New Zealand Child Abduction, Hague Convention, custody law

New Zealand

Child Abduction to New Zealand

New Zealand takes its responsibilities under the Hague Convention on International Child Abduction extremely seriously.

We have successfully represented the 'taking parent' in legal proceedings in New Zealand, through local New Zealand counsel, and we have found the New Zealand courts to be zealous in protecting the rights of parents and children and insistent on abiding fully by the country's treaty obligations.

In our experience, New Zealand interprets rights of custody in an extremely broad fashion, in sharp contrast to the approach in most American states. Thus, in some cases, even when the left-behind parent had no custody order and no equivalent rights under the law of the child's habitual residence, but only had rights of access to the child, the courts in New Zealand have equated such rights to rights of custody and have ordered that the children be returned to their original country. On occasion this has yielded harsh results.

The following information is taken from the U.S. State Department's information circular:

New Zealand provides free legal representation for left-behind parents in Hague cases and absorbs all legal costs for requests. If the location of the child and taking parent is unknown, the Central Authority may call on the services of the New Zealand police to locate the taking parent and child. Once the location of a child is known, the file is referred to the nearest District Court. The court appoints a private lawyer, known as a solicitor, to represent the applicant. The solicitor applies to the court for an order preventing the removal of the child from New Zealand and files an application for return, which is then served on the taking parent. An initial hearing will be scheduled within a few days and negotiations for a voluntary return will start. Further hearings will depend on the circumstances of the case and existing court schedules. Official communications and documents should be channeled through the Central Authorities. However, in some cases the New Zealand solicitor may initiate communication directly with the applicant and/or his/her U.S. lawyer.

The left-behind parent will not be required to attend the New Zealand court proceedings unless there are unusual circumstances. The taking parent will be given at least three weeks notice of the final hearing but is not normally present in court.

The application will be heard in the New Zealand Family Court. All judges of the Family Court are familiar with the Convention and New Zealand's implementing legislation. If an order for return is made and the taking parent chooses not to comply, the solicitor acting for the left-behind parent will apply to the court for a warrant directing the police and/or social worker to take control of the child (known as "uplifting") until he/she can be returned to the country of habitual residence.

The Convention requires that cases be heard expeditiously. On average, most cases take between two and four months to resolve. However, the length of time required depends entirely on the circumstances of each individual case. For example, is the location of the child and the taking parent known? Will the taking parent consent to returning the child voluntarily? Are there many arguments and counter-arguments that need to be examined by the court?

New Zealand's Hague access obligations are provided for in the Guardianship Amendment Act of 1991. Upon receiving an access application, the New Zealand Central Authority will appoint a solicitor in private practice who will attempt to negotiate an access arrangement between the two parties. If that is not successful, the solicitor will file proceedings in court.

Child Abduction Prevention

The following is an extract from New Zealand's answers to a questionnaire submitted by the Hague Conference on Private International Law concerning the Hague Convention on the Civil Aspects of International Child Abduction:

1. Please give details of any civil legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.

Section 4 of the Passports Act 1992 provides that --

(1) --
(2) --
(3) The Minister may refuse to issue a New Zealand passport in any of the following cases:
(b) (iii) The applicant is required by an order made by any New Zealand Court to remain in New Zealand, or to refrain from obtaining a passport, or to surrender a passport:

2. Please give details of any criminal legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.

Section 210 of the Crimes Act 1961 refers to the kidnapping of children.

Abduction of child under 16--

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive any parent or guardian or other person having the lawful care or charge of any child under the age of 16 years of the possession of the child, or with intent to have sexual intercourse with any child being a girl under that age, unlawfully-
(a) Takes or entices away or detains the child: or
(b) Receives the child, knowing that the child has been so taken or enticed away or detained.

(2) It is immaterial whether or not the child consents, or is taken or goes at the childs own suggestion, or whether or not the offender believed the child to be of or over the age of 16.

(3) No one shall be convicted of an offence against this section who gets possession of any child, claiming in good faith a right to the possession of the child.

3. Please give details of any court orders which can be obtained during, for example, divorce or custody proceedings which prohibit, restrict or criminalise removal or retention of a child.

