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Case Name
AHC v. CAC Custody [2011] NZFLR 677
INCADAT reference
HC/E/NZ 1227
Court
NEW ZEALAND
High Court, Auckland
Appellate Court
Judge Andrews
States involved
UNITED KINGDOM - NORTHERN IRELAND
NEW ZEALAND
Decision
4 May 2011
Final
Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a) | Objections of the Child to a Return - Art. 13(2)
Appeal dismissed, return ordered
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Director-General, Department of Child and Safety v. S [2005] FamCA 1115, (2005), 34 Fam LR 636; H & S, Re [1991] 2 AC 476, [1991] 3 All ER 230 (HL); JHL v. Secretary for Justice [2008] NZFLR 54 (HC); K (abduction: consent), Re [1998] 1 FCR 311, [1997] 2 FLR 212 (FamD) ; May v. May (1982) 1 NZFLR 165 (CA); P (A Child), Re [2004] EWCA Civ 971, [2005] Fam 293; White v. Northumberland [2006] NZFLR 1105 (CA).
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INCADAT comment
Aims & Scope of the Convention
Nature of Removal and Retention
Anticipated Non-Return
Article 12 Return Mechanism
Autonomous Interpretation of 'Rights of Custody' And 'Wrongfulness'
Exceptions to Return
Classifying Consent
Acquiescence
Parental Influence on the Views of Children
SUMMARY
Summary available in
EN
Facts
After the parents encountered financial difficulties, they agreed that the mother would return to New Zealand to re-qualify to practice as a nurse. This was to take 14 months and the children would accompany the mother. Mother and children left in September 2009 and were due to return in January 2011.
In June 2010, the father travelled to New Zealand to see the family. During the stay, the mother advised that she wanted a divorce. On 23 September 2010, the father filed a return application. On 7 January 2011, the Family Court at Auckland declined the application, finding that there had been no breach of custody rights since the father was found to have consented to the children remaining in New Zealand indefinitely.
The trial judge added that were he wrong in this finding, he would have found that the father had acquiesced and would have exercised his discretion not to return the children. The father appealed.
Ruling
Grounds
Removal and Retention - Arts 3 and 12
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Rights of Custody - Art. 3
It was submitted for the father that there had been an anticipatory breach of his rights of custody on 10 July 2010 when in a meeting with him, the mother made a clear and unequivocal statement of her intention that she would not allow the children to return to Northern Ireland.
The Court noted that in a letter dated 10 May the mother had given up Northern Irish school places that had been offered to the children. The Court accepted that there had been a clear and unequivocal statement that the children would not return to Ireland in January 2011 and that there had therefore been an anticipatory breach of the father's rights as at 10 July 2010.
Consent - Art. 13(1)(a)
The Court found that the trial judge had neither erred, in law or in fact, in concluding that a clear inference could be drawn from the evidence that the father had agreed to vary the original agreement, and had accepted that the children would remain in New Zealand after January 2011.
The father's emails of 14 January, 3 May, and 14 May 2010 were held to be particularly clear in communicating his acceptance that the children's stay in New Zealand would be beyond January 2011. The Court found that the trial judge had not erred in his exercise of discretion to decline to order the return of the children.
Acquiescence - Art. 13(1)(a)
The Court held that it had been open to the trial judge to conclude that the father's text messages to the mother were about future contact with the children, and conveyed his acceptance of the children remaining in New Zealand. Consequently, the trial judge had not erred in finding that the father had acquiesced in the children remaining in New Zealand after January 2011.
Objections of the Child to a Return - Art. 13(2)
The Court noted that a distinction had to be made between a child objecting to return, and a finding that a "child objection" defence had been made out. Before finding the defence to have been made out, there must be a finding that: the child has objected, the child is of an age and maturity at which it is appropriate to give weight to his or her views, and that some weight should be given to those views.
The Court noted that it appeared that the trial judge had found that the two older children had valid objections, but that there was a question mark over the independence of those views. The Court held that it should not interfere with those findings.
