McDonald v Sanchez
[2024] NZHC 2110
•31 July 2024
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. THIS IS AN ANONYMISED VERSION OF THE JUDGMENT. FOR FURTHER INFORMATION, PLEASE
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IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2023-425-115
[2024] NZHC 2110
UNDER the Care of Children Act 2003 IN THE MATTER
of an appeal against a decision of the Family Court at Queenstown
BETWEEN
McDONALD
Appellant
AND
SANCHEZ
Respondent
Hearing: 23 April 2024 Counsel:
J G D Guest and K P Lane for Appellant
I M Blackford and J M Gandy for Respondent S N van Bohemen Lawyer for Children
Judgment:
31 July 2024
JUDGMENT OF OSBORNE J
Introduction
[1] This is an appeal from a judgment of Judge Dravitzki ordering that the 13-year- old son and 11-year-old daughter of the parties be returned to Spain (Judgment).1
1 Sanchez v McDonald [2023] NZFC 12247 [Judgment]. The names of the parties have been anonymised in this judgment, as have the names of associated entities.
McDONALD v SANCHEZ [2024] NZHC 2110 [31 July 2024]
[2] The respondent (the mother) brought an application under s 105 of the Care of Children Act 2004 (the Act). Section 105 and related provisions are within subpt 4 of pt 2 of the Act. They incorporate into New Zealand law the Hague Convention on the Civil Aspects of International Child Abduction (the Convention).2 A prerequisite for making a s 105 order that the children be returned to Spain was that they were habitually resident in that country immediately before their removal to New Zealand. The respondent submitted Spain was their country of habitual residence. The appellant (the father) submitted it was New Zealand, as did Mr van Bohemen as lawyer for the children. In the event the children were found to have been habitually resident in Spain at that time, the appellant and Mr van Bohemen submitted s 106 exceptions applied, and that the Court should in its discretion refuse the application.
[3]The Judge granted the application. He found:
(a)the children’s habitual residence at the date of their allegedly unlawful retention in New Zealand (found to be 16 December 2022) was Spain;
(b)the appellant had established (pursuant to s 106(1)(d) of the Act) the children objected to being returned and that it was appropriate to give serious consideration to their views;
(c)the appellant had not established (pursuant to s 106(1)(b)(ii) of the Act) that the respondent had “consented to or later acquiesced in the removal” of the children;
(d)the appellant had not established (pursuant to s 106(c)) there was a grave risk the children’s return to Spain would expose them to psychological harm or otherwise place them in an intolerable situation; and
(e)the appropriate course in the exercise of the Family Court’s discretion was to make an order for the return of the children to Spain.
2 Hague XXVIII (opened for signature 25 October 1980, entered into force, 1 December 1).
[4] The appellant appeals two aspects of the judgment, being the finding of habitual residence and the exercise of the discretion. The Judge’s rejections of the appellant’s acquiescence and grave risk grounds are not appealed by the appellant. The respondent has not cross-appealed on the children’s objections ground.
The parties
[5] The father, Mr McDonald, was born in New Zealand and holds dual New Zealand and British citizenship. The mother, Ms Sanchez, was born in Spain and holds dual Spanish and New Zealand citizenship.
[6] The parties met in France in 2007 at a time when they were both living in the United Kingdom (UK). They returned to the UK to live together before moving to Auckland, New Zealand in early 2009. They were married in Spain in April 2009 but continued living in Auckland from 2009 until August 2016, with the exception of a year spent living in Brisbane, Australia.
[7] The couple’s son, Andrew, was born in Auckland in November 2010 and their daughter, Sophia, was born there in December 2012.
[8] In September 2016 Ms Sanchez, Andrew and Sophia, moved to live in a large city in Spain. Mr McDonald followed shortly afterwards. Very soon after, the parties separated.
Chronology
[9] Counsel provided for the Family Court a joint chronology which identifies relevant events since the couple’s separation. As did the Judge, I now adopt matters set out in that chronology.
[10]On 15 December 2016, the parties signed an agreement recording:
(a)The relevant Spanish provincial law would govern their divorce in relation to parental responsibilities and child maintenance matters and they would submit to the jurisdiction of the Spanish Courts;
(b)The children’s care would be shared on a week-about basis for most of the year with longer periods in the summer and Christmas and Easter holidays; and
(c)From January 2020, the parties would move to New Zealand with the children for one year. In January 2021, the children would move to Spain to permanently establish their residence there.
[11] The parties’ agreement was approved by the Spanish Court and formalised as a court order on 22 February 2017.
[12] The children’s care was shared in Spain, in terms of their agreement and court order for the five years from November 2016 to November 2021. Extended holiday periods were spent in New Zealand in 2017 and 2018 (approximately a month each) and in 2020 (six weeks).
[13] In 2019, Ms Sanchez applied to the Spanish Court to remove the requirement that the parties live in New Zealand for the 2020/2021 year. Her application was initially granted on 16 December 2019 (2019 decision).
[14] In March 2020, Mr McDonald appealed that decision. The Provincial Court, on 8 February 2021, overturned the 2019 decision and reinstated a requirement that the children live in New Zealand for one year.
