A devastated Kiwi dad is suing Customs and the NZ Police for letting his only child be abducted from New Zealand by his mother, defying a court order.
Both police and Customs knew there was a court order banning the 9-year-old boy's mother from taking him out of the country. Yet less than a week after the order was issued, despite a border alert being flagged, Customs and airport police let the woman board a plane and fly to her home country with her son.
The abduction of his only child has left the father distraught, anxious and unable to sleep, according to his lawyer, Nicola Hansen. She told the Herald the father - whose name is suppressed - "remains traumatised with anxiety, anger and grief at the loss of his only child, and is at a loss as to how this could have happened given the steps he took to protect his son".
A statement of claim Hansen filed with the High Court in Christchurch said the father was "devastated by the loss of his only child. [He] is inconsolable and has suffered tremendous emotional trauma".
"[He] cannot sleep properly, cannot eat regular meals, and cannot properly carry on
his business because of the anxiety, stress, and anger caused by the defendants allowing [his son] to be removed from New Zealand."
Customs told the Herald it was confident officials had followed procedure, and said the organisation would not be commenting further on the case while it was before the courts, referring the Herald to police. Police also declined to comment.
On February 1, 2019, the father obtained a Family Court order under the Care of Children Act 2004 forbidding the boy's removal from New Zealand and for the boy's passport and any plane tickets to be surrendered.
Police and Customs had copies of the order, which required the father or his lawyer to be alerted if anyone tried to take the boy out of New Zealand.
Yet on the night of February 7, the boy and his mother went to Christchurch International Airport and passed through Customs. When the border alert was activated an unnamed Customs officer called an unnamed airport police officer, who spoke to the mother before allowing her and her son to board the plane, according to Hansen's statement.
While the plane was taxiing for departure, the mother texted the boy's father to tell him the boy was on the aircraft and would be going to her home country, where he would grow up with her and her parents.
Frantic, the father tried to get the plane stopped. His lawyer called police and asked them to urgently prevent the plane taking off - but police told the lawyer they do not stop people from removing children from New Zealand in such circumstances.
When the man's lawyer challenged police, the officer said to call the airport. The airport spokesperson told the solicitor the aircraft had taken off and it was too late, around 10.30pm. But the aircraft reportedly did not leave New Zealand airspace for another half hour.
When the Family Court registrar asked police for an explanation the next day, police confirmed the boy had been allowed to fly despite the border alert being activated. "We are trying to establish why this has happened, and will get back to you when we hear further from airport police."
More than three months later no explanation has been forthcoming, according to the statement of claim.
Police have also been asked how they plan to return the boy to New Zealand. They have not answered those requests, despite the father providing the address and phone number of the boy and his mother in her home country, the statement said.
The mother's country is not party to the Hague Convention on the civil aspects of international child abduction, which ensures children will be returned to their home country if they are abducted in breach of the other parent's custody rights.
The boy and his father both have New Zealand citizenship. Dual citizenship is not allowed in the mother's home country, which the statement said would place the boy at a serious disadvantage.
Hansen has filed a statement of claim at the High Court in Christchurch against the Customs officer, the police constable, the Police Commissioner and the Comptroller of Customs. The father is being represented by lawyers Hansen, Dr Gerard McCoy, QC, and Shane Elliott.
They are asking for both the constable and the Customs officer to be found in contempt of court, to be sanctioned, and to pay costs, including any costs of returning the boy to New Zealand, and those relating to the father being unable to work due to his distress.
However, Customs and Police have refused to provide the names of the officers at the centre of the dispute.
The father is also taking action against the Comptroller or chief executive of Customs, and the Police Commissioner, claiming they are vicariously liable for the conduct of their employees.
Although Customs would not comment on the case itself, spokeswoman Jayne McCullum said if a border alert that was placed by an agency other than Customs was triggered, "Customs responds according to alert instructions, which may include a referral to the relevant agency.
"If there is no alert, the traveller is not stopped unless as part of routine screening procedures. Customs is confident that correct procedure was followed by our officers."
The statement of claim said there had been four similar incidents where border alerts had been overridden, allowing children to leave the country.
It called the border alert system "porous, inadequate, insecure and [lacking] effective integrity", in allowing police or other government officials to override, ignore or abuse a court-ordered border alert.
The lawyers are seeking a declaration that the Government has breached its duty to keep children in New Zealand according to a court order and failed in its duty to return the boy to New Zealand.