The Supreme Court of New Zealand
Glazebrook, O’Regan and Ellen France JJ
4 May 2020
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 Court of Appeal (INCADAT Case No. 1484) disagreed with these findings, 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 and 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.
However, the Court of Appeal then turned to consider 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.
The father appealed to the Supreme Court of New Zealand.
The Supreme Court dismissed the appeal.
The father’s argument that the Court of Appeal had no ability to re-assess whether the exceptions to return applied, and so should not have taken more recent evidence into account, was not considered by the Supreme Court to have sufficient prospects of success to justify granting the appeal.