Author of the summary: Peter McEleavy
INCADAT comment
Nature of Removal and Retention
Preparation of INCADAT commentary in progress.
Anticipated Non-Return
Courts have taken different views with regard to whether it is possible to have an 'anticipated non-return', i.e. whether it is possible for a lawful period of retention to become wrongful prior to the scheduled return date.
This possibility was implicitly accepted in:
United Kingdom - England & Wales
Re S. (Minors) (Child Abduction: Wrongful Retention) [1994] Fam 70 [INCADAT cite: HC/E/UKe 117];
New Zealand
P. v. The Secretary for Justice [2003] NZLR 54, [2003] NZFLR 673 [INCADAT cite: HC/E/NZ 575] (overturned on appeal - see below).
A greater number of courts have though refused to find a retention to be wrongful in advance of the scheduled return date:
China (Hong Kong Special Administrative Region)
B.L.W. v. B.W.L. [2007] 2 HKLRD 193, [INCADAT cite: HC/E/HK 975];
France
Cass Civ 1ère 19/03/2002 (Arrêt n° 516 FS-P, pourvoi n° 00-17692), [INCADAT cite: HC/E/FR 512];
New Zealand
P. v. Secretary for Justice [2004] 2 NZLR 28 [INCADAT cite: HC/E/NZ 583];
United Kingdom - Scotland
Watson v. Jamieson 1998 SLT 180 [INCADAT cite: HC/E/UKs 75];
United States of America
Toren v. Toren, 191 F.3d 23 (1st Cir 1999) [INCADAT cite: HC/E/USf 584].
Autonomous Interpretation of 'Rights of Custody' And 'Wrongfulness'
Conflicts have on occasion emerged between courts in different Contracting States as to the outcomes in individual cases. This has primarily been with regard to the interpretation of custody rights or the separate, but related issue of the ‘wrongfulness' of a removal or retention.
Conflict Based on Scope of ‘Rights of Custody'
Whilst the overwhelming majority of Contracting States have accepted a uniform interpretation of rights of custody for the purposes of the Convention, some differences do exist.A
For example: in New Zealand a very broad view prevails - Gross v. Boda [1995] 1 NZLR 569 [INCADAT cite: HC/E/NZ 66]. But in parts of the United States of America a narrow view is favoured - Croll v. Croll, 229 F.3d 133 (2d Cir., 2000; cert. den. Oct. 9, 2001) [INCADAT cite: HC/E/USf 313].
Consequently where a return petition involves either of these States a conflict may arise with the other Contracting State as to whether a right of custody does or does not exist and therefore whether the removal or retention is wrongful.
New Zealand / United Kingdom - England & Wales
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT cite: HC/E/UKe 809].
A positive determination of wrongfulness by the courts in the child's State of habitual residence in New Zealand was rejected by the English Court of Appeal which found the applicant father to have no rights of custody for the purposes of the Convention.
United Kingdom - Scotland / United States of America (Virginia)
Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 157 L. Ed. 2d 732, 124 S. Ct. 805 (2003) [INCADAT cite: HC/E/USf 494].
For the purposes of Scots law the removal of the child was in breach of actually exercised rights of custody. This view was however rejected by the US Court of Appeals for the 4th Circuit.
United States of America / United Kingdom - England & Wales
Re P. (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971, [2005] Fam. 293, [INCADAT cite: HC/E/UKe 591].
Making a return order the English Court of Appeal held that the rights given to the father by the New York custody order were rights of custody for Convention purposes, whether or not New York state or federal law so regarded them whether for domestic purposes or Convention purposes.
Conflict Based on Interpretation of ‘Wrongfulness'
United Kingdom - England & Wales
The Court of Appeal has traditionally held the view that the issue of wrongfulness is a matter for law of the forum, regardless of the law of the child's State of habitual residence.
Re F. (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224 [INCADAT cite: HC/E/UKe 8].
Whilst the respondent parent had the right under Colorado law to remove their child out of the jurisdiction unilaterally the removal was nevertheless regarded as being wrongful by the English Court of Appeal.
