Q: My ex-wife and I separated last year. We met when I was living in London and we relocated to New Zealand about 10 years ago. Ever since we separated she has talked about going back. She has asked if she can take our 12-year-old daughter to visit her family in the UK for Christmas. Usually I would be fine with that but there are thousands of new cases of Covid-19 every day so it doesn't feel safe. I am worried she may go even if I say no. Can I stop her?
Answer: International travel or relocation is a guardianship decision that must be made jointly between a child's guardians. Your ex-wife cannot unilaterally decide to take your daughter to the UK, temporarily or permanently. If you do not consent there are steps you can take to ensure your daughter is not removed from New Zealand.
Resolving a dispute between guardians
Consider whether there are conditions under which you would be comfortable with your daughter travelling to the UK. You could give your consent provided those conditions are met.
For example, if Covid-19 is your biggest concern, you may feel comfortable with her travelling once she is fully vaccinated. If you are concerned that your ex-wife may not return with her, you can organise for a bond to be paid to the Court that would be released on their return.
You can also request a full itinerary of their travel, organise regular contact through Zoom and a limit on how long the trip can be.
The best way to resolve the dispute is informally between yourselves. If you are struggling to reach an agreement, you may attempt mediation. This can be through using a trusted friend or family member to facilitate the discussion.
You could also attend formal mediation through a Family Dispute Resolution provider such as the FDR Centre or Fairway. If you are on a low income you may be eligible for a subsidy from the Government. Typically these mediations do not involve lawyers.
Order to resolve dispute between guardians
If mediation is unsuccessful or your ex-wife refuses to participate in mediation you may apply to the Family Court for an Order to Settle a Dispute between Guardians. The Court would consider what is in the best interests of your daughter. The Family Court has already been asked to determine cases where parents do not agree to children travelling internationally while Covid-19 is present.
How has the Court dealt with these cases?
The Family Court has considered the destination for travel and any layovers along the way. A key aspect is the destination must be safe for the children. In some cases, they have not allowed to travel until conditions have been met.
Conditions may include vaccination, exclusion of certain travel routes or other safety measures such as mask wearing. Only once those conditions are met can the parent travel with the child.
It is difficult for the court to determine what is considered a "safe" country when the circumstances are changing so quickly. For example, Australia would previously have been considered very safe but not so much recently. There has been no definition of what "safe" is. The Family Courts in other countries have also struggled to determine when travel is safe.
We have seen some cases where travel has been declined outright. In other cases it has been allowed but only when the NZ Travel Advisory declares non-essential travel to be safe.
Most popular options:
1. You wait until it is safe to travel. You may adjourn any further discussions until that time;
2. There is agreement in principle to travel but it will come with conditions;
3. Proceed your dispute through the Family Court which will take many months.
Order preventing removal and border alert
If you are concerned that your ex-wife may take your daughter overseas without your permission, you can apply urgently to the Family Court for an Order Preventing Removal.
While this is in place, your ex-wife will not be able to travel with your daughter outside of New Zealand. The order prevents anyone from removing the child from New Zealand which would mean you could not take her overseas. The Court may require passports or plane tickets to be surrendered to the Court while the order is in place.
At the same time you would need to apply for a border alert. This alert is listed on the customs computer system to stop your daughter being able to go through passport control if trying to leave the country.
You make these applications through a lawyer or on your own. A lawyer will be best placed to guide you through the process. You may qualify for legal aid if you earn a low income or are on the benefit. Legal aid is a loan (not a grant) from the Government that will pay for your legal expenses.
The UK is a signatory of the Hague Convention on child abduction and it provides a process by which a parent can seek have the child returned to their home country.
As the UK is a member of the Hague Convention, there is a presumption that a child should return as quickly as possible to the country in where they normally live.
The Covid-19 pandemic has separated families who do not live in the same country. People are wanting to travel with children to see family they have not seen in a long time. However, the pandemic has made travel decisions much more complicated. You can withhold consent for your daughter to travel internationally. You can apply to the Court for orders preventing travel, but first try to compromise with your ex-wife.
• Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.