A young girl brought secretly into New Zealand by her mother says she enjoys life here and wants to remain. Photo / File
A young girl brought secretly into New Zealand by her mother says she enjoys life here and wants to remain. Photo / File
EXCLUSIVE: The Hague Convention was designed to discourage parents from taking the law into their own hands by moving children to a different country during bitter separations. Jared Savage reports on a 'particularly unique' case unfolding in New Zealand's courts.
KEY POINTS:
Mother unlawfully takes daughter after father granted custody in European court.
For years, the man had no idea where the girl was until social media campaign went viral.
Father used a "child recovery team" to take girl from her classroom which has left her traumatised.
The FamilyCourt and High Court have both ruled the girl should remain in NZ.
A Court of Appeal judge this week questioned the credibility of the mother's claim should remain in NZ.
The fears of a vulnerable girl who wants to stay in New Zealand will be weighed against the tears of children who might be abducted overseas by their parents in the future.
That is the difficult balancing act faced by three of the country's most senior judges in an international custody battle which has been described as unique.
Caught in the middle is a young girl - referred to as the pseudonym Anna in court proceedings - who was brought secretly into New Zealand by her mother, although her father was granted sole custody in their home country in Europe.
For two years, the man had no idea where his daughter was living until a social media campaign to find her went viral online.
By chance in late 2016, someone recognised the child in New Zealand where the girl and her mother had started a new life.
The father tracked them down and asked the Family Court to return the girl to his home country under the international child abduction agreement, the Hague Convention.
Judge Stephen Coyle - despite accepting the mother unlawfully took the girl and concealed her - refused to make the order because she was now settled in her new country.
She also strongly objected to returning to the country of her birth.
Sending her back to her home country would be an "intolerable situation" and "cataclysmic" for the girl, said Judge Coyle, and returning her was not in the child's best interests.
His ruling on the Hague Convention application was upheld on appeal to the High Court last year.
"The predictable effects of an order for return are much more than tears and mere physical and emotional upheaval," Justice Paul Davison wrote in June 2018.
"Here the effects of an order for return will be harmful and damaging, with potential lifelong consequences."
But the High Court judge pointed out his decision should not be taken as condoning the mother's actions, which he described as an "egregious breach" of her legal obligations.
Generally speaking, the deterrent provisions of the Hague Convention are in place so the "abducting" parent should not gain an advantage from concealment or deceit.
But because the father did not know where his daughter was for two years - because of concealment - this meant the mother could rely on the "settled" defence to keep her daughter in New Zealand.
Justice Davison said was taking advantage of her unlawful conduct in "flouting" the court orders in her home country.
"The respondent's reprehensible actions are the very kind of conduct that the Hague Convention provisions and policies are directed to prevent, and which the courts of all jurisdictions rightly condemn as contrary to the rule of law," said Justice Davison.
"It is important to keep in mind that throughout that extended period, the [father] has been prevented from having any contact whatsoever with his daughter, while the [mother] has had exclusive contact and the opportunity to influence Anna to adopt her attitudes towards the [father], rather than Anna forming her own views independently."
Despite this, Justice Davison ruled Anna's welfare and best interests outweighed the Hague Convention policy provisions.
This week the case was heard afresh in front of Justice Christine French, Justice Forrest Miller and Justice Murray Gilbert in the Court of Appeal.
The father, who flew from Europe for the hearing, argued the case himself without a lawyer.
While not strongly challenging the finding his daughter is now settled in New Zealand, the father disputed how Justice Davison balanced the competing interests.
He submitted not enough weight was given to the deterrent purposes of the Hague Convention, or the concealment of Anna following her wrongful removal from their home country.
If his daughter was not returned, the father said New Zealand would become the destination of choice for parents who choose to flout custody orders in their home country.
"There is a risk you lose a case in one country, you come to New Zealand and get another chance to win," he told the Court of Appeal.
If the girl is sent back to Europe, her mother has said she will stay in New Zealand with her new husband and their youngest child.
The psychological trauma she would suffer as a result of being separated from her mother, step-father and sister was a significant reason for the girl's strong objection to being returned to her father.
