There is fresh hope today for families trapped in New Zealand by the injudicious application of the Hague Abduction Convention. This doesn’t just affect children born in New Zealand, those born outside of the country also find themselves trapped when one parent refuses to consent to their relocation back to their place of birth.

“The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.”

When applied in New Zealand a local court rarely ever permits children to be removed from the country, regardless of how unfit the remaining parent may be, where the child was born or how the child may benefit from living abroad. Children are effectively regarded as little more than objects belonging to New Zealand, the subtext being it is the best place to raise them.

The Sydney Morning Herald has today run a story about two boys who were ‘abducted’ by their mother from Christchurch and taken to Australia, a court there has wisely allowed them to remain in the country for their own good:

“Family Court refuses to send quake-affected boys back to New Zealand

The Family Court of Australia has rejected an attempt by New Zealand authorities to secure the return of two boys who were unlawfully taken to Sydney by their mother after the 2011 Christchurch earthquakes, finding that the children would be further traumatised if they were ordered home.

The mother of the boys, aged 10 and 12, took them from the devastated city without telling their estranged father and built a new life in Sydney, according to a Family Court judgment published recently.

The woman said she fled the city because her house had been rendered uninhabitable by the powerful quakes, that it was then looted by hooligans and that she had lost her job when her employer went out of business…”

The Australian court also placed great emphasis on the children having a better life in Australia, and it had regard to the undesirability of the father – rather than deciding to make a hard-nosed decision to return the children to New Zealand:

“Both were experiencing a ”higher standard of living than before”, had settled into new schools, found new friends, and built relationships with counsellors.

“They speak freely, they laugh and joke and are full of joy,” the mother told the court.

A family counsellor said the boys ”overwhelmingly and understandably associate New Zealand with [the] earthquakes which they experienced” with one indicating that he never wanted to return.

Further complicating the case was the chequered history of the boys’ father…”

The SMH then catalogued a string of offences committed by the father including a prison sentence and him threatening to kill his partner’s child from another marriage.

Justice Mark Le Poer Trench found of the greatest importance

“the fact that the father and the New Zealand authorities who were helping him did not file the application for the boys’ return under international law until 12 months after they had arrived in Australia.

During this time the boys had ”settled in Australia”, the judge found, and for this reason they should remain.

”Although they clearly still experience problems with behaviour and learning they are as settled as they can be,” he said.” more here

The case is similar to that of ‘abducted’ 4 year old Emma Maddison whose parents took her to her mother’s home country for medical treatment she couldn’t receive in Invercargill.

After a period of time her father Simon returned to New Zealand, leaving Emma in Denmark with her mother. The couple became estranged and Vicki, the mother, decided to remain in Denmark with her daughter so she could continue treatment and make a new life there together. Emma has dual citizenship and a right to live in either country.

A Danish court decided wisely to put the welfare of the child first and allowed her to remain in the country. That was after a vicious media war was waged in New Zealand, including broadcasting photographs of the child without the mother’s consent, favouring the Kiwi father and denigrating his former partner. Calling her a kidnapper even though both parents had taken the child out of the country.

For more read articles tagged Emma Maddison

You should also read

Trapped In NZ – Father Won’t Let Child Leave (October 2010) – A long running Migrant Tale and related discussion.

Huge rise in child abduction cases (June 2013)

“Huge rise in child abduction cases” screams the headline in today’s New Zealand Herald, sure to invoke images of children being dragged from the streets by persons unknown. But read the article and you’ll learn that these abductions are mostly parents taking their children out of the country without the consent of the other parent.

The Herald tells its readers the 54% jump in child abduction cases since 2007 is because parents are being refused legal aid to go before the courts and obtain permission to take their offspring out of New Zealand legally. What it doesn’t tell you is that many of those children are migrants to New Zealand – they hold foreign passports or were born outside of the country. Also, the rise in “abductions” corresponds with a rise in the overall numbers of people leaving New Zealand since 2007, brought on by the GFC and the Christchurch earthquakes…

Japan is about to ratify the Hague Convention,  but with one important difference to some of the other G7 countries that have already encompassed the convention in their own legislation: the Hague proceeding should not cause children more harm than good.

If it wished to New Zealand could also make this important decision because what we’re hearing from our readers (and from the Emma Maddison story) is that in New Zealand the welfare of the child is subordinate to the rights of the parent who chooses to remain in New Zealand – usually the father…”

• Habitual Residence under Brussels II (revised) – Nick Allen, of 29 Bedford Row, looks at the interpretation of habitual residence under Brussels II Revised following the recent judgment of Marinos v Marinos
• Fordham Law Review – International Child Abuduction and the Escape from Domestic Violence – An academic paper outlining the shortfalls of The Hague Convention with regards to Mums who’ve ‘abducted’ their kids to escape domestic violence.
• University of Minnesota CEHD Global Justice – Groundbreaking Research Shows Hague Convention Rules Disadvantage Battered Women

Affected by the subject matter of this article? there is a Facebook support group you may want to contact. https://www.facebook.com/ExpatStuckMums