Berman v Ministry of Justice Central Authority
[2020] NZHC 2145
•24 August 2020
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2344
[2020] NZHC 2145
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of Judicial Review
BETWEEN
BERMAN
Applicant
AND
MINISTRY OF JUSTICE CENTRAL AUTHORITY
Respondent
Hearing: 28 April 2020 with supplementary submissions filed on 10 and 12
May 2020
Appearances:
Applicant in person (by Audio-Visual Link) J B Watson and P J Gunn for the respondent
Date of judgment:
24 August 2020
JUDGMENT OF PALMER J
This judgment was delivered by me on Monday 24 August 2020 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules
………………………… Registrar/Deputy Registrar
Solicitors/Party:
Applicant in person Crown Law, Wellington
BERMAN v MINISTRY OF JUSTICE CENTRAL AUTHORITY [2020] NZHC 2145 [24 August 2020]
Summary
[1] Mr Berman applies for judicial review of decisions by the New Zealand Central Authority (NZCA) in facilitating the return of his children from Australia in 2013.1 I find that the NZCA did not fail to progress the return of the children promptly; the NZCA is not responsible for the delays that occurred in Australia. I also find that the NZCA did not unlawfully disseminate information generated by the Australian authority and did not unlawfully fail to seek reimbursement of Mr Berman’s costs in obtaining the return of the children. So I dismiss the application for judicial review.
[2] However, there are two points of potential illegality, which are not established on the evidence here, but in respect of which I consider the NZCA would be well- advised to review its procedures to ensure they do not occur in future. They are:
(a)where the NZCA or a counsel acting for a left-behind parent provides information to authorities regarding concerns about the welfare of children, the NZCA and/or counsel should also provide to the same authorities any further information they receive that is relevant to those concerns; and
(b)the ability of a left-behind parent to pay the travel costs of the return of their children should not affect whether the NZCA will facilitate the return of the children.
Relevant law of returning a child
[3] The Convention on the Civil Aspects of International Child Abduction (the Convention) is incorporated into New Zealand law as schedule 1 of the Care of Children Act 2004 (the Act). Relevant clauses of the Convention are annexed to this judgment. New Zealand’s obligations under the Convention are given legal effect by sub-pt 4 of pt 2 of the Act. Relevantly:
1 The name “Berman” is fictionalised in order to protect the identities of the children involved, following the pseudonym adopted by the Family Court of Australia in Department of Communities, Child Safety and Disability Services & Berman [2013] FamCA 613.
(a)Section 100 provides that the Secretary for Justice is the NZCA and may not be subjected to any order to pay costs in relation to the exercise of the Secretary’s duties, powers or functions as the NZCA.
(b)Section 102 provides that a person may apply to the NZCA to transmit their claim that a child has been removed from New Zealand to a different Contracting State. If the NZCA is satisfied an application is in accordance with the requirements of the Convention, “the Authority must take on behalf of the applicant any action required to be taken by the Authority under the Convention”.
(c)Section 103 requires the NZCA to take action, including specified appropriate measures, under the Convention to secure prompt return of a child who should not have been removed.
(d)Section 116 requires the NZCA, where an applicant under ss 102 or 103 is unrepresented and “if the circumstances so require”, to appoint a lawyer “to act for the applicant for the purposes of the application”. New Zealand has entered a reservation to the Convention declaring it will not bear legal or court proceeding costs unless they are covered by its system of legal aid and advice. Sections 116(3) and 131 provide for lawyers’ payment.
(e)Section 120(1) provides:
A person who makes an application under section 102 or section 103 … must not be required to provide any security, bond, or deposit for the purpose of guaranteeing the payment of, or to make any payment towards, the costs or expenses of (or incidental to) any proceedings relating to that application.
[4]Section 3 provides the purpose of the Act overall is to:
(a)promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and
(b)recognise certain rights of children.
[5] Section 4 requires that “[t]he welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration . . . in the administration and application of this Act”.
[6] At the relevant time here, ss 15 and 16 of the Children, Young Persons, and Their Families Act 1989 (CYPF Act), provided:
15Reporting of concerns to chief executive or constable
Any person who believes that any child or young person has been, or is likely to be, harmed (whether physically, emotionally, or sexually), ill-treated, abused, neglected, or deprived may report the matter to a social worker or a constable.
