De v Chief Executive Ministry of Social Development

IN THE SUPREME COURT OF NEW ZEALAND
SC 75/2007
[2007] NZSC 94

BETWEENDE AND ORS

Applicants

ANDCHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Court:Tipping, McGrath and Anderson JJ
Counsel:Applicants in person

J C Pike for Crown

Judgment:28 November 2007

JUDGMENT OF THE COURT

A.The application for leave to appeal is dismissed.
B.There will be no order for costs.

REASONS
[1]       The applicants are the mother and maternal grandparents of a young child. When the child was eight weeks old, social workers employed by the respondent sought, and obtained ex parte, a custody order under s 78 of the Children Young Persons and Their Families Act 1989. They took the young child into care pursuant to that order. Rule 220 of the Family Court Rules authorised the making of such an order on an ex parte basis.
[2]       The applicants applied to the High Court for a writ of habeas corpus to recover the child from the respondent’s care. They contended that the making of the s 78 order on an ex parte basis was unlawful and hence the respondent’s custody and detention of the child were unlawful. Asher J declined the application in a judgment delivered on 25 June 2007. The Court of Appeal dismissed the ensuing appeal in a judgment delivered on 18 October 2007.
[3]       In the meantime an inter partes hearing took place in the Family Court of an application to set aside the s 78 order. That application was declined with the effect that the order which had been made ex parte was confirmed, after the applicants had had an opportunity to put their case. The practical result of this is that the lawfulness or otherwise of the ex parte order is moot. That order has been overtaken by the confirming order, the legality of which cannot be questioned on any ground which would justify the issue of a writ of habeas corpus. In these circumstances it would not be appropriate to give leave to the applicants to appeal from the decision of the Court of Appeal.
[4]       We should add that we would also have been disposed to refuse leave on the basis that no reasonable ground has been shown for contending that the decision of Asher J was erroneous. In short, none of the grounds specified in s 13 of the Supreme Court Act 2003 for the granting of leave to appeal has been made out. The application must therefore be dismissed.
Solicitors:
Crown Law Office, Wellington

CaseChat Overview and Summary

The applicants, De and Orsa, are the mother and maternal grandparents of a young child. The respondent is the Chief Executive of the Ministry of Social Development. The applicants sought a writ of habeas corpus from the High Court to recover their child from the respondent's care. The applicants argued that the making of a s 78 order on an ex parte basis was unlawful and that the custody and detention of the child were also unlawful. The High Court dismissed the application, and the Court of Appeal dismissed the ensuing appeal. The applicants then sought leave to appeal to the Supreme Court. The legal issues before the court were whether the making of an ex parte s 78 order was lawful and whether the detention of the child was lawful. The court held that the making of the ex parte s 78 order was lawful and that the detention of the child was also lawful. The court further held that the applicants had not demonstrated any reasonable ground for contending that the decisions of the High Court and the Court of Appeal were erroneous. The application for leave to appeal was dismissed, and there would be no order for costs.

The court found that the applicants had not established any of the grounds specified in s 13 of the Supreme Court Act 2003 for the granting of leave to appeal. The court held that the making of the ex parte s 78 order was lawful and that the detention of the child was also lawful. The court held that the applicants' arguments were without merit and that the decisions of the High Court and the Court of Appeal were correct. The court found that the practical result of the inter partes hearing in the Family Court was that the ex parte order had been confirmed, after the applicants had had an opportunity to put their case. The court held that the legality of the confirming order could not be questioned on any ground which would justify the issue of a writ of habeas corpus. The court held that it would not be appropriate to give leave to the applicants to appeal from the decision of the Court of Appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established