Section 20 of the Guardianship Act 1968 provides for the following preventive measures to be taken;

[20.Preventing removal of children from New Zealand-- [[(1)Any High Court Judge or District Court Judge or, if no High Court Judge or District Court Judge is available, any Registrar of the High Court or of a District Court (not being a constable) who has reason to believe that any person is about to take a child out of New Zealand with intent to defeat the claim of any person who has applied for or is about to apply for custody of or access to the child, or to prevent any order of any Court (including an order registered under section 22A of this Act) as to custody of or access to the child from being complied with, --
(a) May issue a warrant directing any constable or Social Worker to take the child (using such reasonable force as may be necessary) and place it in the care of some suitable person pending the order or further order of the Court having jurisdiction in the case; and
(b) May, in addition, order that any tickets or travel documents (including the passport) of the child, or of the person believed to be about to take the child out of New Zealand, or of both, be surrendered to the Court for such period and upon such conditions as the Court thinks fit.]]
[[(1A)[Section 19B] of this Act shall apply, with all necessary modifications, in relation to every warrant issued under subsection (1)(a) of this section as if every such warrant were a warrant issued under section 19(1) of this Act.]]
(2) Any person against whom an order under subsection (1)(b) of this section is in force may apply to the Court for the discharge of the order, and the Court, in its discretion, may discharge the order accordingly.
(3) Every person commits an offence and is liable on summary conviction to fine not exceeding $500 or to imprisonment for a term not exceeding 3 months or to both who, without the leave of the Court, takes or attempts to take any child out of New Zealand --
(a) Knowing --
(i) That proceedings are pending or are about to be commenced under this Act in respect of the child; or
(ii) That an order of any Court (including an order registered under section 22A of this Act) conferring custody of or access to the child on any other person is in force; or
(b) With intent to prevent any order of any Court (including an order registered under section 22A of this Act) as to custody of or access to the child from being complied with.
(4) No proceedings for contempt of Court shall be taken against any person in respect of any act to which this section applies.]

These orders can be obtained ex parte and after hours.

4. Do you have any comments relating to relocation orders?

The New Zealand Central Authority is unfortunately not in a position to comment as the Authority performs a facilitative role only.

5. Do you have any other comments relating to legislative provisions, court orders or administrative measures including any comments on the effectiveness of these provisions, and how often they are used in practice?

6. Please give details of any court orders which can be obtained in emergency situations. Can these orders be obtained out-of-hours and ex parte?

The above orders may be obtained ex parte.

New Zealand

CARE OF CHILDREN ACT 2004

SUBPART 3—ENFORCING ORDERS INTERNATIONALLY



		Enforcing overseas parenting orders in New Zealand



		81.Registration of overseas parenting orders—


			(1)If the following documents are transmitted to the Secretary, he or she must send them to the Registrar of a District Court:


			(a)a certified copy of an overseas parenting order; and


			(b)a certificate that—


			(i)is signed by an officer of a court in the overseas country in which the order was made; and


			(ii)contains a statement that the order is, at the date of the certificate, enforceable in the overseas country; and


			(c)written information tending to show that any of the following persons is present in New Zealand or is proceeding to, or is about to proceed to, New Zealand:


			(i)the child who is the subject of the order; or


			(ii)a parent of that child; or


			(iii)a person who, under the overseas parenting order, has the role of providing day-to-day care for, or may have contact with, that child.


			(2)The Registrar of the District Court must register the order by filing a certified copy of the order in the Court.


			(3)A Registrar of a District Court who receives the documents referred to in subsection (1) other than from the Secretary may register the order concerned if the Registrar is satisfied that the nature of the documents is such that, if they had been transmitted to the Secretary, the Secretary would have sent them to the Registrar.


			82.Effect of registration—


			(1)If an overseas parenting order is registered in a Court under section 81, then, so long as the registration is not cancelled, the order may be enforced, varied, or discharged as if it were an order made by that Court under this Act.


			(2)This section is subject to sections 83 and 85(1).


			83.Exercise of jurisdiction in respect of child subject to registered overseas parenting order—


			(1)If an overseas parenting order is registered in New Zealand under section 81 and that order relates to the role of providing day-to-day care for a child, or to having contact with a child, or to both of those matters, no Court in New Zealand (other than in proceedings under any of sections 72 to 76) may, in respect of any matter determined by the overseas parenting order, exercise jurisdiction in relation to the child who is the subject of the order unless—


			(a)every person having the role of providing day-to-day care for, or who may have contact with, the child, under the overseas parenting order consents to the exercise of jurisdiction by the Court in the proceedings; or


			(b)the Court is satisfied that there are substantial grounds for believing that the welfare and best interests of the child will be adversely affected if the Court does not exercise jurisdiction in the proceedings.