16 Protection of person reporting ill-treatment or neglect of child or young person
No civil, criminal, or disciplinary proceedings shall lie against any person in respect of the disclosure or supply, or the manner of the disclosure or supply, by that person pursuant to section 15 of this Act of information concerning a child or young person (whether or not that information also concerns any other person), unless the information was disclosed or supplied in bad faith.
[7] Section 66 imposed a duty on government departments, agents, instruments of the Crown and statutory bodies to supply, to every Care and Protection Co-ordinator, Social Worker or constable, information required for the purposes of determining whether that child is in need of care and protection.
[8] The Guide to Good Practice for central authorities under the Convention includes this guidance:2
To the extent permitted by the powers of their Central Authority and by the legal and social welfare systems of their country, Contracting States accept that Central Authorities have an obligation under Article 7(h) to ensure appropriate child protection bodies are alerted so they may act to protect the welfare of children upon return in certain cases where their safety is at issue until the jurisdiction of the appropriate court has been effectively invoked.
2 Hague Conference on Private International Law Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part I - Central Authority Practice (Jordan Publishing Ltd, Bristol, 2003) at [3.18].
What happened?
[9]The evidence of Ms Patricia Bailey, Manager of the NZCA, is that, in general:
(a)The way the NZCA secures prompt return of a child is by appointing a lawyer for the applicant where the conditions under s 116 are met, and by providing a range of administrative and other support.3
(b)Australia’s Convention duties are implemented by the relevant central authority initiating return proceedings in its own name and the applicant is not a party to those proceedings.4
(c)Once documents supporting an application are transmitted to a central authority in the requested country, it is for the central authority of that country to consider and progress the application.
(d)In relation to the costs of returning a child to New Zealand, “the NZCA requires an undertaking to be provided by a left-behind parent, at the time of making an application for return, to meet the costs of return of the child, if the taking parent is unwilling or unable to do so”.5
[10] In this case, on 5 February 2013, Mr Berman contacted Ms Bailey requesting assistance for the return of his three children from Brisbane, Australia, where they had been taken by their mother.6 On 7 February 2013, under s 116, Ms Bailey instructed Mr Rob Harte, a barrister, to assess whether Mr Berman was entitled to apply for return of the children under s 102, and to provide ongoing legal assistance until return of the children, should their return be ordered. On 13 February 2013, Mr Harte provided an affidavit to Ms Bailey attesting that Mr Berman met the requirements for applying under s 102 for return of the children.7 He also provided to her the application and an agreement signed by Mr Berman to pay for air tickets for the children to fly back to
3 Affidavit of Patricia Bailey, 20 March 2020 (Bailey), at [18].
4 At [19].
5 At [43].
6 At [22]-[33] and associated exhibits.
7 At [44] and Exhibit PB 1.
New Zealand as unaccompanied minors. In his correspondence he said “I have been appointed by the NZCA to bring this application for the father”.8
[11] On 14 February 2013, Ms Bailey transmitted the return application to the Australian Central Authority (ACA). On 18 March 2013, the ACA confirmed it had transmitted the return application to the Queensland State Central Authority (QCA). Ms Bailey enquired about the progress of the application and then expressed concerns to the QCA about the “unexplained significant delay”,9 on 6, 8, 19, 27 March and 12, 18, 22, 26 April 2013. On 29 April 2013, the QCA’s application was served on the mother.
[12] On 7 May 2013, the ACA advised Ms Bailey that the final hearing would be on 29 July 2013 and the Family Court of Australia had ordered a consultant to prepare a report on whether the children objected to being returned. On 16 May 2013, Ms Bailey asked whether the hearing could be brought forward, since it was outside the six-week time period envisaged in art 11, but the date remained unchanged. On 16 July 2013, after interviewing the children, the consultant submitted a report to the Family Court of Australia. The report included allegations about Mr Berman that raised a concern about the welfare of the children. On 23 July 2013, the ACA provided the consultant’s report to the NZCA so it could be provided to Mr Berman. The same day, Ms Bailey emailed it to Mr Harte and to Mr Berman.
