickly became concerned about SLB’s capacity to parent.2

[6]	On 19 October 2015, a whānau hui was held with SLB, her mother, social workers and others, and the midwife. A safety plan was set up to support SLB in parenting S, with 24/7 supervision and with the involvement of support services.

[7]	On 23 October 2015, a meeting was held at the Whangārei Base Hospital Maternity Ward between SLB, her mother and the hospital social worker to discuss ongoing concerns about SLB and the wellbeing and safety of S.3

1	Chief Executive of Oranga Tamariki – Ministry for Children v SLB [2019] NZFC 9468.
2	See below at [51].
3	See below at [52].

[8]	SLB and S were discharged from hospital and it seems that the transition from hospital to home went smoothly. SLB’s mother moved to Whangārei to assist and she, SLB and S moved into the same property. SLB agreed to undertake a maternal mental health assessment in order to get the appropriate support.

[9]	Shortly thereafter, S developed an eye infection. SLB refused to accept the tailored advice given to her and relied instead on generic sources, such as the Plunket Helpline, and online research, to inform her decision-making.

[10]	On 26 November 2015, another whānau hui was held.

[11]	On 29 December 2015, the Chief Executive received a confidential report from a family member who was concerned about matters.4 SLB was then referred to Northland Community Mental Health and Addiction Services. She was assessed in January 2016 by a counsellor, Ms Airini Mataara. Ms Mataara expressed concern about S’s safety.5

[12]	On 12 May 2016, a psychologist, Ms Tina Besson, prepared a report on SLB. In short, she considered that it was probable that S’s emotional and psychological development would be compromised over time due to SLB’s below average cognitive functioning.6

[13]	A family group conference was held in June 2016. No agreements could be reached. The conference was reconvened in July 2016, but again no agreements were reached.

[14]	In August 2016, a family whānau agreement was entered into. It was agreed that S would be placed into the care of maternal family members, a Mr and Mrs D. As a result, S began living with Mr and Mrs D on 15 October 2016, just before she turned one year old. She remained in their care and they filed applications for parenting orders under the Care of Children Act 2004. However, on 11 October 2017, Mr and Mrs D advised the Chief Executive that they were no longer willing to care for S,

4	See below at [54].
5	See below at [55].
6	See below at [56]-[57].

because of what they considered was SLB’s constant harassment. They advised that their care of S would have to conclude as from 15 January 2018.

[15]	As a result, on 9 January 2018, the Chief Executive applied for a declaration that S was in need of care and protection on the grounds set out in s 14(1)(a) and (b) of the Act as it then stood.7 At the same time, the Chief Executive also applied without notice for a custody order in respect of S under s 78 of the Act pending determination of the declaration application. The applications were accompanied by extensive affidavit evidence.

[16]	An interim custody order was made under s 78 on 10 January 2018 by Judge Lindsay. She issued a minute in the following terms:8

There is a pattern of maternal neglectful care of [S] which may cause the child hardship or psychological harm. There were concerns as to mother’s understanding and ability to meet [S’s] care which led to her placement with the [Ds]. Those concerns remain. Since [S] has been placed in the care of [Ds] mother’s persistent and unwanted contact with them has undermined the placement. It is evident from the social worker’s affidavit evidence alternative means of resolving [S’s] care have been exhausted and an interim custody order is necessary.

[17]	After she left Mr and Mrs D’s care, S was initially placed with non-kin caregivers near Auckland. Since 22 June 2018, she has been living in the Wellington region with family members, namely SLB’s cousin and her partner.

[18]	There have since been a number of reports and assessments undertaken, both of SLB and S. I discuss this material shortly.9

[19]	SLB opposed the Chief Executive’s application for a declaration. She gave notice of her intention to appear and she filed affidavits in support and in reply to the affidavits filed by the Chief Executive. She disputed many matters asserted by the Chief Executive, but accepted the Chief Executive’s position on some issues. However, when the declaration application came to a hearing, SLB was firmly opposed to any order being made.

7	Section 14 was amended, as from 1 July 2019 – Children, Young Persons and Their Families (Oranga Tamariki) Legislation Act 2017, s 17.
8	Minute dated 10/1/18 – FAM-2019-057-000005.
9	See below at [59]-[68].

[20]	The matter was heard over two days in May and September 2019. Judge Rogers issued her judgment on 18 November 2019.

Family Court decision

[21]	Judge Rogers started by outlining the background to the matter, much as set out above. She noted that S’s removal from her placement with Mr and Mrs D had been extremely difficult for her, referring both to a social worker’s report in this regard and to a Gateway Assessment, which noted that S was displaying signs of inappropriate attachment and anxiety as a result of the removal. The Judge also noted that since S has been placed with SLB’s cousin and her partner, there have been improvements in her assessments. It was noted however that this care arrangement was coming under pressure, because of SLB’s manner and the frequency of her interaction with the caregivers. The Judge nevertheless noted that SLB, in one of her affidavits filed in support of her notice of intention to appear, recorded that, while she did not agree with the caregivers’ positions in some respects, she did not want to see S’s care disrupted. The Judge also recorded that SLB in her evidence at the hearing acknowledged that she did not think it likely that S would be coming back to her care for some time, that S has complex long-term needs and that support and assistance will be required to deal with those needs. The Judge noted that SLB is however confident that she can parent S with support networks in place.

