Butler v Craig

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.