[13] On 29 July 2013 the hearing was held in Queensland. On 2 August 2013, Hogan J in the Family Court of Australia ordered the return of the children to New Zealand on or before 16 August 2013, ordered the mother to pay all the necessary expenses associated with the return and, if she failed or refused to do so, ordered her to pay the necessary expenses incurred by or on behalf of the QCA and Mr Berman to the QCA within two days of the QCA making written demand for their reimbursement.10
8 At Exhibit PB 1.
9 At Exhibit PB 9.
10 Exhibit PB 11 (Department of Communities, Child Safety and Disability Services v Berman (P)BRC3111/2013, 2 August 2013) at [2] (repeated in Department of Communities, Child Safety and Disability Services v Berman, above n 1, and Exhibit PB 12, of 23 August 2013 (the reasons judgment)).
[14] On 6 August, the mother indicated she was unable to fund the costs of the children’s return and Mr Berman was asked to make the necessary arrangements. With the help of his family, Mr Berman funded the return of the children to New Zealand at a cost, I understand, of $6,000. There was toing and froing about exactly how the children would be returned but the children returned on 13 August 2013.
[15] On 14 August 2013, Mr Harte advised the NZCA he would notify CYFS and ask them to follow up the matters raised in the consultant’s report, he would offer Mr Berman help with dealing with any fallout and he recorded that Mr Berman “was told to book the flights” and otherwise he would close his file.11 On 20 August 2013, on the basis of the consultant’s report, Mr Harte notified Child, Youth and Family Services (CYFS) of concerns for Mr Berman’s children under s 15 of the then Child, Young Persons and their Families Act 1989. He attached excerpts from the consultant’s report. He advised Mr Berman he had done so because they needed to be investigated even though there was evidence the mother had groomed the children as to their responses. On 9 September 2013, Mr Harte confirmed to Ms Bailey the matter was at an end and said “[t]hank you again for your instructions”.12
[16] On 23 August 2013, the Family Court of Australia issued a “reasons judgment” which explained the reasons for its decision.13 It doubted the allegations in the consultant’s report and noted the consultant’s views had altered in light of additional information. CYFS investigated the allegations and concluded there were no care and protection concerns. There is no evidence before me as to whether the NZCA or Mr Harte sent the reasons judgment to CFYS or whether CFYS had it or not. I gave leave to counsel for the NZCA to provide me with further information, including about whether the reasons judgment was provided to CYFS, but I received no further information about that.
[17] On 20 August 2013, the ACA advised the NZCA that the QCA would not be seeking costs from the mother. In response to further queries from Mr Berman, on 9 September 2013, the QCA advised him directly that his costs were not outside the
11 Affidavit of Mr Berman, 6 May 2019 (Berman, May 2019), at Exhibit D.
12 Bailey, above n 3, at PB 24.
13 The reasons judgment, above n 10.
scope of what normally happens and it did not intend to make written demand of payment by the mother.
[18] Mr Berman’s submissions range widely and include accusations against the NZCA, Crown Law, the Police and others. But, at the hearing, he agreed that his three key points are those I deal with below. Mr Berman seeks declarations and any other orders the High Court can make that would help the protection of children. The NZCA opposes the application.
Issue 1: Did the NZCA fail to promptly progress Mr Berman’s application?
Submissions
[19] Mr Berman submits the NZCA did nothing proactive, to his knowledge, beyond the bare minimum, did not take all reasonable steps afforded to it, and there was no lawful reason for the delay of eight months in the return of his children. He impugns the NZCA’s motives and effectively accuses it of collaborating with the mother in various ways, not all of which are the subject of these proceedings. He submits the NZCA should have: responded more affirmatively when a child was harmed; not attempted to interfere in his attempt to rescue the children; allowed examination of the children’s mental well-being; and he submits it did not organise a safe handover.14
[20] Mr Watson, for the NZCA, submits, by design, there is flexibility under the Convention as to how a central authority discharges its duties. He submits the NZCA clearly discharged its obligations by appointing a lawyer, transmitting the application, regularly and conscientiously enquiring with the ACA and asking it to move the Australian dates forward. He acknowledges there were delays, but a requesting state cannot expedite the court processes of another Contracting State. He submits the NZCA did all it could to discharge its obligations.