[22]	The Judge recorded her view that these acknowledgements were inconsistent with SLB’s opposition to the making of the declaration, because the absence of a declaration “would remove access to any support from Oranga Tamariki”, and SLB would become responsible for organising the support network herself.10

[23]	The Judge recorded that it was her obligation to make a fact specific decision in relation to S. She also referred to s 73(1) of the Act, which precludes the Court from making a declaration unless it is satisfied that it is not practicable or appropriate to provide care and protection for a child by any other means. She noted that SLB had not proposed any alternative arrangements or care plan, nor advanced any other proposal for S’s care. Rather, SLB was simply seeking removal of S from her current

10	Chief Executive of Oranga Tamariki – Ministry for Children v SLB, above n 1, at [18].

caregivers, and S’s return to her. To this end, SLB was arguing that the Chief Executive had failed to establish on the balance of probabilities that she lacked the capacity to understand and therefore promote S’s welfare.

[24]	The Judge acknowledged that SLB has undertaken parenting courses, but she considered that what is still lacking is any evidence of an ability to apply what she has learnt. The Judge accepted that, in part, this is because SLB has not had the opportunity to demonstrate her parenting abilities, and she accepted that it is important not to assume a deficit in ability simply because of the lack of opportunity. The Judge noted however evidence to the effect that SLB faces personal challenges that impact on her ability to care for any child, let alone a child with identified special needs who has not been in SLB’s care since she was one year old. The Judge noted SLB’s argument that there is no evidence that S suffered harm at her hands before the family agreement entered into in August 2018. She did not accept this argument, recording that there is extensive evidence of concerns on the part of professionals and family members as to SLB’s parenting capacities at the time; indeed, the Judge considered that the fact that S left SLB’s care was a direct consequence of those concerns. The Judge did not accept that the decision to place S with Mr and Mrs D was made in the absence of any issues as to SLB’s parenting abilities.

[25]	The Judge accepted the paediatric assessments that S’s care history has been emotionally harmful to her, and that her emotional wellbeing has been impaired. The Judge also held that there is no evidence to show that a return to SLB’s care would not again be destabilising. She expressed the view that S has already been harmed and that she cannot be the subject of any trial or experimentation. The Judge noted that there is no evidence sufficient to satisfy her that SLB is capable of ensuring the stable, secure, sensitive and long-term care that S requires. She noted that even though SLB is optimistic as to her parenting abilities, SLB acknowledges her need for help and support.

[26]	In summary, the Judge was satisfied that, at the time the application for a declaration was filed, S was in need of care and protection under both s 14(1)(a) and (b). Concerns as to SLB’s parenting abilities have not been reduced by the information that has since come to hand. While SLB’s case was advanced on the basis that the

declaration should be declined and that S should be returned to her, there was no plan to manage that transition and there were no formal or family supports in place for either SLB or S. The Judge considered that to return S to her mother’s care “without further ado” would present a high risk of further emotional harm to S and impair her development. Accordingly, she granted the application for declaration. She also directed the Chief Executive to file an updated social worker’s report and plan within 28 days.

The appeal

[27]	The appeal is brought pursuant to s 341(1) of the Act. Pursuant to s 346, the High Court Rules 2016 and ss 126 to 129 of the District Courts Act 2016 apply to the appeal.

[28]	Pursuant to r 20.18 of the High Court Rules and s 127 of the District Courts Act, the appeal is by way of rehearing, and it was common ground that the approach mandated for general appeals by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar applied.11 As the Chief Justice there noted:
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.29 In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[29]	It was also common ground that the onus was on SLB as the appellant to identify those aspects of the judgment under appeal which were said to be in error and counsel accepted that, unless error can be identified, this Court should not intervene.12 Counsel also accepted that no deference was required for the decision made by the Family Court, beyond the customary caution appropriate when seeing the witnesses

11	Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
12	At [13]; Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].

provides an advantage because credibility was important.13 It was however acknowledged that this Court can take into account that the Family Court is a specialist jurisdiction, with expertise in its particular area.14

[30]	Pursuant to r 20.19 and s 128 of the District Courts Act, after hearing the appeal, this Court can make any decision it thinks should have been made by the Family Court, direct the Family Court to rehear the proceedings or to consider or determine any matters this Court directs, or make any further or other order that the Court thinks just. It was accepted that these powers could be exercised in favour of the Chief Executive, even though the Chief Executive did not appeal.15

Submissions

[31]	Mr Muston, appearing for SLB, emphasised that his client had care of S for the first year of her life. He submitted that there was nothing to suggest that the care then provided to S was inadequate, and that the problems which have arisen have only developed since she left her mother’s care. He accepted the various comments made by the psychologist, Ms Person, about SLB’s limited parenting abilities, but argued that SLB did not harm S. Rather, he suggested that what is being claimed by the Chief Executive is that SLB is incapable of caring for S. He argued that there has to be evidence of harm in the past, or of likely harm in the future, if a declaration is to be made, and that here there is no such evidence – simply prospective concern. He referred to the judgments of Durie J in C & C v Chief Executive of the Department of Child, Youth and Family Services,16 and Anderson J in E v Department of Social Welfare.17 He argued that the evidence before the Family Court did not establish that SLB has failed, or will fail, to exercise the obligations of parenthood. He placed emphasis on art 19 of the United Nations Convention on the Rights of the Child.18 He

13	Austin, Nichols & Co Inc v Stichting Lodestar, above n 5, at [13]; And see Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 199.
14	D v S [2003] NZFLR 81 (CA) at [18].
15	High Court Rules 2016, r 20.19(6); District Courts Act 2016, s 128(6).
16	C and C v Chief Executive of the Department of Child, Youth and Family Services [2003] NZFLR 643 (HC).
17	E v Department of Social Welfare [1989] 5 FRNZ 332 (HC).
18	United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature on 20 November 1989, entered into force 2 September 1990).

suggested that if this Court has concerns for S’s ongoing welfare, one course open to the Court would be to set aside the declaration, but make S a ward of Court.