But Justice Miller was openly sceptical of the mother's claim she would not follow her daughter back to Europe.
He also noted there is no guarantee the family could stay in New Zealand.
Justice Forrest Miller questioned the credibility of the mother's claim she would not return to Europe. Photo / NZME
Immigration New Zealand wanted to deport them because the mother gave them false information for the visa, although they have since been granted a reprieve.
For his part, the father has said he is willing to share custody with her mother.
Alex Ashmore, the lawyer representing the mother, said the daughter's opposition to leaving New Zealand was not solely based on her belief she would be separated from her mother.
The girl considers herself a Kiwi and enjoys her life with friends and school in New Zealand, while associating her country of birth with conflict between her parents, said Ashmore.
This fear was heightened by an event in September 2017 where the father took her from her classroom with the help of an Australian "child recovery team" following the original ruling of Judge Coyle.
She was taken to Auckland and later returned by police, following an urgent order of the Family Court.
The mother described the incident as an abduction which created "extraordinary fear and stress".
In response, the father said he took the extraordinary step to re-establish contact with his daughter whom he had not seen in nearly five years.
In the High Court ruling, Justice Davison noted the only custody order in place for Anna was the one issued by the European court, which noted the mother's conduct showed she would not release her daughter without "direct force".
However, the trauma of being taken from school has cemented Anna's strong objection to being returned to her father.
"I was shaking so much, I was scared. They just took me, I thought I was going to die," the girl said, according to the report of an expert psychologist which was read to the Court of Appeal.
The girl had trouble sleeping and was afraid it would happen again, which Dr Sarah Calvert said was consistent with Post Traumatic Stress Disorder.
"Extremely unwise" was how Justice Miller described the father's attempt to reconnect with his daughter.
Given the girl's fear, the uplift may be a significant factor in the Court of Appeal's final decision about whether to send her back to her home country.
The courts in their home country awarded sole custody to him after the mother repeatedly refused to let him see their daughter.
"The ingrained resentment the mother holds against the father, now significantly impairs the mother's ability to raise her daughter ... with her actions, the mother wilfully and significantly disregards the interests of her daughter," the European court judgment said.
The girl's mother has claimed in court documents the custody battle was "vexatious" and "relentless harassment" which made their lives "unbearable".
Justice Miller noted the European courts never issued a protection order against the father for the alleged "stalking" and said it was unsurprising the father would try to maintain a relationship with his daughter.
"She kept moving, he followed her around," the judge said. "One of the difficulties with this case is the mother has gone to extraordinary lengths to do exactly what is not in the best interests of the child."
Alex Ashmore said he could not excuse the mother's actions.
"When you look at the file, you think that's not fair. Why should someone be rewarded for hiding?
"But at the end of the day, Anna didn't hide. Her mother did."
And despite who was right or wrong, a leading family law expert said the Hague Convention was for the benefit of the child - not the parents.
Margaret Casey, QC, was representing the Central Authority, part of the Justice Ministry, which administers Hague Convention proceedings in New Zealand.
She said Anna's case was "particularly unique", even internationally, because it featured concealment of a child who was now settled.
"Concealment is at the heart of the Hague Convention. This is exactly the kind of case. The question is what do you do with the other side of the balancing process," said Casey.
"Essentially this court will be asked to weigh her tears against the tears of children who may yet be abducted. All those children out there who need to be protected."
Justice French said the ruling of the Court of Appeal would be released at a later date.
"This is a very difficult case and a very important one."
Global custody battle
• February 2017: Application lodged with Family Court to return Anna to her father in their homeland.
• May 2017: Immigration NZ issued deportation liability notice against mother for concealing relevant information in visa application.
• September 2017: Family Court rules girl should not be returned to father in homeland.
• October 2017: Immigration and Protection Tribunal cancels deportation notice and issues new visas.
• June 2018: High Court releases full reasons upholding the decision of the Family Court.
• July 2019: Court of Appeal hears 'particularly unique' case which raises difficult balancing exercise for Hague Convention.