Re P. (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971, [2005] Fam. 293, [INCADAT cite: HC/E/UKe 591];
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT cite: HC/E/UKe 809].
In the most extreme example this reasoning was applied notwithstanding an Article 15 declaration to the contrary, see:
Deak v. Deak [2006] EWCA Civ 830 [INCADAT cite: HC/E/UKe 866].
However, this finding was overturned by the House of Lords which unanimously held that where an Article 15 declaration is sought the ruling of the foreign court as to the content of the rights held by the applicant must be treated as conclusive, save in exceptional cases where, for example, the ruling has been obtained by fraud or in breach of the rules of natural justice:
Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 A.C. 619, [INCADAT cite: HC/E/UKe 880].
Elsewhere there has been an express or implied preference for the general application of the law of the child's State of habitual residence to the issue of wrongfulness, see:
Australia
S. Hanbury-Brown and R. Hanbury-Brown v. Director General of Community Services (Central Authority) (1996) FLC 92-671, [INCADAT cite: HC/E/AU 69];
Austria
3Ob89/05t, Oberster Gerichtshof, 11/05/2005 [INCADAT cite: HC/E/AT 855];
6Ob183/97y, Oberster Gerichtshof, 19/06/1997 [INCADAT cite: HC/E/AT 557];
Canada
Droit de la famille 2675, Cour supérieure de Québec, 22 April 1997, No 200-04-003138-979[INCADAT cite : HC/E/CA 666];
Germany
11 UF 121/03, Oberlandesgericht Hamm, [INCADAT cite: HC/E/DE 822];
2 UF 115/02, Oberlandesgericht Karlsruhe, [INCADAT cite: HC/E/DE 944];
United States of America
Carrascosa v. McGuire, 520 F.3d 249 (3rd Cir. 2008), [INCADAT cite: HC/E/USf 970].
The United States Court of Appeals for the 3rd Circuit refused to recognize a Spanish non-return order, finding that the Spanish courts had applied their own law rather than the law of New Jersey in assessing whether the applicant father held rights of custody.
The European Court of Human Rights (ECrtHR)
The ECrtHR has been prepared to intervene where interpretation of rights of custody has been misapplied:
Monory v. Hungary & Romania, (2005) 41 E.H.R.R. 37, [INCADAT cite: HC/E/ 802].
In Monory the ECrtHR found that there had been a breach of the right to family life in Article 8 of the European Convention on Human Rights (ECHR) where the Romanian courts had so misinterpreted Article 3 of the Hague Convention that the guarantees of the latter instrument itself were violated.
Classifying Consent
The classification of consent has given rise to difficulty. Some courts have indeed considered that the issue of consent goes to the wrongfulness of the removal or retention and should therefore be considered within Article 3, see:
Australia
In the Marriage of Regino and Regino v. The Director-General, Department of Families Services and Aboriginal and Islander Affairs Central Authority (1995) FLC 92-587 [INCADAT cite: HC/E/AU 312];
France
CA Rouen, 9 mars 2006, N°05/04340, [INCADAT cite : HC/E/FR 897];
United Kingdom - England & Wales
Re O. (Abduction: Consent and Acquiescence) [1997] 1 FLR 924 [INCADAT cite: HC/E/UKe 54];
Re P.-J. (Children) [2009] EWCA Civ 588, [INCADAT cite: HC/E/UKe 1014].
Although the issue had ostensibly been settled in English case law, that consent was to be considered under Art 13(1) a), neither member of the two judge panel of the Court of Appeal appeared entirely convinced of this position.
Reference can equally be made to examples where trial courts have not considered the Art 3 - Art 13(1) a) distinction, but where consent, in terms of initially going along with a move, has been treated as relevant to wrongfulness, see:
Canada
F.C. c. P.A., Droit de la famille - 08728, Cour supérieure de Chicoutimi, 28 mars 2008, N°150-04-004667-072, [INCADAT cite: HC/E/CA 969];
Switzerland
U/EU970069, Bezirksgericht Zürich (Zurich District Court), [INCADAT cite: HC/E/CH 425];
United Kingdom - Scotland
Murphy v. Murphy 1994 GWD 32-1893 [INCADAT cite: HC/E/UKs 186].