[32]	Mr Bowe, for the Chief Executive, referred to s 14(1)(a) and (b) of the Act, and noted that each refers to both actual or likely harm. He submitted that the Chief Executive did not have to prove that SLB consciously harmed or neglected S, and further that the Chief Executive did not have to prove that SLB was culpable. He argued that the Chief Executive simply had to satisfy the Family Court, on the balance of probabilities, that S was in need of care or protection on any of the grounds specified in s 14(1). He argued that there was ample evidence to enable the Family Court to be so satisfied and that there was no error either in law or in fact in the Family Court’s decision. He referred to S’s welfare and best interests, emphasised that this was the first and paramount consideration, and submitted that the declaration was properly made. He noted that if the Court were to find that S was not in need of care and protection, the Chief Executive would no longer have any role in ensuring S’s safe care because the interim s 78 custody order would also go, this Court having found that S is not in need of care and protection. As a result, he observed that there would be nothing to prevent SLB from demanding that S should be immediately returned to her care. He argued that, on the available materials, S would not be safe in SLB’s care. He submitted that the Court should uphold Judge Roger’s decision and dismiss the appeal.

[33]	Mr Amodeo, as counsel for the child, also emphasised s 6 of the Act as it stood at the relevant time, referring to the welfare and best interests of the child. He argued that the appeal falls to be determined on the basis of an objective assessment of S and of her particular circumstances and situation. He submitted that the evidence before the Family Court clearly established, on the balance of probabilities, that S was in need of care and protection on the grounds set out in s 14(1)(a) and (b) of the Act. He further submitted that the Family Court could not be satisfied that SLB, who would otherwise have S’s care, would be capable of ensuring that the kind of harm suffered in the past would be neither continued nor repeated. He put it to me that the decision of the Family Court was correct and that it should be upheld.

Analysis

Applicable provisions

[34]	The application for the declaration was made pursuant to s 68 of the Act and in reliance on s 14(1)(a) and (b). As they stood at the relevant time, s 14(1)(a) and (b) read as follows:

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 –

(a)	the child or young person is being, or is likely to be, harmed (whether physically or emotionally or sexually), ill-treated, abused, or seriously deprived; or

(b)	the child’s or young person’s development or physical or mental or emotional well-being is being, or is likely to be, impaired or neglected, and that impairment or neglect is, or is likely to be, serious and avoidable; or

…

[35]	As noted above, this provision was amended as from 1 July 2019. There are however transitional provisions.19 Relevantly, schedule 1AA, part 3, cl 7(2) provides that s 14 (as it read before the Amendment Act came into force) continues to apply to any proceeding that, immediately before the commencement date, had been brought but not determined. Further cl 11(2) provides that an application for a declaration made under s 68 before the commencement date falls to be determined under s 68 and any related provisions as those provisions read before the commencement date.

[36]	This appeal relates to proceedings issued on 9 January 2018 by the Chief Executive, and it was common ground that the appeal should be considered on the basis of the law as it stood before 1 July 2019.

The statutory framework

[37]	The object of the Act as it stood at the time was to promote the wellbeing of children and young persons and, inter alia, to protect them from harm.20  Section 6

19	Oranga Tamariki Act 1989, s 2A.
20	Section 4(d) and (e).

(since repealed) required that, in all matters relating to the administration and application of the Act, the welfare and interests of the child were to be the first and paramount consideration, having regard to the principles set out in ss 5 and 13. Section 5 required the Court to be guided by a number of principles, including, wherever possible, that a child’s family, whānau, hapū, iwi and family group should participate in the making of decisions affecting the child,21 that the relationship between a child and his or her family, whānau, hapū, iwi and family group should be maintained and strengthened,22 and that consideration be given to how a decision affecting a child will affect the welfare of that child and the stability of that child’s family, whānau, hapū, iwi and family group.23 Section 13(1) repeated the s 6 requirement that the Court adopt, as the first and paramount consideration, the welfare and interests of the child. It went on to provide that, in determining the welfare and interests of the child, the Court should be guided by the principle that children must be protected from harm, and have their rights upheld; that intervention into family life should, however, be the minimum necessary to ensure a child’s safety and protection,24 that a child should live in association with his or her family, whānau, hapū, iwi and family group,25 and that where a child is considered to be in need of protection, wherever practicable, the necessary assistance and support should be provided to enable the child to be cared for and protected within his or her family, whānau, hapū, iwi and family group.26

[38]	The various principles set out in the Act reflect New Zealand’s obligations under the United Nations Convention on the Rights of the Child, in particular art 3, which requires that, in all actions concerning children, the best interests of the child are the primary consideration, and the rights contained in other articles, in particular arts 7, 8, 9 and 18. There is a broad presumption that a child should be brought up by his or her parent, but that presumption is subject to the first and paramount consideration – namely the child’s welfare and interests. If the child’s best interests indicate that he or she should be removed from the parent’s care, then that can happen

21	Section 5(a).
22	Section 5(b).
23	Section 5(c).
24	Section 13(2)(b)(ii).
25	Section 13(2)(c).
26	Section 13(2)(d).

but the child must be given the opportunity maintain a relationship with his or her parent in a meaningful way, unless that is contrary to the child’s interests.27

[39]	There was no dispute that SLB has been given the opportunity to maintain a relationship with S. SLB would like better access if S cannot be returned to her care, but at present she has access to S every fortnight by Skype. She has supervised face- to-face access every other month, and as Mr Muston noted, the Chief Executive has met SLB’s airfares so she can travel to visit S. SLB can also send letters and the like to S via her assigned social worker.

Care and protection/Declarations under s 14

[40]	Very broadly, the care and protection regime in the Act was divided into three stages:

(a)	a declaration that the child or young person was in need of care and protection under s 14;

(b)	disposition under s 83, which permitted the Court to make various orders, such as restraining orders, support orders and custody orders once a declaration had been made; and

(c)	periodic review, permitting the variation and discharge of orders made.

