Circle of fight

CHAPTER 29

COURT OF PROTECTIVE SERVICES: JUDGEMENT IN THE MATTER OF LINTON V

DEPARTMENT OF SOCIAL RESPONSIBILITY, HIS HONOUR JUDGE CULLEN PRESIDING.

The appellant in this matter asks for an order that would give her the guardianship of another even though she is herself under a guardianship order and even though she is a minor. Such an application raises obvious issues of maturity and responsibility, which the appellant has sought to answer in three ways. Firstly, she argues that her age is irrelevant and that the Court is entitled to consider her suitability on her merits. In making this argument she has relied considerably on Grant v Breadsell, where the High Court found that leaving a sixteen year old in charge of a creche was not in itself proof of negligence, on Ruppy v Dalby University, where the university was compelled by the Supreme Court to admit a fourteen year old to its medical faculty, and, since the war, on two cases decided by this court, namely Macalister and David, where adoptions by under-age parents were permitted.

However, in Macalister the appellant was the aunt of the child, and in David the older brother of the fifteen-year-old mother who had died. Further, in the first of these cases the child was four months old; in the second, ten months.

Counsel for the present appellant makes much of the remarks by Justice O’Massey in Grant v Breadsell where that distinguished jurist said that ‘sometimes the age of a litigant can be the least relevant measure for assessing maturity, and indeed relying upon chronological age can amount to discrimination’. Further, in David, Justice Chen said she was satisfied that the seventeen-year-old brother showed considerably more maturity in court than the maternal grandparents, to whom the Department of Social Responsibility had originally granted custody, and that ‘there is no reason to suppose that age always confers wisdom; a sense of responsibility is not the exclusive province of those over the age of eighteen, and a judge is entitled to draw upon her own experience of life in recognising that youth alone does not prevent the practice of good parenting’.

Secondly, the appellant here argues that the new flexibility exercised by the courts since the war in such matters as these ought to be extended to her, and that the other options for the child who is the subject of these proceedings are of such poor standard as to entitle her to be considered the better alternative.

It is certainly true that a new creativity and flexibility has been needed by many courts if not all, since the war, and the decisions in Macalister and David reflect that. There were a great many orphans created by the war, and the sharp rises in the cost of living, along with the smaller amount of living space available to most people, have placed tremendous pressure on the adoption and fostering agencies. The courts have, in the view of this court at least, responded both appropriately and imaginatively. Although the various options provided by the State to children who cannot be placed in families might not, in the appellant’s view, be satisfactory, they nonetheless are subject to the most stringent regulations, they are frequently and regularly inspected, and they offer the great advantage that the children in their care are in a transparent situation where they are, it is hoped, free from abuse, whilst at the same time their physical and mental health are properly supported and monitored. There is much to be said for such arrangements, and it is unfair to the institutions concerned to be compared to the conditions of a different era. Oliver Twist and Little Orphan Annie are where they should be, on the fiction shelves of libraries, and not to be compared to the current conditions for State-managed children in this country.

Thirdly, the appellant asks the Court to take into account her unusual life experience, her remarkable range of abilities gathered from her farming background as well as her wartime activity, and her personal strengths and attributes. Further, she argues that the circumstances in which she and the child in this case met created a special bond which places her in a unique relationship to him and that this uniquely qualifies her to take on the role of parent to him.

The Court has heard from a number of witnesses, including General Eric Finley of the New Zealand Army, as to the character of Ellie Linton, and is in no doubt that she is an exceptional young woman who has carried herself with great distinction through the war and subsequently in coping with the appalling murder of her parents. Further her care of the child in this case has been to the best of her ability, and the Court is satisfied that the child has suffered no neglect at her hands. There is good reason to suppose that she has helped him in many ways, and that he may have been much worse off had she not devoted so much time and energy to his cause. The relationship between them, unusual as it is, and perhaps the kind of thing which is only found in times of special exigency such as war, appears to be a genuinely strong and loving one.

I come now to the issue of the appellant’s own guardianship order. Having read the Protective Services Act of 2007, I agree with both counsel that nothing in the legislation touches upon this issue. Perhaps surprisingly, those who drafted the statute did not envisage such a situation as I have before me now. At first sight, however, it is sensible and reasonable to argue, as counsel for the Department has done, that one who is the subject of a guardianship order cannot herself be a guardian for others. The essence of such an order is that its subject is presumed to be incapable, for whatever reasons, of taking care of herself, and therefore cannot be expected to be capable of taking care of others.

