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CASE

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Case Name

Adams v. Wigfield [1993] 11 FRNZ 270

INCADAT reference

HC/E/NZ 89

Court

Country

NEW ZEALAND

Name

High Court at Hamilton

Level

Appellate Court

Judge(s)
Hammond J.

States involved

Requesting State

AUSTRALIA

Requested State

NEW ZEALAND

Decision

Date

30 September 1993

Status

Final

Grounds

Grave Risk - Art. 13(1)(b) | Undertakings | Procedural Matters

Order

Appeal dismissed, return ordered

HC article(s) Considered

12 13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to
Re A. (A Minor) (Abduction) [1988] 1 FLR 365, [1988] Fam Law 54; C. v C. (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465; D. v D. [1993] NZFLR 548; Director-General of Family and Community Services v Davis (1990) 14 Fam LR 381; Gsponer v Johnstone (1988) FLC 92-001, (1989) 12 Fam LR 755; L. v L. [1992] NZFLR 523; W. v W. (1993) 10 FRNZ 174.
Published in
http://www.hcch.net/incadat/fullcase/0089.htm

INCADAT comment

Exceptions to Return

Grave Risk of Harm
Economic Factors

Implementation & Application Issues

Measures to Facilitate the Return of Children
Undertakings
Procedural Matters
Costs

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a boy, was born on 15 June 1990. The parents were not married. On 28 September 1991 they moved from New Zealand to Australia to attempt a reconciliation. They separated on 30 November 1991.

On 1 May 1992 the Brisbane Family Court made the parents joint guardians of the child, with the mother being granted sole custody and the father access. Both parties were restrained from removing the child from Australia without the consent in writing of the other. The mother was however given specific permission to take the child from Australia for two weeks in early June.

Pursuant to the order the mother went to New Zealand with the child but she did not return.

On 14 August 1992 the father applied for the return of the child. On 10 September 1993 the District Court of Hamilton ordered the return of the child to Australia.

The mother appealed.

Ruling

Appeal dismissed and return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of harm had not been met.

Grounds

Grave Risk - Art. 13(1)(b)

The fact that the mother would be substantially personally disadvantaged in pursuing her rights to custody of her son was not relevant. It was the effect on her child which had to be evaluated. The evidence fell far short of the test posed by s.13 of the Guardianship Amendment Act which implemented the Convention into New Zealand law.

Undertakings

Unless a statute specifically provided that an order could not be made on terms or with certain undertakings, then such could be required. The High Court found that the trial judge was correct in holding that he had jurisdiction to impose undertakings. He was also corect in refraining from doing so.

Procedural Matters

The court exercised its discretion under s. 12 of the Guardianship Amendment Act 1991 to order the father to pay the costs of the child's return to Australia.

INCADAT comment

Economic Factors

Article 13(1)(b) and Economic Factors

There are many examples, from a broad range of Contracting States, where courts have declined to uphold the Article 13(1)(b) exception where it has been argued that the taking parent (and hence the children) would be placed in a difficult financial situation were a return order to be made.

Australia
Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT Reference: HC/E/AU 293]

The fact that the mother could not accompany the child to England for financial reasons or otherwise was no reason for non-compliance with the clear obligation that rests upon the Australian courts under the terms of the Convention.

Canada
Y.D. v. J.B. [1996] R.D.F. 753 (Que. C.A.) [INCADAT Reference: HC/E/CA 369]

Financial weakness was not a valid reason for refusing to return a child. The Court stated: "The signatories to the Convention did not have in mind the protection of children of well-off parents only, leaving exposed and incapable of applying for the return of a wrongfully removed child the parent without wealth whose child was so abducted."

France
CA Lyon, 19 septembre 2011, No de RG 11/02919 [INCADAT Reference: HC/E/FR 1168]

The existence of more favourable living conditions in France could not be taken into consideration.