[41]	This case concerns the first stage – the making of a declaration under s 14.

[42]	An application for a declaration that a child or young person was in need of care and protection could be made by the Chief Executive,28 but no application could be made unless a family group conference had first been held.29 There was however an exception where, as here, an application for a custody order under s 78 was made at the same time and the applicant believed that the interests of the child in respect of

27	And see, Director General of Social Welfare v G 14 FRNZ 23.
28	Section 68(a).
29	Section 70.

whom the application was made, required that a custody order be granted as a matter of urgency.30

[43]	In the present case, family group conferences were held in June and July 2016 and again on 26 April 2018. The latter conference was adjourned to 11 May 2018. When it resumed, agreement could not be reached. There is however nothing in the Act to suggest that failure to reach an agreement is a barrier to the making of a declaration, and logically that cannot have been Parliament’s intention, otherwise making declarations in appropriate cases would have been frustrated.

[44]	The Family Court’s power to make the declaration sought by the Chief Executive was contained in s 67(1). It provided that the Court could, on application, and where it was satisfied that any of the grounds specified in s 14(1) applied, make a declaration that a child or young person was in need of care or protection. The Court could not however make a declaration under s 67(1) unless a family group conference had been held.31 Further, the Court was not to make a declaration unless it was satisfied that it was not practicable or appropriate to provide care or protection for the child or young person by any other means.32 In deciding whether or not to make a declaration that a child or young person was in need of care or protection on any of the grounds specified in paragraph (a) or paragraph (b) of section 14(1), the court was required to take into account, among other things, any evidence before the court:33

(a)	that the kind of harm suffered by the child or young person would neither continue nor be repeated; and

(b)	that the parent or guardian or other person having the care of the child or young person would be capable of ensuring that the kind of harm suffered by the child or young person would be neither continued nor repeated.

30	Section 70(2)(ba).
31	Section 72(1).
32	Section 73.
33	Section 73(2).

[45]	The Courts held that s 14 justified intervention in a family’s autonomy only where the child’s care had fallen or was likely to fall below the normal standards acceptable in the community. As Anderson J noted in E v Department of Social Welfare:34
State intervention is not justified by the prospect of improving a child’s care but by inadequate care which, having regard to the diversity of our New Zealand culture and its broad range of parenting approaches and abilities, is clearly unacceptable. The principle imports a consideration of the minimum community standards of parental compliance such that the state should not intervene unless the parental care has been proven to be unacceptably incompetent.

The harm or likelihood of harm specified in s 14 had to be proved on the balance of probabilities, and be of sufficient degree to justify or warrant the Court’s intervention by the making of a declaration.35 However, once seized of an application, the Court was able to make a declaration on the basis of any of the grounds set out in s 14(1) that was supported by the evidence.36

[46]	The words “is being”, used in s 14(1)(a) and (b) denoted a continuous state of affairs, and the Courts held that a single incident of harm could not by itself establish that a child was being harmed.37 The words “is likely to be” were held in the United Kingdom, to mean “a real possibility, a possibility that cannot sensibly be ignored having regard to the gravity of the feared harm in the particular case”.38 It was held  in this country that the test was “likely, on the balance of probabilities, to be harmed”.39 Despite current care being adequate, a declaration could be made if the parents’ previous care of the child, or the expert evidence, was such as to enable a prediction that the child was likely to be harmed, whether physically or emotionally or sexually,

34 E v Department of Social Welfare, above n 17, at 334; And see C and C v Chief Executive of the Department of Child, Youth and Family Services, above n 16.
35    Oranga Tamariki Act 1989, s 197; Director General of Social Welfare v S [1992] NZFLR 309 (HC) at 312; And see Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.
36 Y v Chief Executive of the Ministry of Social Development [2012] NZHC 2774 (HC).
37 E v Department of Social Welfare, above n 17 at 335; Department of Social Welfare v T (1983) 2 NZFLR 358 (HC) at [21].
38 Re O (Children) (Non Accidental Injury); Re D (Children) (Non Accidental Injury) [2003] UKHL 18, [2003] 2 All ER 305 at [16]; applied in New Zealand –in C and C v Chief Executive of the Department of Child, Youth and Family Services, above n 16 at [29].
39 P v Department of Child, Youth and Family Services [2008] NZFLR 896 (HC) at [61].

or that the child’s development or physical or mental or emotional wellbeing was likely to be impaired or neglected.40

[47]	There was no disagreement in this appeal as to the applicable legal principles. What was in issue was their application. As Mr Bowe put it, the essential issues were:

(a)	was S a child in need of care or protection because of her needs and/or SLB’s limitations; and if so

(b)	could S’s need for care and protection be met by means other than the making of the declaration.

The evidence before the Family Court

[48]	The Family Court had a number of affidavits and reports before it, namely:

(a)	an affidavit from a Ms Antony, a social worker who had been assigned by the Chief Executive to S’s case. Both Ms  Mataara’s report and  Ms Besson’s report were attached to her affidavit;

(b)	a further affidavit from another social worker, a Ms Pamplin-Smart, who had also been assigned to S’s case. Annexed to her affidavit was a further report prepared by Ms Angela Person, a registered neuropsychologist and clinical psychologist, who assessed SLB’s cognitive performance and adaptive functioning on 15 March 2018;

(c)	a separate affidavit from Ms Person, annexing her assessment;

(d)	a further social work report,  dated  13  March  2018,  prepared  by  Ms Pamplin-Smart;

(e)	an updated social work report, dated 27 April 2018, also prepared by Ms Pamplin-Smart;

40	And see Brookers Family Law – Child Law (looseleaf ed, Brookers) at [NT4.2.07(1)].

(f)	copies of the parenting order and guardianship applications made by Mr and Mrs D and the related papers;

(g)	copies of various emails which SLB had sent to her cousin and her partner regarding their care of S;

(h)	two affidavits from SLB, one dated 31 January 2018 and the other dated 28 November 2018; and

(i)	reports prepared by Mr Amodeo, as counsel for the child.

