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Case Name
APN v. TMH (Child Abduction: Grave Risk and Human Rights) [2010] NZFLR 463
INCADAT reference
HC/E/NZ 1224
Court
NEW ZEALAND
Family Court, Christchurch
First Instance
Judge Coyle
States involved
FIJI
NEW ZEALAND
Decision
1 July 2009
Final
Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Issues Relating to Return
Return ordered
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A v A [1996] 2 NZLR 517, [1996] NZFLR 529 (CA); C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER 465, [1989] 1 WLR 654 (CA); Department of Community Services v Carmichael [2008] FamCA 690; Friedrich v Friedrich 78 F 3d 1060 (1996); Genish-Grant v Director-General, Department of Community Services (2002) 169 FLR 127, (2002) FLC 93-111, [2002] FamCA 346; HJ v Secretary for Justice [Habitual residence] [2006] NZFLR 1005, (2006) 26 FRNZ 168; KS v LS [Child Abduction] [2003] 3 NZLR 837, [2003] NZFLR 817, (2003) 22 FRNZ 716; S (a child) (abduction: grave risk of harm), Re [2002] EWCA Civ 908, [2002] 3 FCR 43; S v S [1999] 3 NZLR 513, [1999] NZFLR 625; Secretary for Justice (New Zealand Central Authority) v HJ [2006] NZSC 97, [2007] 2 NZLR 289, [2007] NZFLR 195; SJR v KMLS [Child abduction] [2006] NZFLR 299, (2005) 24 FRNZ 902; TB v JB (abduction: grave risk of harm) [2001] 2 FCR 497, [2001] 2 FLR 515 (CA).
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INCADAT comment
Exceptions to Return
Protection of Human rights & Fundamental Freedoms
Risks associated with the child's State of habitual residence
Implementation & Application Issues
Safe Return / Mirror Orders
SUMMARY
Summary available in
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Facts
In April 2009, the mother took the child to New Zealand for a vacation. Whilst there she filed an application in the Christchurch Family Court for a parenting order seeking that the child be in her primary day-to-day care, and proposing that the father have contact in New Zealand only.
On 19 April, the scheduled day of return, the mother advised the father that she and the child would not be going back to Fiji. On or about 7 May 2009, the father filed a return application in the Christchurch Family Court.
Ruling
Grounds
Grave Risk - Art. 13(1)(b)
It was argued for the mother that due to the political instability alleged to exist in Fiji following the 2006 coup, there was a grave risk of the child experiencing psychological harm or being placed in an intolerable situation should he be returned.
In the light of existing New Zealand case law, the Court noted that if such a defence were to be asserted, it must be based on a sound evidential basis, and not be transitory or illusory. It also noted that a grave risk to a child's return could exist because of political instability.
After considering the reasoning of the U.S. Court of Appeal for the 6th Circuit in Friedrich v. Friedrich 78 F 3d 1060 (6th Cir. 1996) [INCADAT Reference: HC/E/USf 82], the Court held that it must be satisfied that there was a grave risk of harm in returning the child to Fiji prior to the resolution of the substantive dispute as to his care arrangements by the Fijian Courts, and that the Fijian Courts were incapable or unwilling to give the child adequate protection.
The Court found that the evidence fell well short of that threshold. It noted that the travel advice given by the New Zealand Ministry of Foreign Affairs in relation to Fiji was at the lowest level, and that the situation in the country was fairly "normal".
It was also argued that the Court should find a grave risk in that the child would be placed in an intolerable situation because of the uncertainty as to the status and validity of the current Fijian legal system. The Court affirmed that it was not its function to criticise or attack the validity of another jurisdiction without a clear and proper evidential foundation.
Citing S. v. S. [1999] NZFLR 625 [INCADAT Reference: HC/E/NZ 296], the Court noted that a party making such an argument would have to show why the legal system of the country of the child's State of habitual residence could not be entrusted to safeguard the interests of the child pending the outcome of custody and access issues.
The Court held that there was no evidence to support the conclusion that Fiji was unable to safeguard the interests of the child pending the outcome of custody proceedings there. Rather, there was a functioning system of law which would place the child's best interests as the paramount consideration and which, on a day-to-day and practical level, functioned to a high standard.
Human Rights - Art. 20
The Court rejected the mother's argument, based on an alleged breakdown of law and order in Fiji that a return order would lead to a breach of Article 20. The Court held that whilst there may be restrictions upon freedom of movement, freedom of political expression, freedom of the media, and indeed freedom to protest about any aspect of the Government, the evidence indicated that in all other aspects of the day-to-day functioning in the lives of Fijian citizens, little had changed in that country.
Issues Relating to Return
The Court declined to attach any conditions to the return order.
Author of the summary: Peter McEleavy
INCADAT comment
Protection of Human rights & Fundamental Freedoms
Preparation of INCADAT commentary in progress.
