The Court of Appeal of New Zealand
French, Miller and Gilbert JJ
22 November 2020
Subject to appeal
Settlement of the Child - Art. 12(2) | Objections of the Child to a Return - Art. 13(2)
Appeal dismissed, return refused
The parents, both German nationals, lived together and had a child in Germany. In 2014 the mother took the child to New Zealand without the consent of the father. In 2016 the father discovered that they were in New Zealand and made an application to the German Central Authority for the return of the child under the 1980 Hague Convention.
The Family Court, in 2017, and the High Court, in 2018, both held that the child was settled in New Zealand and that her opposition to return should be taken into account.
The father appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal and refused to order the return of the child.
The Court of Appeal disagreed with the High Court, holding that it would be difficult for an abducting parent to demonstrate that a child is settled in her new environment in cases of concealment or subterfuge.
The court held that the child’s views on returning to Germany were based on her misconception that the she would return to Germany alone and were also heavily influenced by the mother.
As no exceptions to return were made out, the Court then considered whether whether the discretion to decline return was correctly exercised, assuming it had existed.
The Court considered the delay occasioned by the appeal process. The majority recognised that this would not generally justify declining to make an order for return if no exception was established at the time of the hearing, however, the possibility of a different outcome could not be excluded where a significant change or circumstances occurring during the appeal process dictated that a return order could no longer be justified.
The Court of Appeal said that, although the paramountcy principle does not apply, the child’s welfare and best interests must be considered and, after reviewing an updated psychologist’s report, the majority held that, while a return order should have been made in 2017, it could not overlook what had occurred in the following two years. The child was now settled in New Zealand and of an age for her views to be taken into account and so no order should be made returning her to Germany.