[49]	At the  hearing,  viva-voce  evidence  was  given  by  Ms  Pamplin-Smart,  Ms Person and SLB. Various additional documents were put before the Court, including a social work report from a Ms Henderson, dated 22 May 2019, a child development report dated 18 March 2019, a Gateway Assessment report, dated 11 October 2018, and S’s Plunket book. SLB also produced three certificates attesting to her attendance at and/or completion of various parenting programmes.

[50]	Much of the material put before the Family Court would generally be considered to be inadmissible but, pursuant to s 12A of the Family Courts Act 1980, the Family Court can receive any evidence, whether or not admissible under the Evidence Act 2006, that it considers may assist it to determine the proceeding. There was no objection to any of the above materials being considered by the Family Court, and indeed there was extensive cross-examination on almost all of them.

Concerns about SLB’s parenting abilities

[51]	As I have noted above, concerns were expressed about SLB’s ability to care for S even before S was born. The midwife who first expressed concern about SLB’s capacity to parent did so because:

(a)	SLB wanted to give the baby a dummy – she said that she did not want the baby crying;

(b)	SLB did not want to wake the baby to feed it – she said that nobody could make her wake the baby to feed it;

(c)	SLB was a slow learner;

(d)	SLB asked a lot of questions about what to do, but then argued with the answers received and said that she would not do the things recommended;

(e)	SLB had little social support;

(f)	SLB was asserting that she could do what she wanted;

(g)	SLB’s then current partner was her fourth partner during the pregnancy; and

(h)	SLB was declining a suggestion that she should receive social worker support.

[52]	Similar concerns were expressed on 23 October 2015, when staff members at the Whangarei Base Hospital reported that SLB would not engage with staff members and that she was constantly challenging them. Staff reported that SLB was demanding, and that she was making statements that led staff to believe that S might be seriously harmed if she was discharged into SLB’s care.

[53]	The concerns expressed were borne out in part, when S developed an eye infection as noted in [9] above, and when SLB refused to accept tailored advice and instead relied on generic advice.

[54]	The concerns were also borne out when the Ministry received a confidential report from a family member. The family member had observed SLB’s parenting of
S. The family member noted that when S was tired, SLB would not allow her sleep saying that “she doesn’t sleep in the day, she sleeps eight hours at night”. The family member also observed that when S was hungry, and concerns were raised, SLB stated that she fed S every three hours. On one occasion, SLB said that she had just fed S,

when the family member knew that that was not the case. The family member commented that S was not fed for another two hours, and reported that S “was starving”. The family member believed that SLB was too rigidly following Plunket’s recommendations, rather than recognising that all babies’ needs are different.

[55]	Ms Mataara assessed SLB in January 2016. She noted that SLB was removed from her own mother’s care at the age of 10 years, because of neglect, and that she was assessed by a psychologist at the time who felt that there were “possible global difficulties [that had] impacted on [SLB’s] cognitive skills”. Ms Mataara noted that SLB was living with her mother and caring for S, and that the effect of SLB’s behaviour on S was concerning. She recorded that SLB was adamant that she was not suffering from depression, anxiety or any other mental health issue, and that she did not want community health services involved. She recorded SLB as asserting that she did “not care what CYFS or anybody thinks”. It was noted that SLB slept 9 – 10 hours a night, and that she felt that S was sleeping  well throughout the night as well.      Ms Mataara noted that SLB seemed to be lacking in knowledge of S’s development stage. She recorded that, when she had visited SLB, S appeared to be tired, with her head lagging to one side. She noted that SLB made no attempt to support S’s head, and that when SLB’s mother asked that S be passed to her, SLB rejected that suggestion and seemed hostile about it. Ms Mataara reported that when she asked SLB if she felt S was tired, SLB responded that she didn’t force S to sleep and that S would sleep when she wanted to. Ms Mataara expressed the following opinion:

I am concerned about [S’s] safety in regard to nurturing and her development and [SLB] realising she needs all cares done for her. [SLB] did not appear to recognise baby [S’s] queue’s (sic) while I was there and is not open to having help regarding this. It was noted that when [SLB’s] mother tried to speak, that [SLB] cut her off.

[56]	Ms Besson reported on SLB’s parenting capacity in May 2016. Again, she noted SLB’s background, recording that she had been placed in care at an early stage, following ongoing concerns when she was a child. It was noted that when she left the care home, SLB became transient, and that she attended several courses, but never completed any. Ms Besson spoke to SLB’s mother, and reported that she acknowledged that SLB is limited in her ability to provide a safe and good home for
S.  It was noted that SLB’s relationship with her mother is challenging, and that SLB

is controlling and can be hostile. It was also observed that SLB did not take advice from her mother and only let her mother care for S when SLB wanted to spend time with a boyfriend. Ms Besson also interviewed SLB. She recorded that SLB talked about the various professionals who had been involved with her, and that she had refused to engage with them, stating “I just don’t like them, so I don’t want anything to do with them”. Ms Besson noted that records in relation to SLB indicate that she has disengaged with most of the agencies who have been involved with her. Ms Person also noted various concerns expressed by professionals who had been involved with SLB and S since S’s birth. It was noted that concerns had been expressed by a social worker, Susan Whatmough, about SLB’s behaviour following the birth of S and noting a  lack  of  engagement,  insight  and  knowledge  of  S’s  developmental   stages.  Ms Mataara’s report was noted, as was a report prepared by another registered psychologist in July 2016, Barbara Kalshoven. Ms Kalshoven had noted that SLB manifested symptoms of obsessive-compulsive disorder, attention deficit disorder and possible Asperger’s disorder. SLB’s “cognitive ability was assessed [as falling] … in the low average, below average intellectually”. Concerns had also been expressed by Bethne Smith from Strengthening Families who noted that SLB had received a lot of advice, but she wanted to do it her way. It was noted that SLB did not engage with professionals, and that that of itself was a worry. Concerns about SLB’s abilities to parent S were also expressed by Lynette Matthews, a manager of the Early Years Hub.

