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Case Name
RCL v. APBL [2012] NZHC 1292
INCADAT reference
HC/E/NZ 1231
Court
NEW ZEALAND
High Court of New Zealand, Invercargill Registry
Appellate Court
Judge Gendall
States involved
UNITED KINGDOM
NEW ZEALAND
Decision
11 June 2012
Final
Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a)
Appeal dismissed, return ordered
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Re H and Re S (abduction: custody rights) [1992] NZFLR 84 (HL); Secretary for Justice v SB (Retention: Habitual Residence) [2006] NZFLR 1027; AHC v CAC FC Auckland FAM-2010-004-002326, 7 January 2011; AHC v CAC [2011] 2 NZLR 694, [2011] NZFLR 677; Punter v Secretary for Justice [2004] 2 NZLR 28 (CA); Re S [1998] 1 FLR 651; AL v RCL [2012] NZFC 1549 at [16]; SK v KP [Habitual Residence] [2005] NZFLR 1064; Re F (a minor) (abduction: custody rights abroad) [1995] 1 Fam 224; Re S (child abduction: delay) [1998] 1 FLR 651.
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INCADAT comment
Aims & Scope of the Convention
Nature of Removal and Retention
Anticipated Non-Return
Habitual Residence
Exceptions to Return
Acquiescence
SUMMARY
Summary available in
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Facts
In May 2010, following mediation, the parents agreed to share equal care of the children in the United Kingdom. As part of this agreement, the mother was to make an extended trip to New Zealand, via South Africa, with the boys. This was to last from August 2010 until March 2011.
Three weeks into the trip, the mother advised the father that she would not be returning. The father did not agree to the children staying in New Zealand. The mother advised that the father could collect and bring the children back in March 2011.
In January 2011, the parents agreed that the children could remain in New Zealand until the younger boy was due to start school in November 2012. Thereafter the boys would live in the United Kingdom. The father visited the children in late February / early March 2011.
In late May, the mother took the children to the United Kingdom for an 18-day vacation. On 12 June, the mother advised the father that she would never return the children. Mother and children went back to New Zealand on 16 June. The father filed an application with the United Kingdom Central Authority for the return of the children on 31 August 2011.
On 14 November 2011, the father's return application was filed in the Family Court in Queenstown. On 1 March 2012, the Family Court at Queenstown ordered the return of the children. The Family Court found that a wrongful retention had first occurred as a consequence of the initial decision of the mother in September 2010 that she and the boys would not be returning to the United Kingdom.
The Count found that that wrongful removal had been "cured" by the subsequent agreement on 9 January 2011 that the children could further remain in New Zealand until the autumn of 2012. The Court subsequently found there to have been an anticipatory breach of the varied agreement leading to a wrongful retention on 12 June 2011.
The Court found none of the exceptions of the Hague Child Abduction Convention to be applicable. The mother appealed.
Ruling
Grounds
Habitual Residence - Art. 3
It was argued for the mother that as the children had been in New Zealand since August 2010, with only a short vacation in England, their habitual residence could only be in New Zealand. Moreover they had started pre-school there and the mother had made clear that her habitual residence was in New Zealand.
The Court noted that the unilateral purpose of one parent could not change the habitual residence of a child, because to hold otherwise would go against the policy of the 1980 Hague Child Abduction Convention and provide encouragement for abduction and retention. However, it held that a very lengthy period of residence, even in such a situation, might eventually change a child's habitual residence.
A length of a child's stay was a factor to take into account, but only one factor, with the purpose of the stay and strength of ties to the existing State also to be considered. Even in cases where residence in another State was intended to be for a limited, defined period, followed by return to an existing habitual residence that would not automatically lead to a finding that habitual residence remained in the former home State.
The Court affirmed that in the present case there was no agreement that the children's habitual residence was to be abandoned. The father had not consented to the boys remaining permanently or indefinitely in New Zealand. Rather, the period during which they were to be permitted to remain there was fixed at about 18 months.
