How to apply under the Hague Convention for the return of a child taken to New Zealand

Introduction

The abduction of a child by a parent is a very serious matter, especially when the child is taken to another country. This has been recognised internationally by Hague Convention on the Civil Aspects of International Child Abduction, which provides a framework for the return of children if they are taken to another country.

To apply under the Hague Convention for the return of your child you can either contact the authorities in your own country, or apply to the New Zealand Secretary of Justice, or apply to the NZ courts (see below).

Is your country of residence a "contracting State" with New Zealand?

To determine whether the Hague Convention can be used to secure the return of a child from New Zealand you must establish whether your resident country is a "contracting State" with New Zealand, which means a state that is a party to the Convention and that has entered into a reciprocal agreement with New Zealand.

To find out whether your country of residence is a "contracting State" with New Zealand, you should contact the Treaty Officer at the NZ Ministry of Foreign Affairs and Trade.

Who do I apply to for the return of my child under the Convention?

The obligations of countries that are parties to the Hague Convention are administered by each country’s "Central Authority". New Zealand’s "Central Authority" is the Secretary for Justice. You may use one of three methods to begin proceedings for the return of your child:

• contact the Central Authority in your own country, who will in turn contact the Secretary of Justice in New Zealand
• contact the New Zealand Secretary of Justice directly
• petition the New Zealand Family Court or District Court for your child to be returned

What should I include in my application?

Your application should be in writing and should contain:

• proof that the child is in New Zealand and that you can identify the child, the other party and their possible location
• proof that the child was removed from another contracting State in breach of your custody rights, which you were exercising at the time

What happens next if my application is successful?

If your application is complete, a District Court Judge or Registrar will issue a warrant authorising a Police officer or a social worker to take possession of the child.

Can the other party object to the child being returned?

The other party may apply to the court for it to refuse to order the child’s return. To do this the other party must make out one of the following grounds:

• The application was made more than one year after the child was removed and the child is now settled.
• You (the applicant) consented to the child being removed.
• You were not in fact exercising your custody rights.
• There is a grave risk that returning the child would expose him or her to physical or psychological harm, or would otherwise place the child in an intolerable situation.
• The child objects to being returned, and it is appropriate given the child’s age and maturity to take his or her views into account.

But even if one of these grounds is established the judge has a discretion to order the child to be returned.

What do I do if the Hague Convention doesn’t apply to my case?

If your country of residence has not contracted with New Zealand, you will need to apply to the New Zealand Family Court, who will determine whether it is in the child’s best interests to be returned.

Custody issues

The Hague Convention’s approach separates the issues of return and custody. The Convention assumes that the country of the child’s usual residence is best suited to deal with the issue of who should have custody of the child.

Cautionary notes

• The Family Court has indicated that even if the Hague Convention does not apply directly, the court will consider the Convention’s objectives and principles when deciding if children brought to New Zealand should be returned to their country of residence. It is advisable to obtain advice from a New Zealand lawyer, who will be familiar with the system and will be able to guide you through it.