[57]	Ms Besson summarised her conclusions as follows:

Many concerns were expressed by different professionals who have been involved with [SLB] and [her mother] since the birth of baby [S]. They all seem to be concerned about [SLB’s] lack of ability to provide safe and adequate care of baby [S] in the long term.

[S’s] physical needs seem to be well met at present. However, there is a probability that [S’s] emotional and psychological development will be compromised over time due to [S’s] below average cognitive function. Unfortunately, [S’s] parenting ability has been limited by her disengagement from support agencies attempting to inform and upskill her parenting practice.

[SLB’s] capacity to safely parent is compromised by her low cognitive function and lack of insight understanding of [S’s] emotional and development needs. … the complex and often hostile relationship between [her mother] and [SLB] would be likely to impact and exacerbate difficulties.
[S] would be less likely to thrive and possibly be at risk in such an environment. …

[SLB] is planning to have another baby by the end of next year. She is not in a relationship at present, but is confident that she will find a new boyfriend … This will further impinge on [SLB’s] emotional availability for [S]. [SLB] doesn’t seem to understand the potential difficulties and negative impact that future relationships might have on [S’s] emotional and psychological development. It is essential that [S] has stability and security in a nurturing safe environment for the long term.

[58]	It is noteworthy that neither Ms Mataara, nor Ms Besson, was called for cross- examination at the hearing. Mr Muston acknowledged that they could have been.

[59]	Ms Pamplin-Smart in her affidavit updated  the  situation,  and  noted  that Ms Person had been appointed as an independent neuropsychologist and clinical psychologist to assess SLB. She annexed Ms Person’s report and commented on it. She noted that children mirror modelled behaviour and enjoy reciprocated engagement, and that it  appeared  from the assessments both by Ms Mataara and  Ms Person, that SLB found it difficult to allow others to share in S’s care. It was noted that S had gone through a lot of changes over a short period of time, and that she needs SLB to be attentive to her verbal and non-verbal cues and to respond appropriately. It was commented that SLB could not allow herself to become bored or irritated with S, as any lack of engagement would impact negatively on S’s development. In addition, it was suggested that should S “escalate” SLB, there was a chance that SLB might place S at risk of physical harm. It was noted that SLB had no insight into S’s age and stage of development, and that she blamed the then caregivers, Mr and Mrs D, for S being behind in her milestones. It was accepted that SLB has engaged with professional services in the past, but it was suggested that she has been unable to demonstrate any learning or insight she had gained from doing so. Ms Pamplin-Smart expressed the view that SLB had limited or inconsistent understanding of S’s emotional, social, physical and developmental needs and that SLB had distorted ideas of healthy and safe parenting. It was suggested that this raised concern should SLB attempt to parent S independently. It was also noted that SLB had no basic knowledge of budgeting for the care of a child, let alone for herself, because all her needs were taken care of. It was queried how SLB could take care of S’s needs, given that her own skills and knowledge were distorted.

[60]	Ms Pamplin-Smart gave evidence and she was cross-examined about the Chief Executive’s views, the basis of the application, her own views and the views expressed

by others who had been involved. She acknowledged that there was nothing in S’s Plunket book suggesting that there were any concerns about S’s health or development which could be attributed to SLB’s neglect when she was caring for S, but otherwise stuck to her view that SLB’s parenting capacity is limited and that this had compromised S’s emotional and psychological development.

[61]	Ms Person undertook an assessment of SLB’s intellectual abilities. Her report is dated 21 April 2018. She interviewed SLB, Ms Pamplin-Smart and Ms Antony. She also reviewed Ms Kalshoven’s report, and the reports prepared by Ms Mataara and Ms Besson, and took into account background information provided by Ms Pamplin- Smart. She discussed SLB’s family history and current situation. She used a test known as the Wechsler Intelligence Scale for Adults – 4thedition. SLB’s general cognitive ability was assessed at being within the borderline range of intellectual functioning. Her full-scale IQ was assessed at 74 and it was observed that SLB’s thinking and reasoning abilities exceed those of only some four per cent of individuals of her age. It was noted that SLB lives at home with her mother, and SLB was reported as having advised Ms Person that her mother did most of her day-to-day living tasks for her – for example – cooking and preparing of meals, washing and folding clothes, cleaning the house and cleaning up after her. SLB told Ms Person she did not have any responsibilities at home and liked to just let her mother do everything for her. It was suggested that SLB’s difficulties in functioning inside the home, including cleaning, food preparation, performing chores and taking care of personal possessions, formed an “observable area of weakness” in SLB’s everyday adaptive functioning. It was also noted that SLB spoke of a lack of tolerance for other people, a disinterest in friendships, poor engagement with professionals and a lack of empathy. Ms Person recorded that SLB spoke of having little or no interest in other peoples’ perspectives. Ms Person was of the opinion that SLB’s overall borderline range of intellectual abilities was significantly impacting her every day functioning. She noted as follows:

Presently, historical information, alongside the cognitive-adaptive behavioural assessment, and reports of [SLB’s] social emotional-behavioural functioning suggests that she would be challenged to meet [S’s] current needs independently. Concern in the past was that even with the support of her mother, placement was unsuccessful.

