The appeal [1] The purposes of the Convention [4] The Convention proceedings [12] The judgment under appeal [24] Competing arguments [31] Issues of delay [36] Implementation of a return order [40] Analysis: Can a return order be discharged? [45] Discretionary issues [61] Role of the Central Authority [63] Result [64]

The appeal

[1] Ms B appeals against a judgment given by Panckhurst J, in the High Court at Christchurch, on 26 February 2008. The Judge dismissed her application to discharge an order to return a child to Tenerife, in the Canary Islands. The return order was made following contested proceedings under those provisions of the Care of Children Act 2004 (the Act) which adopt the Hague Convention on the Civil Aspects of Child Abduction (the Convention) as part of New Zealand’s domestic law: Part 2, sub-part 4 of the Act.

[2] The primary issue is whether there was jurisdiction for the High Court to discharge the return order. There are no statutory provisions empowering any Court to do so. Nor is the subject addressed in the Convention itself. To our knowledge, this is the first occasion on which this issue has arisen in New Zealand in the seventeen years since the Convention was adopted, in April 1991.

[3] Ms B’s application was made under the inherent jurisdiction of the High Court. Panckhurst J held that he lacked jurisdiction to make the order sought but indicated, if jurisdiction existed, he would have granted the application.

The purposes of the Convention

[4] The Convention is an agreement among Contracting States negotiated through diplomatic channels. It establishes a regime by which Contracting States adopt a common approach to issues of forum in cases of child abduction. The Convention, finalised in 1980, is set out in full in Schedule 1 to the Act.

[5] The Convention’s objectives are set out in its preamble. They emphasise “that the interests of children are of paramount importance in matters relating to their custody” and that there is a need “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence”. Although the terms “day-to-day care” and “contact” are now used in New Zealand to denote parental responsibilities for children (see s 8 of the Act), the words…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Butler v Craig

Details

AGLC: Butler v Craig [2008] NZCA 198
Case: [2008] NZCA 198
Decision Date: 1 July 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against a judgment given by the High Court at Christchurch, which dismissed an application to discharge an order to return a child to Tenerife, in the Canary Islands. The appeal was dismissed. The primary issue was whether there was jurisdiction for the High Court to discharge the return order. The Court held that there were no statutory provisions empowering any Court to do so. The Court also held that the subject was not addressed in the Convention itself. The Court noted that this was the first occasion on which this issue had arisen in New Zealand in the seventeen years since the Convention was adopted, in April 1991. The Court concluded that the absence of legislation akin to reg 19A of the Australian regulations confirmed that the High Court had no power to discharge a return order. The Court also held that the general reservation of leave to apply in the High Court’s judgment was insufficient to provide a source of jurisdiction for the order sought. The Court further held that the facts of this case did not demonstrate that it was “impractical” for the order to be implemented. Nor were any “exceptional circumstances” justifying discharge of the order made out. The Court observed that none of the criteria identified in reg 19A of the Australian regulations could have been invoked in this case. The Court also held that refusal to enforce the return order could not be justified. The Court noted that, in the context of an international Convention to which both Australia and New Zealand are parties, it was a significant pointer to refusal of any available discretionary relief.

Orders