Ahc v Cac

• Jurisdiction: New Zealand
• Judge: Judge A J Twaddle
• Judgment Date: 07 January 2011
• Court: Family Court
• Docket Number: FAM-2010-004-002326
• Date: 07 January 2011

In the Matter of the Care of Children Act 2004

Between

A H C

Applicant

and

C A C

Respondent

FAM-2010-004-002326

IN THE FAMILY COURT AT AUCKLAND

Application under the Hague Convention on the Civil Aspects of International Child Abduction to have children returned to Northern Ireland — mother was New Zealand born and returned to New Zealand with the father's consent to retrain as a nurse and gain employment with a view to living ultimately in the United Kingdom — whether children had been wrongfully retained in New Zealand — whether father acquiesced to children remaining in New Zealand indefinitely — whether weight could be given children's objections where their views were likely to be influenced.

Counsel:

L Soljan for the Applicant

G Wagner for the Respondent

E Parsons as Lawyer for the Children

RESERVED JUDGMENT OF Judge A J Twaddle

[Hague Convention: Retention, Consent, Acquiescence and Children's Views]

1 This is a Hague Convention case about L who will shortly be 11, M, aged 9, and J, aged 7. Currently the children are in New Zealand in the care of their mother. Their father wants them to be returned to Northern Ireland.

Context

2 Mr C was born in Northern Ireland. He is a property developer. Mrs C was born in New Zealand and qualified here as a registered nurse. In the course of overseas travel she went to Northern Ireland and met Mr C. They married in 1998.

3 All three children were born in Belfast, Northern Ireland.

4 From about the end of 2007 the property market and the financial situation generally in Northern Ireland became very difficult. Mr C encountered serious business problems. An associated business operated by Mrs C had to stop trading. To enable Mrs C to assist with the family finances she and Mr C agreed that, with the children, she would return to New Zealand, retrain, and re-qualify to practise as a registered nurse, ultimately in the United Kingdom. They envisaged that the retraining would be completed by January 2011 (a two month course followed by a 12 month placement) and that Mrs C and the children would then return to Northern Ireland. Before leaving Northern Ireland Mrs C accepted places for the children offered by two schools from January 2011.

5 In accordance with the agreed arrangements Mrs C and the children travelled to New Zealand on 25 September 2009. They have lived with Mrs C's parents in Auckland since then. Mr C remained in Northern Ireland to carry on his business interests, and had contact with Mrs C and the children by means of Skype, text messages, email and telephone. But over time the communication became less frequent and began to focus on financial matters rather than the activities of the family.

6 In May last year a bank filed civil proceedings against Mr and Mrs C claiming possession of the family home. Mr C instructed his solicitors to defend the claim.

7 Mr C came to New Zealand on 22 June for a six week visit. On his arrival he found that he and Mrs C were to sleep in separate rooms (ostensibly because of Mrs C's health). On 28th June in response to an enquiry by Mr C, Mrs C said the separate room arrangement was to be permanent and that she wanted a divorce.

8 On 10 July Mr and Mrs C had an important discussion (to which I will refer in detail later in this judgment) and on 25 July Mr C moved out of the home of Mrs C's parents. He returned to Northern Ireland on 3 August.

9 Subsequently communication between Mr and Mrs C deteriorated further and Mr C filed his Hague Convention application on 23 September 2010.

The Statutory Provisions

10 The Hague Convention is implemented in New Zealand law by s 94 of the Care of Children Act. Article 1 of the convention relevantly states that one of the objects of the convention is to secure the prompt return of children, wrongfully removed to, or retained in, any contracting state.

11 Northern Ireland and New Zealand are contracting states.

12 Articles 3 and 4 of the convention provide:

Article 3 — “The removal or retention of a child is to be considered wrongful where – (a) it is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

“The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that state.”