[62]	Again, Ms Person gave evidence and she was cross-examined. She did not resile from the opinions expressed in her report in any material respect.

S’s circumstances and needs

[63]	Ms Person also noted that S presented with some challenging behaviours that she considered might be indicative of complex long-term needs.

[64]	There were other materials before the Family Court in relation to S. There was a social work report dated 22 May 2019. It was produced in evidence. It was reported that S was then attending day-care near Wellington, that the day-care centre had no concerns for her, and that her motor and social skills had improved since she first started. It was noted that S is gaining and developing skills typical of her age. It was also reported that S is thriving and making her own friends. It was observed that S is thriving in the care of SLB’s cousin and her partner, and with minimal involvement from Oranga Tamariki.

[65]	There was also a child development report dated 18 March 2019. It was there noted that S is a busy girl – “like a whirlwind” – and that she tends to have quick, fast play, moving from one thing to another. It was also noted that she experiences some anxiety and that she does not like being left in a room alone, and is sensitive about the feelings of others. An assessment using a developmental assessment tool known as “Griffiths 3” was undertaken. It assessed S’s ability to manage those tasks which are foundations for learning, such as puzzle tasks, language and communication, hand- eye coordination and motor skills. S was in the normal range for most and it was observed that she is making good progress and has normal development across all “subscales”.

[66]	There was also a Gateway Assessment report, dated 11 October 2018, prepared by Dr Varsha Gandhi. Dr Gandhi assessed S, and recommended that she needs to live in an environment where her physical, emotional and developmental needs can be recognised and responded to, and with caregivers who are able to recognise her cues and nurture her physically and emotionally. Dr Gandhi expressed some concerns about S’s development, noting that there is a delay in her fine motor skills, and a milder delay in her receptive language. He considered that some aspects of her physical

examination are concerning, but made no definite findings in this regard. He also noted that S displays signs of inappropriate attachment and anxiety, but that there has been an improvement since she has been in the care of SLB’s cousin and her partner. The view was expressed that S displays signs of anxiety and emotional upset during and following visits by SLB, that this needed to be monitored carefully, and that visits should be reviewed if the behaviours continue or worsen.

[67]	Commenting generally on the parenting skills needed for a child with specific needs, Ms Person stated as follows:

A child with specific needs would require more awareness and sensitivity and ability to respond to those particular needs and care for them, not (sic) matter what those needs are. The reason that I had flagged that in the report was the information that [S] was presenting with some difficulties at the time and I was concerned that perhaps they needed to be identified and it depends on the degree of those needs, but a – even a person with adequate parenting skills and let’s say average intellectual ability could also be challenged by a child with needs, so it emphasises the need to take care and caution that the support would be there for the child.

[68]	There was also a further social work report dated 20 December 2019. It was not before the Family Court. It was ordered by Judge Rogers and it was produced by Mr Amodeo. Counsel agreed that I should look at it. The report recorded that during supervised access with SLB, it has again become apparent that SLB lacks the skills and the ability to connect with S. It was also observed that S looked uncomfortable, and that SLB is unable to recognise S’s cues. Since S has been placed with SLB’s cousin and her partner, she has developed a strong and positive attachment with them and with their daughter; they are responsive and sensitive of S’s needs and can recognise her cues and respond appropriately. It was observed that S requires further assessment, and that she may have complex long-term needs which require awareness and sensitivity and an ability to respond. It was suggested that SLB’s cousin and her partner are nurturing and supporting S’s physical, emotional and developmental needs, and it was recommended that there is presently no realistic possibility of S returning to SLB, because of the significant care and protection concerns relating to SLB’s ability to parent.

SLB’s evidence

[69]	In her first affidavit, SLB contested a number of the observations made by the various social workers. She asserted that she was pressured into allowing Mr and Mrs D to care for S; she said that she had cared for S until she was approximately 12 months old, taking responsibility for S’s primary care, feeding, bathing, washing and the like. She accepted that the various issues arose between her and Mr and Mrs D, but said that whilst she did not agree with their position on a number of matters, she did not want S’s care disrupted. She said that all times she remained S’s guardian and that she was simply seeking to be consulted on guardianship issues. She expressed the view that she is capable of parenting S, and that she wants S to come back into her primary care. She argued that Ms Besson’s report was “extremely limited”, and that there was no assessment of her and S together and no observation of her parenting skills.

[70]	In her second affidavit, SLB replied to Ms Person’s report. She denied the comment attributed to her by Ms Person that her mother washed and folded her clothes and cleaned up after her. She said that she did her own laundry, cleaned her own room and often offered to do the dishes. She denied any hostility and said that she was just a “very straight up person”. She denied failing to recognise S’s cues, and denied intimidating others. She did however say that if others annoyed her, she would respond and defend herself. She said that she only had one boyfriend during her pregnancy, and that while she met up with a “few guys from dating apps while she was pregnant”, that was it. She said that in any event, this was none of Oranga Tamariki’s business. She asserted that she was doing everything in her power to demonstrate to Oranga Tamariki that she was willing to improve and to try to get her daughter returned into her care. She claimed that she had engaged with professionals willingly, and that S is never anxious or ambivalent towards her. She argued that she and S have a good, strong and emotional bond and attachment. She asserted that she could care for S if she had some supports in place and if people would give her a chance.

[71]	SLB gave viva voce evidence of the various parenting courses she has attended. She accepted that as a parent, no-one is perfect, but said that she is always

looking to learn more and improve her situation. She dealt with her relationships with other family members and friends. She was critical of the limited contact she has with S, and queried how she is expected to interact with S and develop a strong bond, when she does not have long enough with S to create that kind of bond. She nevertheless said that she has a good relationship with her cousin and her partner, who currently have S in their care. While it has become “a little bit more strained” since S had been in their care, if S cannot be in her care, then her cousin and her partner were her appropriate placement choice. When she was asked whether she is seeking regular contact with S, her response was that she is seeking to get S back, and to regain custody of her.