The case was not considered in terms of the Art 3 - Art 13(1) a) distinction, but given that the father initially went along with the relocation it was held that there would be neither a wrongful removal or retention.
The majority view is now though that consent should be considered in relation to Article 13(1) a), see:
Australia
Director-General, Department of Child Safety v. Stratford [2005] Fam CA 1115, [INCADAT cite: HC/E/UKe 830];
United Kingdom - England & Wales
Re C. (Abduction: Consent) [1996] 1 FLR 414, [INCADAT cite: HC/E/UKe 53];
T. v. T. (Abduction: Consent) [1999] 2 FLR 912;
Re D. (Abduction: Discretionary Return) [2000] 1 FLR 24, [INCADAT cite: HC/E/UKe 267];
Re P. (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971, [2005] Fam. 293, [INCADAT cite: HC/E/UKe 591];
Ireland
B.B. v. J.B. [1998] 1 ILRM 136; sub nom B. v. B. (Child Abduction) [1998] 1 IR 299, [INCADAT cite: HC/E/IE 287];
United Kingdom - Scotland
T. v. T. 2004 S.C. 323, [INCADAT cite: HC/E/UKs 997];
For a discussion of the issues involved see Beaumont & McEleavy, The Hague Convention on International Child Abduction, OUP, 1999 at p. 132 et seq.
Acquiescence
There has been general acceptance that where the exception of acquiescence is concerned regard must be paid in the first instance to the subjective intentions of the left behind parent, see:
Australia
Commissioner, Western Australia Police v. Dormann, JP (1997) FLC 92-766 [INCADAT cite: HC/E/AU 213];
Barry Eldon Matthews (Commissioner, Western Australia Police Service) v. Ziba Sabaghian PT 1767 of 2001 [INCADAT cite: HC/E/AU 345];
Austria
5Ob17/08y, Oberster Gerichtshof, (Austrian Supreme Court) 1/4/2008 [INCADAT cite: HC/E/AT 981].
Considering the issue for the first time, Austria's supreme court held that acquiescence in a temporary state of affairs would not suffice for the purposes of Article 13(1) a), rather there had to be acquiescence in a durable change in habitual residence.
Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles 6/3/2003, [INCADAT cite: HC/E/BE 545];
Canada
Ibrahim v. Girgis, 2008 ONCA 23, [INCADAT cite: HC/E/CA 851];
United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];
In this case the House of Lords affirmed that acquiescence was not to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children.
Ireland
K. v. K., 6 May 1998, transcript, Supreme Court of Ireland [INCADAT cite: HC/E/IE 285];
Israel
Dagan v. Dagan 53 P.D (3) 254 [INCADAT cite: HC/E/IL 807];
New Zealand
P. v. P., 13 March 2002, Family Court at Greymouth (New Zealand), [INCADAT cite: HC/E/NZ 533];
United Kingdom - Scotland
M.M. v. A.M.R. or M. 2003 SCLR 71, [INCADAT cite: HC/E/UKs 500];
South Africa
Smith v. Smith 2001 (3) SA 845 [INCADAT cite: HC/E/ZA 499];
Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841].
In keeping with this approach there has also been a reluctance to find acquiescence where the applicant parent has sought initially to secure the voluntary return of the child or a reconciliation with the abducting parent, see:
United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];
P. v. P. (Abduction: Acquiescence) [1998] 2 FLR 835, [INCADAT cite: HC/E/UKe 179];
Ireland
R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 IR 416, [INCADAT cite: HC/E/IE 285];
United States of America
Wanninger v. Wanninger, 850 F. Supp. 78 (D. Mass. 1994), [INCADAT cite: HC/E/USf 84];
In the Australian case Townsend & Director-General, Department of Families, Youth and Community (1999) 24 Fam LR 495, [INCADAT cite: HC/E/AU 290] negotiation over the course of 12 months was taken to amount to acquiescence but, notably, in the court's exercise of its discretion it decided to make a return order.