14 Submissions of Mr Berman, 12 May 2020, at [20].
Progression of return of children
[21] It is conceivable that undue delay by the NZCA in facilitating an application for return of a child could constitute a ground of judicial review, given the emphasis in the Convention and Act on facilitating a prompt return. But my assessment of the evidence here is that the NZCA acted reasonably promptly to progress Mr Berman’s application for the return of his children. It acted quickly to appoint Mr Harte and to transmit the application to the ACA. It is true that there were delays in Australia, including a delay longer than that envisaged in art 11 of the Convention. But these delays in Australia were not within the control of the NZCA. There was a limit to what the NZCA could do. I consider it did everything it could reasonably be expected to do. I do not consider it should have done what Mr Berman says it should have done. There is no evidence to support Mr Berman’s suspicions of the motives of the NZCA. The NZCA did not fail to promptly progress Mr Berman’s application for the return of his children. I dismiss the application for judicial review on this ground.
Issue 2: Did the NZCA unlawfully disseminate information?
Submissions
[22] Mr Berman submits disseminating other courts’ legal documents is not a lawful function or power of the NZCA and the NZCA was well aware the allegations in the consultant’s report were a fiction but, by distributing them, recreated them. He points to the orders of the Registrar of the Family Court of Australia on 22 July 2013 restricting distribution of the consultant’s report to the parties, their lawyers, the lawyers representing children and relevant legal aid bodies.15 He submits the NZCA did not ask the ACA or Hogan J for permission to disseminate the consultant’s report. He also submits Mr Harte did not send CYFS the reasons judgment which doubted the allegations. He submits Mr Harte was not acting for him and that, if Mr Harte was acting for him, Mr Harte would be in breach of client confidentiality every time he discussed the matter with Ms Bailey. He points to a letter from Mr Harte saying “I act for the New Zealand Central Authority who instructed me to take Mr Berman’s application in Australia . . .”.16 He cites this as evidence the NZCA was influenced
15 Berman, May 2019, above n 11, Exhibit B.
16 Affidavit of Mr Berman, 4 February 2019 (Berman, February 2019), Exhibit B2.
from the start to sabotage his case. He also cites a subsequent refusal by Mr Harte to represent him in a private capacity and a reference in a Court of Appeal judgment to Mr Harte as “counsel for the [NZ] Central Authority”.17
[23] Mr Watson, for the NZCA, submits the consultant’s report was treated as confidential by the NZCA and not published or disseminated to the public but sent only to Mr Berman and Mr Harte and by Mr Harte to CYFS. He submits Mr Harte was appointed by the NZCA to act for Mr Berman, but the nature of his role was influenced by the objects of the Convention and the Act and was to put Mr Berman’s case neutrally rather than to be an advocate for Mr Berman. He submits Mr Harte had a right to notify CYFS, and is protected for doing so by s 15 of the CYPF Act. He submits the report supplied by the ACA to the NZCA was used, in accordance with law, for a valid purpose. He submits there is no evidence that was done in bad faith.
Dissemination of information
[24] The ACA sent the consultant’s report to the NZCA, which sent it on to Mr Berman, and to Mr Harte who sent it to CYFS. Mr Berman is correct there were confidentiality restrictions on the report. But I am not able to determine whether the ACA breached those under Australian law. It may well be, as Mr Watson submitted, that the ACA sent the report to the NZCA pursuant to its own obligations at Australian law to transmit information regarding the welfare of children.
[25] It is clear that, having received the report, it was within New Zealand law for the NZCA and/or Mr Harte to forward the report to CYFS. The Act under which the NZCA and Mr Harte were acting requires the welfare and best interests of a child to be “the first and paramount consideration” in the administration and application of the Act. Despite Mr Berman’s concerns, I am satisfied it was in the best interests of the children at the time for the concerns to be investigated by CYFS. Sections 15 and 16 of the CYPF Act, which applied at the time, legally empowered Mr Harte to notify CYFS of the concerns expressed in the consultant’s report and insulated him from legal challenge for doing so. There is no evidence of bad faith on the part of Mr Harte or the NZCA. Section 66 required the NZCA to notify CYFS. The Hague Convention
17 Exhibit F1; Berman v R [2019] NZCA 487 at [11].
Guide to Good Practice recognises the applicability of such an obligation in the context of the Convention.