Risks associated with the child's State of habitual residence
Article 13(1)(b) has on occasion been raised not with regard to a specific risk directed at the individual child, but as the result of general circumstances prevailing in the State of habitual residence.
In the well-known US appellate case of Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) [INCADAT Reference: HC/E/USf 82], it was held, inter alia, that a grave risk could only exist when the return would put the child in imminent danger prior to the resolution of a custody dispute, e.g. by returning the child to a war zone or famine area.
This argument has been raised most frequently with regard to Israel.
Return to Israel
Courts have been divided over whether a return to Israel would expose a child to a grave risk of harm, but a clear majority has taken the view that it would not, see:
Argentina
A. v. A. [INCADAT Reference: HC/E/AR 487]
Australia
Kilah & Director-General, Department of Community Services [2008] FamCAFC 81 [INCADAT Reference: HC/E/AU 995]
Belgium
No 03/3585/A, Tribunal de première instance de Bruxelles [INCADAT Reference: HC/E/BE 547]
Canada
Docket No 1 F 3709/00; C., 4 December 2001, Superior Court of Justice, Ontario, Court File No 01-FA-10575
Denmark
V.L.K., 11. januar 2002, 13. afdeling, B-2939-01 [INCADAT Reference: HC/E/DK 519]
United Kingdom - England and Wales
Re S. (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908 [INCADAT Reference: HC/E/UKe 469]
France
CA Aix en Provence, 8 octobre 2002, No de RG 02/14917 [INCADAT Reference: HC/E/FR 509]
Germany
1 F 3709/00, Familiengericht Zweibrücken, 25 January 2001 [INCADAT Reference: HC/E/DE 392]
United States of America
Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) [INCADAT Reference: HC/E/USf 133]
However, the argument has been upheld on several occasions:
Australia
Janine Claire Genish-Grant and Director-General Department of Community Services [2002] FamCA 346 [INCADAT Reference: HC/E/AU 458]
United States of America
Silverman v. Silverman, 2002 U.S. Dist. LEXIS 8313 [INCADAT Reference: HC/E/USf 481] (see however: Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/US 530])
Return to Zimbabwe
The highest jurisdiction in the United Kingdom, the House of Lords, rejected in 2008 a submission that the moral and political climate in Zimbabwe was such that any child would be at grave risk of psychological harm, or should not be expected to tolerate having to live there.
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55 [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]
Return to Mexico
CA Rennes, 28 juin 2011, No de RG 11/02685 [INCADAT Reference: HC/E/FR 1129]
The mother mentioned the pollution of Mexico City, the insecurity due to crime in the Mexico City metropolis, and earthquake risks. She did not, however, show how these risks affected the children personally and directly. She had not mentioned those factors as justification for her decision to move to France, in a document sent to the father in 2010, but had referred to financial and family difficulties. In addition, the Court of Appeal noted that these factors had not deterred her from living in Mexico from 1998 to 2010 and raising two children there. It further noted that the mother had not seen fit to apply to the Mexican authorities for permission to move to France with the children, without explaining the reasons which in her view could jeopardise her right to a fair trial in Mexico.
The Court of Appeal made it clear that it did not affirm that the pleas raised by the mother were groundless. They might be used in connection with the issue of custody, but were not a sufficient proof of a grave risk.
(Author: Peter McEleavy, April 2013)
Safe Return / Mirror Orders
A practice has arisen in a number of Contracting States for return orders to be made subject to compliance with certain specified requirements or undertakings. To ensure that such protective measures are enforceable, the applicant may be required to have these measures registered in identical or equivalent terms in the child's State of habitual residence. These replica orders are commonly referred to as ‘safe return' or ‘mirror orders'.
Return orders have been made subject to the enactment of safe return /mirror orders in the following jurisdictions:
Australia
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane), [INCADAT cite: HC/E/AU 294];
United Kingdom - England & Wales
Re W. (Abduction: Domestic Violence) [2004] EWHC 1247, [2004] 2 FLR 499 [INCADAT cite: HC/E/ UKe 599];
Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982];
South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].
A request by the English High Court for protective measures ancillary to an order for international contact to be registered in the State of visitation was upheld by the Panama Second Court of Childhood and Adolescence, see:
Ruling Nº393-05-F, [INCADAT cite: HC/E/PA 872].
A request that a return order be made subject to the implementation of mirror orders was turned down in:
Israel
Family Application 8743/07 Y.D.G. v T.G., [INCADAT cite: HC/E/IL 983].
The Jerusalem Family Court ruled that since accusations against the father had not been upheld there was no basis to impose conditions to ensure the children's safety, other than deposit of money to secure the father's undertaking that they could live in his apartment. There was no need to obtain a mirror order from the US courts as the delay in so doing would harm the children.