Article 4 – “The convention shall apply to any child who was habitually resident in a contracting state immediately before any breach of custody or access rights. The convention shall cease to apply when the child attains the age of 16 years”

13 Section 105 of the Care of Children Act relevantly provides:

(1) an application for an order for the return of a child may be made to a court having jurisdiction under this sub-part by or on behalf of a person who claims —

• (a) that the child is present in New Zealand; and

• (b) that the child was removed from another contracting state in breach of that person's rights of custody in respect of the child; and

• (c) that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and

• (d) that the child was habitually resident in that contracting state immediately before the removal.

(2) subject to s 106 a Court must make an order that a child in respect of whom the application is made be returned promptly to the person or country specified in the order if –

• (a) an application under subsection (1) is made to the Court; and

• (b) the Court is satisfied that the grounds of the application are made out.

14 Section 95 of the Act defines removal, in relation to a child, as meaning the wrongful removal or retention of a child within the meaning of Article 3 of the convention.

15 Section 97 of the Act includes as a right of custody the right to determine the child's place of residence.

16 Section 106 of the Act sets out various grounds on which the Court may refuse to order the return of a child. These grounds include: –

• (a) that the person by whom the application is made consented to or later acquiesced in the removal; and

• (b) that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition to taking them into account in accordance with s 6(2)(b), also to give weight to the child's views.

17 The objectives and purpose of the Hague Convention generally were considered by the Supreme Court in Secretary for Justice v HJ [2007] 2 NZLR 289. The Convention has two objectives: first, to seek the prompt return of children wrongfully removed or retained in any contracting state, and secondly, to ensure the rights of custody and access under the law of one contracting state are effectively respected in other contracting states.

18 The purpose of the Convention is to provide a summary return mechanism to enable the Courts of the country of the child's habitual residence rather than the Courts of the country to which or in which the child has been wrongfully removed or retained, to determine matters relating to day to day care of and contact with, the children.

19 In this case there is no dispute that:

• (a) the children are present in New Zealand; and

• (b) at the time of the removal of the children from Northern Ireland Mr C was exercising his rights of custody; and

• (c) the children were habitually resident in Northern Ireland before they were brought to New Zealand.

The Issues

20 The issues are:

• (a) whether the children have been wrongfully retained in New Zealand;

• (b) if the children have been wrongfully retained in New Zealand, whether Mr C subsequently acquiesced in the retention;

• (c) whether the children object to return to Northern Ireland and, if so, the degree of maturity of each child and the weight to be given to his or her views;

• (d) in the event that either of the defences is made out, whether the Court in the exercise of its residual discretion should order the return of the children to Northern Ireland.

21 The onus rests on Mr C on the balance of probabilities to establish that the children have been wrongfully retained in New Zealand. The onus of proving that one of more of the defences is established rests on Mrs C.

Were the children wrongfully retained in New Zealand?

22 “Retention” means retention out of the jurisdiction of the Courts of the state of the child's habitual residence: Re H (Minors) (Abduction: Custody Rights) [1991] 2 A.C. 476. Retention occurs when a child who has previously been outside the state of its habitual residence for a limited period is not returned to that state on the expiry of that limited period: Punter v Secretary for Justice [2004] 2 NZLR 28 at [40].

23 Before making factual findings, it is necessary to consider whether, as a matter of New Zealand law, wrongful retention can arise despite there being an agreement for the children to remain in the country other than the country of habitual residence until a specified date (“the planned return date”) and the planned return date has not been reached — a situation described as anticipatory breach.

24 Referring to Punter v Secretary for Justice [2004] 2 NZLR 28 (C.A.) ( Punter No. 1), Punter v Secretary for Justice [2007] 1 NZLR 40 (C.A.) ( Punter No. 2), Secretary for Justice v S B [2006] NZFLR 1027 (H.C) and various overseas cases ( Toren v Toren 191 F 3rd 23 (1999), Re: G (Abduction: Withdrawal of Proceedings, Acquiescence and habitual residence) [2007] EWHC 2807 and RS v KS [2009] EWHC 1494...