[26] The NZCA appointed Mr Harte under s 116 to act for Mr Berman, as an otherwise unrepresented applicant under s 103. Along with his application for the return of his children, Mr Berman also agreed that the NZCA would act on his behalf in respect of his application, so Mr Harte was acting properly in liaising with the NZCA. And it is clear from the evidence that Mr Harte’s involvement assisted the successful determination of Mr Berman’s application.
[27] I do not agree with Mr Harte’s characterisation of his role in one letter as acting for the NZCA; a characterisation also used by the Court of Appeal.18 A lawyer appointed under s 116 acts for the left-behind parent. The wording of the section makes that clear. In terms of confidentiality and information flows, the lawyer’s position may be similar in some ways to the position of a lawyer appointed by a Court to represent the interests of a child, a role to which s 116(3) refers directly.19 There may be complications if the interests of the parent and the NZCA diverge. But that was not the situation here. Mr Harte acted for Mr Berman. Irrespective of that, and even if he had been directly engaged by Mr Berman, there is no legal problem in Mr Harte notifying CYFS, as determined above. Like any lawyer, a lawyer appointed under s 116 owes an independent duty to facilitate the administration of justice.
[28] Mr Harte provided the consultant’s report to CYFS on 20 August 2020. The reasons judgment of the Family Court of Australia was not issued until 23 August 2020. So Mr Harte could not provide it to CYFS at the same time he provided the consultant’s report. Despite the NZCA having the opportunity to provide it, there is no evidence before me as to whether the reasons judgment was provided to the NZCA, Mr Harte or to CYFS. It is quite possible it was not provided to Mr Harte, because the NZCA’s appointment of Mr Harte as Mr Berman’s lawyer expired on return of the children. His provision of the consultant’s report to CYFS appears to have been part of his tidying up of the file. I assume the reasons judgment was provided to the NZCA, though there is no evidence of that before me either.
18 Berman v R, above n 17, at [11].
19 DN v Family Court (No 2) [2019] NZHC 2346, [2019] NZAR 1888 at [27]-[31].
[29] If Mr Harte did receive the reasons judgment, he should have provided it to CYFS, as further information relevant to the information he had already provided them. If he did not, the NZCA, which knew Mr Harte had provided the report to CYFS, should have provided the reasons judgment to CYFS. It would have been unreasonable, and inconsistent with the Act, not to do so. So, in principle, I agree with Mr Berman on that. But the evidence is sufficiently unclear that I cannot tell whether NZCA or Mr Harte provided the reasons judgment to CYFS or not.
[30] I do not uphold the application for judicial review on this ground because Mr Berman’s primary claim that the NZCA unlawfully disseminated information fails. But the NZCA would be well-advised to review its procedures to ensure it provides to other authorities the information it needs to provide in similar situations in the future. To that extent, Mr Berman’s application enjoys a measure of success.
Issue 3: Did the NZCA unlawfully fail to reimburse Mr Berman?
Submissions
[31] Mr Berman submits the NZCA directly instructed him to pay costs and points to an email by Mr Harte to Ms Bailey of 14 August 2013 stating “I can record that Carl was told to book the tickets …. and so on if you think that it would be useful for your file to have these matters confirmed”.20 He submits the NZCA had the mechanism in Hogan J’s judgment to sort costs but failed to obtain costs from the mother. He cites art 22 of the Convention and says he was forced to agree to pay the costs while his children remained “hostages”, if he wanted to see his children. He submits access to recovery of his children was conditional upon him signing the agreement to pay the costs. He submits art 26 does not authorise a central authority to impose costs on the victims of child abduction. He submits at no point did the NZCA tell him he would be lumbered with the costs. He submits it is up to the NZCA to seek an explanation from the ACA as to why it does not feel it should follow the orders of the Family Court of Australia.
20 Berman, May 2019, above n 15, Exhibit D.
[32] Mr Watson, for the NZCA, submits the evidence establishes that Mr Berman agreed to meet the costs of the children’s return travel, consistent with art 26 of the Convention, and he was not directed or instructed to do so. He points to Mr Berman’s agreement to do so on application and to an email by him on 8 August 2013.21 He submits the NZCA is not obliged to meet the costs, consistent with the discretionary nature of article 26(4) of the Convention. He submits the NZCA cannot recover the travel costs from the mother. Rather, it is the QCA which was the applicant before the Family Court of Australia and which had to make written demand and it decided it would not. At the hearing, I understood Mr Watson to submit that, if both Mrs and Mr Berman had been unable to pay the travel costs, the NZCA would have paid them itself. I gave leave for that point to be expanded upon in further written submissions. But the written submissions did not mention that point. They emphasised the qualification in art 26 that a Contracting State may require payment of expenses incurred in implementing the return of a child.