[72]	Mr Amodeo took SLB through some of the behaviours attributed to her. She commented as follows:

I did some of the things suggested but then again its my child so I said, you know, this is my baby and I’ll parent her my way, not the same way that everyone else wants to make me do it.

When she was asked whether she agreed with some of the concerns expressed for S, she replied: “Not particularly, maybe some aspects but not all”. She asserted that she had taken on some of the advice given to her. When she was asked why she did not take on all of the advice, she responded, “Because I don’t have to agree with everyone in this world”. She denied various other matters attributed to her. She did not accept that she failed to pick up on S’s cues and act appropriately or that she habitually disagreed with professionals trying to help her. She accepted that S was “a little bit traumatised” when she was moved from her placement with Mr and Mrs D and that she was further traumatised when she moved in with the temporary caregivers, before being moved to the cousin and her partner. She accepted some responsibility for the placement with Mr and Mrs D breaking down, and she expressed sorrow for the fact that S became traumatised. She nevertheless said that she was happy, because she did not get along with Mr and Mrs D, and because they were trying to force a lot of “different stuff on the parenting side of things”.

[73]	Mr Amodeo took her through each of the various reports and sought her comment on material matters in each. SLB accepted that she did not think that she would be getting S back for a number of years. She also accepted that S presents with

some challenging behaviours that could be indicative of complex long-term needs. She said that, if this is the case, she has asked Oranga Tamariki, whether, if S is returned to her care, they can help “finding things to engage with that would help S”. She said, “[s]he obviously has some stuff that we need to deal with”. She accepted that she personally has a slight learning difficulty, but went on to say, “[w]hose (sic) to say that I can’t parent my child with a lot of support networks in place and health – like help”.

The Family Court’s view of the evidence

[74]	Broadly, the Judge concluded that:

(a)	S’s removal from her placement with Mr and Mrs D had been extremely difficult for S;

(b)	S was and still is displaying signs of inappropriate attachment and anxiety;

(c)	S’s situation has improved since she has been placed with SLB’s cousin and her partner;

(d)	S has complex long-term needs, and support and assistance are required to deal with those needs;

(e)	SLB acknowledges that she did not think it likely that S would be coming back to her care for some time;

(f)	SLB has not proposed any alternative arrangements or care plan, nor advanced any proposal for S’s ongoing care other than her return to her;

(g)	SLB has undertaken parenting courses, but there is no evidence of her ability to apply what she has learnt; and

(h)	SLB faces personal challenges, due to her own exposure to severe parental neglect and domestic violence as a child, her low intellectual

functioning, her lack of understanding of child development, her lack of parenting skills, her reluctance to accept advice or support, and her lack of insight.

[75]	There was clearly an evidential foundation for each of these various findings and although Mr Muston took me to SLB’s evidence in relation to a number of the specific issues, SLB has not been able to persuade me that the Judge’s conclusions were wrong in relation to any of them. It is noteworthy that SLB did not call evidence, for example, to rebut or critique Ms Person’s report. Rather, SLB simply disagreed with aspects of Ms Person’s report. Nor was there any independent challenge to any of the other expert and professional reports and assessments. There was evidence of concern on the part of not only professionals but also family members, as to SLB’s parenting capabilities, and the consequences for S.

[76]	I accept that there is nothing to suggest that SLB inflicted any physical harm on S during the first year of S’s life; nevertheless the evidence established that SLB’s limited parenting capacity had already harmed S emotionally. While SLB has, to her credit, undertaken parenting courses, there is no evidence that the undertaking of these courses would of itself ensure the kind of stable, secure, sensitive and long-term care that S requires. SLB herself acknowledges that S needs help and support and unless the declaration is in place, SLB would become responsible for organising the necessary support network herself. There is nothing to suggest that she is capable of doing that. The evidence compelled the conclusion that, were S to be returned to SLB’s care, it is likely, on the balance of probabilities, that there will be ongoing emotional harm to S. On the evidence, SLB is not currently able to provide the appropriate care for S.

[77]	S’s welfare and interests were the first and paramount consideration, and I am satisfied that the orders made by Judge Rogers were directed to that end. S was in need of care and protection under both s 14(1)(a) and (b) as at the time the declaration was filed. The various concerns expressed have not reduced over time, and the evidence before the Family Court did not demonstrate that, without a declaration, the kind of harm, particularly emotional harm, previously suffered by S would not continue or be repeated. SLB’s cousin and her partner, as the persons now having the

care of S, have brought that harm to an end and they are able to ensure that it will not repeat if S is left in their care. She has thrived since being in their care. The declaration meant that the Chief Executive could place the child with S’s cousin and her partner. The Family Court could not properly be satisfied that it was practicable or appropriate to provide the necessary care and protection for S, other than by making a declaration.

[78]	The making of the declaration does not preclude S returning to SLB’s care if and when that course is appropriate. It is not presently appropriate, and in my judgment, the Family Court was right to make the declaration that S was a child in need of care and protection. That was the only way of protecting S’s welfare and interests.

Result

[79]	The appeal is dismissed.

[80]	In accordance with s 437A of the Act, I direct that any report of this proceeding must comply with ss 11B to 11D of the Family Courts Act 1980.

[81]	SLB has a grant of legal aid. No costs order is appropriate and the Chief Executive did not seek costs.

[82]	I certify for Mr Amodeo’s reasonable costs in preparing for the appeal, and in attending the hearing.

Wylie J