The Hague Convention (“HC”) is the international law that governs the
abduction of children. Abduction is defined as taking children from a
country without the consent of their parents or guardians. Essentially, the HC regulates how countries interact with each other when a child has unlawfully been taken to another country. The HC’s objectives include securing the prompt return of a child wrongfully taken from a country and to ensure the rights of the custody for parents or guardians. It is important to note that the HC applies to moving children from country to country, relocation domestically (within New Zealand (“NZ”)) has different regulations and rules surrounding this.
The HC is only enforceable in countries that are party to it. This means that if a child was unlawfully taken to a country that was a party to the HC, the immediate return of the child/ren is required. If the country is not party to the HC, the process of returning the child becomes complicated, which in turn prolongs the process. In NZ the HC is entrenched under the Care of Children Act 2004.
In NZ the HC is most commonly used when parents separate and one parent wishes to move or has moved, to another country.
When a child is taken from NZ an application for their return must be made. The application must satisfy that:
- the other country the child was taken to is a contracting state to the HC;
- the removal breaches the applicant’s rights of custody (access) to the child;
- the applicant was exercising their rights of custody at the time of the removal; and
- the child must have been habitually resident in NZ immediately before removal.
If these are met, the child will be promptly returned to NZ and the decision of, if the child will move, will be decided.
When a parent intends to take a child out of NZ permanently and the other parent does not consent, the opposing parent can apply to the family court to prevent them from leaving the country until a decision has been made. Such an application should include:
- that the child is in NZ;
- that the removal will breach the staying parents right of custody;
- that those rights of custody are being exercised at the time; and
- that the child is habitually resident in NZ.
The decision to allow a child to move to another country then falls to the family court. The family court takes a holistic approach; this means that all facts are relevant to making the decision, with its main concern being the welfare and best interests of the child. The parent who has taken/intends on taking the child, must file a defence that includes grounds on which it is in the best interest of the child to leave NZ. The parent can rely on a number of defences such as:
- the staying partner gave their consent;
- the staying partner was/is not exercising their rights of custody;
- there is a grave risk (physical and psychological) to the child if they remained in NZ;
- the child would be put in an intolerable position;
- the child objects to staying in NZ; or
- the move to another country happened one year ago or more and is now settled and socially integrated into their new environment.
The most persuasive ground that will compel the family court to allow the child to leave NZ is that the move would be for the welfare and best interests of the child.