Non-reimbursement of travel costs
[33] The wording of the order of the Family Court of Australia required reimbursement of Mr Berman’s costs from the mother only if the QCA made written demand for that. It did not make written demand. That was not in the NZCA’s control. The NZCA is not subject to legal challenge for that.
[34] Article 22 of the Convention prohibits an undertaking being required to guarantee costs but that extends only to the payment of costs “in the judicial or administrative proceedings”. Article 26 prohibits a central authority imposing charges in relation to applications, including towards the costs of proceedings and legal costs. Article 26 specifically empowers a Contracting State to require the payment of expenses incurred in implementing the return of a child, though it does not say who from. Section 120 of the Act prohibits an applicant being required to guarantee payment or, or making any payment towards, “the costs or expenses of (or incidental to) any proceedings relating to that application”.
21 Bailey, above n 3, Exhibit PB 15, at 2.
[35] Ms Bailey’s evidence is that, in general, “the NZCA requires an undertaking to be provided by a left-behind parent, at the time of making an application for return, to meet the costs of return of the child, if the taking parent is unwilling or unable to do so”.22 She does not say what happens if an applicant does not make such a conditional undertaking, including whether the NZCA transmits or processes the application or not. What if the applicant cannot afford to make such an undertaking? Does the ability of a left-behind parent to pay travel costs of their unlawfully abducted children determine whether NZCA will facilitate the return of the children?
[36] These are matters on which I do not have evidence of policy or practice, despite the opportunity being provided. As a general matter and in principle, I consider it is likely to be unlawful for the NZCA to refuse to facilitate the return of children under the Convention unless the applicant undertakes to pay the travel costs of the children, even on a conditional basis. That would likely be contrary to the objects of the Convention and the purpose of the Act, and contrary to the terms of articles and ss 102 and 103. I stress that there is no evidence this is what the NZCA does. But neither is there evidence it does not.
[37] In this case, Mr Berman offered to pay and did pay for the travel costs for the return of his children. I do not consider there is sufficient contemporaneous evidence to establish that that offer was made under duress. And the QCA’s decision not to make written demand for repayment of the costs from the mother was not within the NZCA’s control. Accordingly, I dismiss the application for judicial review on this ground. But, again, the NZCA would be well-advised to review their procedures to ensure they do not transgress the legal obligations under the Act and the Convention as set out above. To that extent, Mr Berman’s application enjoys another measure of success.
Result
[38] I decline the application for judicial review. However there are two points of potential illegality, which are not established on the evidence here, but in respect of
22 At [43].
which I consider the NZCA would be well-advised to review its procedures to ensure they do not occur in future. They are:
(a)where the NZCA or a counsel acting for a left-behind parent provides information to authorities regarding concerns about the welfare of children, the NZCA and/or counsel should also provide to the same authorities any further information they receive that is relevant to those concerns; and
(b)the ability of a left-behind parent to pay the travel costs of the return of their children should not affect whether the NZCA will facilitate the return of the children.
[39] The NZCA has enjoyed success in having the application for judicial review dismissed but Mr Berman has enjoyed a measure of success in raising issues deserving review in the public interest. Costs will lie where they fall.
Palmer J
Annex: Relevant Provisions of the Convention on the Civil Aspects of International Child Abduction
Article 1 The objects of the present Convention are-
ato secure the prompt return of children, wrongfully removed to or retained in any Contracting State; and
bto ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Article 2
Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.
…
Article 6
A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.
Federal states . . . shall be free to appoint more than one Central Authority … Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State.
Article 7
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures-
ato discover the whereabouts of a child who has been wrongfully removed or retained;
…
cto secure the voluntary return of the child or to bring about an amicable resolution of the issues;
dto exchange, where desirable, information relating to the social background of the child;
…
fto initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
gwhere the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
hto provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
ito keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
…
Article 11
The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.
…
Article 22
No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.
…
Article 25
Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State.
Article 26
Each Central Authority shall bear its own costs in applying this Convention.
Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.
However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.
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