Parental Influence on the Views of Children
Courts applying Article 13(2) have recognised that it is essential to determine whether the objections of the child concerned have been influenced by the abducting parent.
Courts in a variety of Contracting States have dismissed claims under Article 13(2) where it is apparent that the child is not expressing personally formed views, see in particular:
Australia
Director General of the Department of Community Services v. N., 19 August 1994, transcript, Family Court of Australia (Sydney) [INCADAT cite: HC/E/AU 231];
Canada
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT cite: HC/E/CA 754];
United Kingdom - England & Wales
Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242 [INCADAT cite: HC/E/UKe 87].
Although not at issue in the case, the Court of Appeal affirmed that little or no weight should be given to objections if the child had been influenced by the abducting parent or some other person.
Finland
Court of Appeal of Helsinki: No. 2933 [INCADAT cite: HC/E/FI 863];
France
CA Bordeaux, 19 janvier 2007, No 06/002739 [INCADAT cite: HC/E/FR 947].
The Court of Appeal of Bordeaux limited the weight to be placed on the objections of the children on the basis that before being interviewed they had had no contact with the applicant parent and had spent a long period of time with the abducting parent. Moreover the allegations of the children had already been considered by the authorities in the children's State of habitual residence.
Germany
4 UF 223/98, Oberlandesgericht Düsseldorf, [INCADAT cite: HC/E/DE 820];
Hungary
Mezei v. Bíró 23.P.500023/98/5. (27. 03. 1998, Central District Court of Budapest; First Instance); 50.Pkf.23.732/1998/2. 16. 06. 1998., (Capital Court as Appellate Court) [INCADAT cite: HC/E/HU 329];
Israel
Appl. App. Dist. Ct. 672/06, Supreme Court 15 October 2006 [INCADAT cite: HC/E/IL 885];
United Kingdom - Scotland
A.Q. v. J.Q., 12 December 2001, transcript, Outer House of the Court of Session (Scotland) [INCADAT cite: HC/E/UKs 415];
Spain
Auto Audiencia Provincial Nº 133/2006 Pontevedra (Sección 1ª), Recurso de apelación Nº 473/2006 [INCADAT cite: HC/E/ES 887];
Restitución de Menores 534/1997 AA [INCADAT cite: HC/E/ES 908].
Switzerland
The highest Swiss court has held that the views of children could never be entirely independent; therefore a distinction had to be made between a manipulated objection and an objection, which whilst not entirely autonomous, nevertheless merited consideration, see:
5P.1/2005 /bnm, Bundesgericht II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT cite: HC/E/CH 795].
United States of America
Robinson v. Robinson, 983 F. Supp. 1339 (D. Colo. 1997) [INCADAT cite: HC/E/USf 128].
In this case the District Court held that it would be unrealistic to expect a caring parent not to influence the child's preference to some extent, therefore the issue to be ascertained was whether the influence was undue.
It has been held in two cases that evidence of parental influence should not be accepted as a justification for not ascertaining the views of children who would otherwise be heard, see:
Germany
2 BvR 1206/98, Bundesverfassungsgericht (Federal Constitutional Court) [INCADAT cite: HC/E/DE 233];
New Zealand
Winters v. Cowen [2002] NZFLR 927 [INCADAT cite: HC/E/NZ 473].
Equally parental influence may not have a material impact on the child's views, see:
United Kingdom - England & Wales
Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72 [INCADAT cite: HC/E/UKe 901].
The Court of Appeal did not dismiss the suggestion that the child's views may have been influenced or coloured by immersion in an atmosphere of hostility towards the applicant father, but it was not prepared to give much weight to such suggestions.
In an Israeli case the court found that the child had been brainwashed by his mother and held that his views should therefore be given little weight. Nevertheless, the Court also held that the extreme nature of the child's reactions to the proposed return, which included the threat of suicide, could not be ignored. The court concluded that the child would face a grave risk of harm if sent back, see:
Family Appeal 1169/99 R. v. L. [INCADAT cite: HC/E/IL 834].