The 10 months spent in New Zealand was simply one of many factors to consider. The Court concluded that the habitual residence of the boys had not changed from the United Kingdom to New Zealand at the time of the anticipatory breach of the agreement.
Removal and Retention - Arts 3 and 12
It was argued for the mother that there was no actual agreement that she would return the children to the United Kingdom. The Court reviewed all of the dealings between the parties between August 2010 and June 2011.
It found that the terms upon which the father was agreeing to extend his consent to the boys remaining in New Zealand after March 2011 were not settled, nor was the manner in which shared care, access, travel from, maintenance and other arrangements were to be determined in the United Kingdom. However, the Court found that there was a clear agreement that the boys could remain in New Zealand only until November 2012, this time frame having been accepted by the mother in January 2011.
It was further submitted that the Convention did not apply at all to the children because they were not outside the United Kingdom at the time of the alleged "retention" on 12 June 2011. The Court noted that this would mean that that a wrongful retention may not necessarily arise when there was an anticipatory breach of an agreement which occurred inside the original State of habitual residence.
The Court reviewed New Zealand case law on "anticipatory breach" of custody rights. It accepted that there could be such a breach, finding that otherwise the whole foundation under which children were lawfully removed to be within the custody or care of that parent in another country would be undermined.
The Court noted the contrary view of the New Zealand Court of Appeal in Punter v. Secretary for Justice (Punter No 1), but held that this interpretation should be confined to similar cases. Punter was a shuttle custody case in which the majority held that simply applying for custody (without more) was not "retention".
The mother argued that there had been no retention in June 2011 because the children were in the United Kingdom, and no wrongful removal on 16 June 2011 because the father had consented to the boys going to New Zealand - having done nothing to stop their departure.
The Court rejected this argument finding that it would enable the "possessing" parent to time their anticipatory repudiation of the agreement by which they had been permitted to remove the children and/or retain them outside their habitual residence, with the effect that the wronged parent would be deprived of their rights.
The Court held that if not consented to, or acquiesced in, the action of 16 June 2011 was a wrongful removal by the mother through her implementing, by departure with the children, her expressed intention to later retain them wrongfully.
The Court affirmed that a removal for Convention purposes occurred when a child is taken across the frontier of his State of habitual residence. In the present case, it occurred in two possible respects, first, through the anticipatory breach of the refusal to return at the agreed time, and secondly, through the wrongful removal of the children on 16 June 2011.
The Court held that since a wrongful retention was not a continuing state of affairs, if a child were wrongfully removed but then returned, even for a very short period of time to its State of habitual residence, any subsequent removal would be a new "wrongful removal" and the time for the purposes of Article 12 would start to run from the date of the new removal.
In the present case, the initial removal was not wrongful, but the anticipatory breach and repudiation which entitled the father to cancel the agreement meant that the subsequent removal itself became wrongful if the children were being removed without the father's true agreement.
Consent - Art. 13(1)(a)
Acquiescence - Art. 13(1)(a)
It was submitted that the father had acquiesced or consented through his actions on 16 June 2011, by not opposing the children travelling to New Zealand. The Court found that the father retained some hope that the agreement might be honoured at the completion of the agreed duration.
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].
Habitual Residence
The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.
Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.
General Trends:
United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.
Child Centred Focus
The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:
Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]
Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].
See also:
Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].
Combined Child's Connection / Parental Intention Focus
The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.
The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].
See also:
Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].
In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.
Parental Intention Focus
The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.
This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:
Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;
Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;
Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.
The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:
Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];
Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].
It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.
Other Jurisdictions
There are variations of approach in other jurisdictions:
Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).
8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].
Canada
In the Province of Quebec, a child centred focus is adopted:
In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.
Germany
A child centred, factual approach is also evident in German case law:
2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].
This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:
Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998 [INCADAT Reference: HC/E/DE 233].
The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.
Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:
Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];
Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].
However, reference has been made to a more child centred approach in other cases. See:
decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;
FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].
New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See
S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].
Switzerland
A child centred, factual approach is evident in Swiss case law:
5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].
United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:
R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;
R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.
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.