AF v RC [2020] NZFC 6759

Published 26 May 2021

Application for interim personal order — adult subject person — wholly lacks capacity to make decisions about own welfare — least restrictive intervention — living arrangements — Protection of Personal and Property Rights Act 1988, ss 6, 8, 10 & 14 — Care of Children Act 2004, s 4 — T-E v B [Contact] [2009] NZFLR 84 (HC) — Hewgill v DN & AN FC Manukau FAM-2016-092-007 — N v Bupa Care Services (New Zealand) Ltd [2017] NZHC 499 (HC) — In the matter of A (1996) NZFLR 359. This was an application by the mother of the subject person for an interim personal order under s 10 of the Protection of Personal and Property Rights Act ("PPPRA"), that the subject person be returned to live with her mother. The subject person had been living with her mother for the past 8 years and had been unilaterally removed from her mother's care by her father, who had concerns for the subject person's welfare based on allegations of physical assault on the subject person and various other forms of alleged neglect. The subject person, who was in her early 20s, had various forms of impairment, such that she had been deemed to wholly lack the capacity to make decisions about her own welfare, pursuant to s 6 of the PPPRA. Although persons over the age of 18 were no longer covered by the Care of Children Act, it would be artificial to assume that the paramount principle of the welfare and best interests of the child did not apply in PPPRA applications involving a young adult. The allegations of assault and neglect by the mother came from former caregivers of the subject person. The allegations were denied by the mother, and affidavits refuting the allegations were also submitted by the subject person's sibling and various other persons involved in her care. The allegations were before the Court but were not for determination at the current hearing. A court should be reluctant to make findings of fact or credibility without cross-examination. The Judge considered it to be in the subject person's welfare and best interest to be returned to live with her mother, as she had been attending an age-appropriate specialist support programme, through which there could be informal supervision of the applicant's care of the subject person. The Judge made an interim order that the subject person be returned to live with her mother within five days of the Government reducing Auckland to Alert Level 2 or 1, to permit travel through the city. As to the substantive proceedings for final welfare guardian of the subject person, the Judge directed that the parties file further submissions. Judgment Date: 19 August 2020. * * * Note: names have been changed to comply with legal requirements. * * *