Court puts to bed ‘uncertainty’ for three siblings who faced separation amid parent’s tug-o-war

Three children faced separation amid a custody dispute between their parents that spanned three courts. Photo / Stock Image 123rf

The “cloud of uncertainty” has finally parted for three children who risked being separated after being caught in a tug-o-war between their mother who wanted them to live in New Zealand and their father who wanted them to return to Europe.

The showdown between the parents, *Jenna and David, has spanned three courts in more than a year following their separation a few years ago.

In the most recent ruling on the family’s case, the Court of Appeal has upheld the High Court’s decision to keep the children in New Zealand.

The judgements, released this month, sets out the background to the dispute, which concerns the parents’ three children, *Jade, Alex and Kelly.

It said that while the parents were originally from New Zealand, the children were all born overseas while Jenna and David were living abroad.

Then a number of years ago, the family relocated from the kids’ birth country to Europe, where they continued to reside until the parents separated.

Following the separation, Jenna brought the children to New Zealand, with David’s consent, for a holiday and to spend time with family.

The Court of Appeal has declined an application by the father to bring another appeal.

They were due to return to Europe in early 2022, but they didn’t, and Jenna has since kept them here with her.

David then began proceedings to have the children returned to Europe under the Hague Convention, which is intended to ensure children who are taken or kept overseas are returned to the country where they usually live.

But Jenna opposed the application, stating there was a “grave risk” that if the kids returned to Europe, it would place them in an “intolerable situation”. She further argued the older children, Jade and Alex, particularly did not want to go back.

The Family Court, which heard the application, ruled that despite Alex’s objections, she and Kelly, the youngest child, should return to Europe. But the court did not make an order for Jade to return.

While David did not go on to challenge the decision regarding Jade, Jenna launched an appeal with the High Court against the order relating to Alex and Kelly.

The lawyer for the children supported the appeal and further evidence was heard from psychologists, and interviews conducted with the family.

The appeal was successful after Justice Rebecca Edwards found that with regard to Alex’s objection to returning to Europe and uncertainties around her living arrangements there, there was in fact a grave risk in sending her back.

While Kelly’s position was less clear, Justice Edwards was ultimately satisfied he should not be ordered to return, with or without Alex.

Following the ruling, David filed an application with the Court of Appeal for leave to challenge the decision, submitting his proposed appeal raised a number of issues of law of wider significance.

He raised concerns around the evidence required to establish relevant risks, that a consideration of the reasonableness of Jenna’s refusal to return was required at the outset of the risk assessment, and that Justice Edwards erred by failing to assess “grave risk” for Kelly first, before considering the position of the oldest child, Jade.

Jenna opposed the application, submitting it raised no issues of general importance or significance that would justify a second appeal.

“Rather, the challenges relate to the essentially factual finding that the separation of the children from their mother, which would be a consequence of an order for return, would contribute to the children being at grave risk of being placed in an intolerable situation if returned to [Europe],” the decision said, referencing her opposition.

Jenna told the senior court another appeal would only delay the resolution of arrangements for the family’s future.

“The children have been under a cloud of uncertainty for over a year already,” she submitted.

After considering the application, Justices Brendan Brown and David Goddard rejected it.

They found the children’s interest in achieving finality, and the interests of justice more generally, favoured declining leave for a further appeal.

“We have concluded that the proposed appeal does not raise any question of law or fact capable of serious argument that involves an interest of sufficient importance to outweigh the delay involved in a further appeal,” their decision stated.

The justices said the parents and the children could now put the litigation behind them.

“Both the mother and the father are loving, capable parents who are actively involved in the lives of their children,” they said.

“We are confident that they can work together, supported by the children’s grandparents, to care for the children with a clear focus on their welfare and their best interests.”

* The names of the parents and their children have been changed for legal reasons.