Germany
7 UF 39/99, Oberlandesgericht Bamberg [INCADAT Reference: HC/E/DE 821]

New Zealand
K.M.A. v. Secretary for Justice [2007] NZFLR 891 [INCADAT Reference: HC/E/NZ 1118]

Financial hardship was not proven on the facts; moreover, the Court of Appeal considered it most unlikely that the Australian authorities would not provide some form of special financial and legal assistance, if required.

United Kingdom - England and Wales
In early case law, the Court of Appeal repeatedly rejected arguments that economic factors could justify finding the existence of an intolerable situation for the purposes of Article 13(1)(b).

Re A. (Minors) (Abduction: Custody Rights) [1992] Fam 106 [INCADAT Reference: HC/E/UKe 48]

In this case, the court decided that dependency on State benefits cannot be said in itself to constitute an intolerable situation.

B. v. B. (Abduction: Custody Rights) [1993] Fam 32, [1993] 2 All ER 144, [1993] 1 FLR 238, [1993] Fam Law 198 [INCADAT Reference: HC/E/UKe 10]

In this case, it was said that inadequate housing / financial circumstances did not prevent return.

Re M. (Abduction: Undertakings) [1995] 1 FLR 1021 [INCADAT Reference: HC/E/UKe 20]

The Court suggested that the exception might be established were young children to be left homeless, and without recourse to State benefits. However, to be dependent on Israeli State benefits, or English State benefits, could not be said to constitute an intolerable situation.

United Kingdom - Scotland
Starr v. Starr, 1999 SLT 335 [INCADAT Reference: HC/E/UKs 195]

IGR, Petitioner [2011] CSOH 208  [INCADAT Reference: HC/E/UKs 1154]

Switzerland
5A_285/2007/frs, IIe Cour de droit civil, arrêt du TF du 16 août 2007 [INCADAT Reference: HC/E/CH 955]

Zimbabwe
Secretary For Justice v. Parker 1999 (2) ZLR 400 (H) [INCADAT Reference: HC/E/ZW 340]

There are some examples where courts have placed emphasis on the financial circumstances (or accommodation arrangements) that a child / abductor would face, in deciding whether or not to make a return order:

Australia
Harris v. Harris [2010] FamCAFC 221 [INCADAT Reference: HC/E/AU 1119]

The financially precarious position in which the mother would find herself were a return order to be made was a relevant consideration in the making of a non-return order.

France
CA Paris, 13 avril 2012, No de RG 12/0617 [INCADAT Reference : HC/E/FR 1189]

In this case, inadequate housing was a relevant factor in the consideration of a non-return order.

Netherlands
De directie Preventie, optredend voor zichzelf en namens Y (de vader /the father) against X (de moeder/ the mother) (7 February 2001, ELRO nr.AA9851 Zaaknr:813-H-00) [INCADAT Reference: HC/E/NL 314]

In this case, financial circumstances were a relevant factor in the consideration of a non-return order.

United Kingdom - Scotland
C. v. C. 2003 S.L.T. 793 [INCADAT Reference : HC/E/UKs 998]

An example where financial circumstances did lead to a non-return order being made.

A, Petitioner [2011] CSOH 215, 2012 S.L.T. 370 [INCADAT Reference: HC/E/UKs 1153]

In this case, adequate accommodation and financial support were relevant factors in the consideration of a non-return order.

European Court of Human Rights (ECrtHR)
Šneersone and Kampanella v. Italy (Application No 14737/09) [INCADAT Reference: HC/E/ 1152]

The ECrtHR, in finding that there had been a breach of Article 8 of the European Convention on Human Rights (ECHR) in the return of a child from Latvia to Italy, noted that the Italian courts exercising their powers under the Brussels IIa Regulation, had overlooked the fact that it was not financially viable for the mother to return with the child: she spoke no Italian and was virtually unemployable.

(Author: Peter McEleavy, April 2013)

Undertakings

Preparation of INCADAT case law analysis in progress.

Costs

Preparation of INCADAT commentary in progress.