At the same time the Court must recognise the realities of life. One such reality is that young people who are under guardianship orders for no other reason than that of age may, as they approach 18, be acknowledged as reaching a stage of life where it is appropriate to treat them in a more adult manner. It may, in such situations, well be appropriate to recognise their greater independence and maturity. The department can hardly be unaware that guardianship orders relating to young people who are 16 or 17 years old, and who are not disabled, often have little practical meaning, except where trust funds are concerned.

I am aware that the decision I make today may well be cited as a precedent should a similar action come before the courts at a future time, but I am satisfied that due to the maturity of the appellant in this case, her own guardianship order need be no impediment to her being granted the custody of this child, with all the responsibilities which that necessarily involves.

Having considered carefully then all the issues raised in this case, I propose to make an order which may excite some public surprise and debate, but I have sat in this courtroom for nearly three days and heard a great deal of evidence. Counsel for the appellant has argued in his usual forceful and cogent way that courts must not be constrained by inflexible and old-fashioned approaches to family groupings, and that the intervention of the war must of necessity result in judicial recognition of new configurations that would not have been contemplated before the war. I have already made some reference to this earlier. I am convinced that this is a case where an imaginative approach to the welfare of a young boy who has no living relatives bar an infant sister living in a foster family is justified.

After all, what is the purpose of the law? It is a means by which we can live together. Nothing more than that. The young and the old, the rich and the poor, people of different skin colours, male and female: the law enables all of us to experience our lives without yielding to primitive impulses of greed and fear and prejudice, and without being subject to the primitive impulses of others. It seeks to prevent problems, or, if they have already occurred, to resolve them with fairness to all. It recognises that the past can only be visited; it cannot be changed. But insofar as is possible the law seeks to restore us all to the positions we were in before change was unfairly inflicted on us.

This young lad cannot be restored to his parents but he has found a family relationship by himself which suits him, which is apparently doing him no harm, and may well, according to the evidence of many witnesses I have listened to in this courtroom, be doing him some good. He and his mentor are no burden on society, rather they are useful contributors to it. The household which they have established, although located in an area made dangerous by terrorist activity, appears to be a successful one and they have been living in it without disturbance to their neighbours. And I use the word ‘neighbours’ in an abstract sense as well as a literal one.

I therefore make the following findings and orders: that both parents of this child are deceased, that in the absence of other relatives or appropriate persons his care now becomes a matter for the State, that the State will be properly carrying out its responsibilities for him by appointing the present appellant as his foster mother, and that this order will remain in effect until the appellant turns twenty-one, at which time she may apply for it to become a permanent adoption if she so wishes and if it is found to be an appropriate course at that time. I further order that the appellant agree and submit to the following conditions: firstly, that the environment in which the child is raised be so far as possible a safe one, and that to this end she ceases to live upon the farm property from which the child was kidnapped, and that she moves into Wirrawee or Stratton, as the appellant has indicated that she intends to do. This must be done within ninety days of this order being given. Secondly, that officers from the Department of Social Responsibility visit the family regularly for the purpose of inspecting the living conditions in which the child is kept, and that such inspections shall be at least once weekly for the first six months, and providing that the result of these inspections is satisfactory that they then be reduced in frequency to once a fortnight for the following six months, and thereafter at the Department’s discretion but not less than once every two months until the appellant turns 21. Thirdly, that the appellant so far as is within her powers ensures a satisfactory school attendance record for the child, and that she notifies the Department by 10 am on each and every day that the child is not attending school, and as to the reasons for his absence. And finally, that the appellant notifies the Department immediately of any change in the circumstances of her and/or the child, which might materially affect their welfare. So given, Stratton Court of Protective Services, order to take effect immediately.

Now, Miss Linton, do you understand what this means?

Someone get her a glass of water.

We’ll wait until you are able to compose yourself, Ellie. Take your time.

All right, now do you understand what this order means?

(Linton) Yes I think so Your Honour.

Well, your counsel will explain it all to you I am sure. But I am giving you custody of Gavin so long as you move into town and allow the officers from the Department to come and visit you every week. That’s for the first six months, but after that if things are going well you’ll see less of them.

Thank you sir, I mean Your Honour, thank you very much.

I’m sure you will do a very good job, as long as you comply with the conditions of the Court that I have set out today. And I’m sure you’ll find the people from the Department very helpful and nice to work with. You need have no fear of them.

Yes Your Honour, thank you Your Honour.

Well, good luck to you both. I hope things go better for you from now on. Court is now adjourned.

Court adjourned at 2.44 pm.