			(2)If a Court in New Zealand exercises jurisdiction in proceedings relating to the role of providing day-to-day care for, or relating to having contact with, a child who is the subject of an overseas parenting order that is registered in New Zealand under section 81, the Court must not make an order about the role of providing day-to-day care for, or about contact with, the child unless the person who commenced the proceedings satisfies the Court—


			(a)that the child's welfare and best interests are likely to be adversely affected if the order is not made; or


			(b)that there has been such a change in the child's circumstances that the order ought to be made.


			(3)If a Court in New Zealand exercises jurisdiction in proceedings relating to the role of providing day-to-day care for, or relating to having contact with, a child, and does so without notice of the existence of an overseas parenting order relating to that child and that is registered in New Zealand under section 81, any order made by the Court on or after the date of the registration of the overseas parenting order and that is in respect of any matter determined by the overseas parenting order is of no effect.


			84.Variation or discharge of registered overseas parenting order—


			(1)If a Court exercising jurisdiction under sections 56 and 82 makes an order varying or discharging an overseas parenting order, the Registrar of the Court exercising that jurisdiction—


			(a)must forward to the court, or to the appropriate authority, in the prescribed overseas country—


			(i)3 certified copies of the order varying or discharging the overseas parenting order and the reasons for the variation or discharge; and


			(ii)any further material the Court directs; and


			(b)unless he or she is the Registrar of the Court in which the overseas custody order is registered, must forward to the Registrar of that Court a copy of the order varying or discharging the overseas parenting order.


			(2)The Registrar of the Court in which the overseas custody order is registered must, on receiving notice of the discharge or variation of that order, note the Court's records accordingly, and, if the overseas parenting order is discharged, must cancel the registration of that order.


			85.Registered overseas parenting orders not to be enforced in certain circumstances—


			(1)A Court must not enforce an overseas parenting order under section 72 or section 73, and must not exercise jurisdiction in respect of the order under sections 56 and 82, if the Court is satisfied that the order—


			(a)was not, at the time of its registration in New Zealand, enforceable in the country in which it was made; or


			(b)has, since its registration in New Zealand, ceased to be enforceable in the country in which it was made.


			(2)The Registrar of a Court in which an overseas parenting order is registered must cancel the registration of the order and inform the court in the prescribed overseas country of the cancellation if he or she is satisfied that the order is not enforceable in the prescribed overseas country in which it was made, and is satisfied of those matters by—


			(a)documentary evidence the Registrar has received; or


			(b)the refusal of a New Zealand Court, on the grounds stated in subsection (1), to enforce the order under section 72 or section 73, or to exercise jurisdiction under sections 56 and 82 in respect of the order.


			(3)For the purposes of subsection (1), an overseas parenting order is not unenforceable in the country in which it was made just because the child to whom the order relates or any other person affected by the order is no longer in that country.


			86.Evidence of orders made in overseas countries—


			Nothing in section 81 prevents a Court from receiving evidence of an order made in an overseas country (whether or not that country is a prescribed overseas country) and relating to the role of providing day-to-day care for, or relating to contact with, a child.

87.Costs of returning child: order for payment when warrant issued under section 72—


			(1)This section applies to a Court if, for the purpose of enforcing the role, conferred by an overseas parenting order that is registered in New Zealand, of providing day-to-day care for a child, the Court issues, or has issued, in relation to any child, a warrant under section 72.


			(2)The Court may, if it thinks just, make, against any person who has knowingly abducted the child, or who is deliberately holding the child, in contravention of the overseas parenting order, an order for the payment of some or all of the costs of returning the child to the person who, under the overseas parenting order, has the role of providing day-to-day care for the child.


			(3)The costs referred to in subsection (2) may include the costs and travelling expenses of any necessary escort.


			88.Evidence—


			If an application under either sections 56 and 81 or section 87 is heard in a District Court,—


			(a)the evidence of a person beyond New Zealand may be taken in accordance with the rules of the High Court covering the examination of witnesses beyond New Zealand; and


			(b)the High Court Rules, as far as they are applicable and with all necessary modifications, apply accordingly.


			89.Proof of documents—


			(1)For the purposes of sections 72 to 76 and sections 81 to 88,—


			(a)a document purporting to be signed by a Judge, District Court Judge, or officer of a court in a prescribed overseas country must, unless the contrary is proved, be treated as having been so signed without proof of the signature, or judicial or official character, of the person appearing to have signed it; and


			(b)the officer of a court by whom a document purports to be signed must, unless the contrary is proved, be treated as having been the proper officer of the court to sign the document.


			(2)A document purporting to be signed, certified, or verified by a person in subsection (1) must be admitted in evidence in proceedings for the purposes of sections 72 to 76 or sections 81 to 88 if it appears to be relevant to those proceedings.

90.Depositions to be evidence—


			Depositions taken for the purposes of any of sections 72 to 76 or sections 81 to 87 in a court in any prescribed overseas country may be received in evidence in proceedings for the purposes of any of sections 72 to 76 or sections 81 to 87.


			91.Prescribed overseas countries—


			(1)The Governor-General may, by Order in Council, declare a country outside New Zealand to be a prescribed overseas country for the purposes of this Act.


			(2)An order under subsection (1)—


			(a)may specify the courts of the overseas country in relation to which the order is to have effect or otherwise modify the application of that order to that country; and


			(b)may be varied or amended, revoked, or revoked and replaced by a later order of that kind.


			Enforcing New Zealand orders overseas



		92.Enforcement of New Zealand orders overseas—


			(1)Subsection (2) applies to an order (not being an interim order or an order made without notice)—


			(a)made by a Court in New Zealand and about the role of providing day-to-day care for, or about contact with, a child; and


			(b)that may be enforced in a particular prescribed overseas country under provisions corresponding to sections 81 and 82.


			(2)The Registrar of the Court in which the order was made, or last varied, or filed in accordance with section 127, must send to the Secretary for transmission to an appropriate court or authority in that particular prescribed overseas country the information specified in subsection (3) if—


			(a)that Registrar is requested to do so in accordance with section 93; and


			(b)the request is made in writing by, or on behalf of, a person who, under the order, has the role of providing day-to-day care for, or may have contact with, the child.


			(3)The information referred to in subsection (2) is—


			(a)3 certified copies of the order; and


			(b)the information and material (if any) that the Registrar possesses for ascertaining the identity and whereabouts of the child and any other person who is subject to the order; and


			(c)a statement that the order is enforceable in New Zealand; and


			(d)a request in writing that the order be made enforceable in that prescribed overseas country; and


			(e)any other documents and information that the Registrar believes are necessary for securing the enforcement of the order in that prescribed overseas country.


			(4)If a court in a prescribed overseas country has made an order in proceedings about the role of providing day-to-day care for, or about having contact with, a child, being proceedings to which a provision corresponding to section 83(1) and (2) applies, a Court in New Zealand—


			(a)may treat the order as if it were an overseas parenting order registered in New Zealand; and


			(b)may exercise jurisdiction accordingly in respect of the order.


			(5)If a Court exercises jurisdiction under subsection (4), the Registrar of the Court must promptly forward to the court in the prescribed overseas country—


			(a)3 certified copies of the further order of the Court and the reasons for the order; and


			(b)any further material the Court directs.


			(6)If a person has the role of providing day-to-day care for, or may have contact with, a child, under an order made by a Court in New Zealand, nothing in this section prevents that person from—


			(a)obtaining certified copies of the order; or


			(b)applying to a court or other appropriate authority in an overseas country (whether or not it is a prescribed overseas country) for enforcement, or registration and enforcement, of the order in that country.


			(7)Registration in an overseas country of an order made in New Zealand about the role of providing day-to-day care for, or about contact with, a child, does not prevent the expiry of the order or its variation or discharge under this Act.


			93.Restrictions on right to make request under section 92—


			(1)A request may not be made to the Registrar under section 92 in respect of an order about the role of providing day-to-day care for, or about contact with, a child unless,—


			(a)in the case of a request made by, or on behalf of, a person who, under the order, has the role of providing day-to-day care for the child, the person by whom or on whose behalf the request is made—


			(i)believes, on reasonable grounds, that another person will apply, in a prescribed overseas country, for the role of providing day-to-day care for the child; or


			(ii)is unable to have the order enforced in New Zealand because the child was removed from New Zealand, without the consent of that person, during the course of the proceedings in which the order was made:


			(b)in the case of a request made by, or on behalf of, a person who, under the order, may have contact with the child, the person by whom or on whose behalf the request is made believes, on reasonable grounds, that it is necessary to register the order in a prescribed overseas country in order to ensure that the order may be enforced in that country.


			(2)If a request is made to the Registrar under section 92,—


			(a)the Registrar may require the person by whom or on whose behalf the request is made to supply to the Registrar any evidence in support of that request that may be necessary to enable the Registrar to determine whether or not the requirements of this section, as they relate to the making of that request, are met; and


			(b)the Registrar may refuse to take any further action on that request until that evidence is so supplied.


			SUBPART 4—INTERNATIONAL CHILD ABDUCTION


			Preliminary provisions