[15]By the appeal decision (Spanish order), it was ordered:
(a)the children were to travel to New Zealand with Mr McDonald for the period of one year, approximately, from 1 November 2021 to completion of the New Zealand 2022 school year;
(b)if Ms Sanchez travelled to New Zealand, Mr McDonald was to pay her financial support;
(c)if Ms Sanchez did not travel to New Zealand, a visiting regime was to be established for Ms Sanchez and the children and she was to pay Mr McDonald financial support;
(d)the children were to be returned to Spain in late 2022; and
(e)after the return of the children to Spain, the provisions of the 22 February 2017 order were to apply.
[16] I interpolate that the New Zealand Government had, in late February 2020, closed the country’s borders and imposed lockdown restrictions in response to the COVID-19 outbreak.
[17] On 11 November 2021, Mr McDonald and the children travelled to New Zealand to live in a small town in the South Island (“NZ residence”). The children were enrolled in the local school and have been actively engaged in school, family, community and sporting activities in the local district since then.
[18] In February 2022, Ms Sanchez moved to Sydney, Australia and obtained employment there. She visited the children in the NZ residence in June 2022 and September 2022.
[19]In November 2022 Ms Sanchez initiated family mediation in Australia.
[20] On 5 December 2022, Mr McDonald emailed Ms Sanchez and advised that he and the children would not be departing New Zealand on 18 December 2022, recording in unequivocal terms:
Neither parent has been living and working in Spain this year and I can advise that we will not be departing on the 18th to Spain.
[21]On 7 December 2022, Ms Sanchez cancelled the mediation process.
[22] From 19 December 2022, Ms Sanchez spent a week visiting the children at the NZ residence. On 20 December 2022, there was a chance meeting between Ms Sanchez and Mr McDonald. There were subsequent emails between the two,
including an email from Ms Sanchez on 24 January 2023. (These exchanges led to Mr McDonald’s unsuccessful assertion in the Family Court that Ms Sanchez had acquiesced in the children not returning to Spain, a ground no longer pursued by Mr McDonald).
[23] Ms Sanchez, on 17 March 2023, obtained an enforcement order from the Spanish Court enforcing the Spanish Order by requiring the children’s return to Spain.
[24] Mr McDonald unsuccessfully applied to the Spanish Court for an order that the children not be required to return to Spain on the basis that neither the parents nor the children had their residence in Spain. The application was dismissed on 10 July 2023.
[25] In the meantime, on 13 April 2023, Ms Sanchez had applied to the Spanish Central Authority for orders for the return of the children under the Convention. Ms Sanchez’s application was filed in the Family Court on 25 July 2023 and was heard, on an opposed basis, on 28 September 2023.
The legislation and the statutory provisions
Purpose of the Convention
[26] The purpose of the Convention was explained by Glazebrook J in delivering the judgment of a full Court of Appeal bench in Punter v Secretary for Justice (Punter 2):3
[13] The Hague Convention deals with the protection of rights of custody and rights of access in a cross-border situation. The preamble provides as follows:
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody.
Desiring 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, as well as to secure protection for rights of access.
[14]Article 1 of the Convention states that its objects are:
(a)to secure the prompt return of children, wrongfully removed to or retained in any Contracting State; and
3 Punter v Secretary for Justice [2007] 1 NZLR 40, (2006) 25 FRNZ 327 [Punter 2].
(b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
[15] One of the most influential early commentators on the Hague Convention was Professor Pérez-Vera, Professor of International Law at the University of Madrid and the Rapporteur to the Commission that drafted the Convention — see Pérez-Vera, Explanatory Report to the Convention on the Civil Aspects of International Child Abduction (Acts and Documents of the 14th Session, Vol III, 1982) (“the Pérez-Vera report”).
[16] In that report, Professor Pérez-Vera points out (at para 19) that the Convention makes no attempt to regulate the problem of the award of custody or access rights. Rather, it rests implicitly on the principle that any debate on the merits of the question should take place before the competent authorities in the State where the child had its habitual residence prior to its removal or retention. At para 11 she notes that both removal and retention result in a child being taken out of the family and social environment in which his or her life has developed. She also speaks in that paragraph and the following paragraphs of the aim of the Convention being to avoid forum shopping by the party abducting or retaining the child.
[17] Insofar as it relates to rights of custody, therefore, the primary emphasis of the Hague Convention is on the prompt return of children who have been wrongfully removed from or retained away from the State of their habitual residence. The rationale is to deter such removal or retention but also (and importantly) to ensure that it is the State where the child has the most personal ties that will decide custody and access disputes related to that child.
[27] New Zealand became a party to the Convention with effect from 1 August 1991, Spain with effect from 1 September 1987.
[28] As indicated in the discussion in Punter 2 (above at [26]) regarding the Convention’s aim, the Convention is fundamentally concerned with the issue of forum. The Court to which an application for return is made is concerned with the forum for disputes over care and control of the children, rather than with the making of substantive determinations regarding those issues.4 The judicial task is to decide the appropriate forum for determination of the child’s interests, rather than to undertake a
4 Andersen v Lewis [2023] NZHC 390 at [12].
thorough investigation of those interests.5 Professor Mark Henaghan and Christian Poland have observed:6
The primary purpose of the … Convention … is to stop parties from forum shopping, when decisions go against them in foreign jurisdictions. The flipside is that courts should respect the foreign courts to make decisions about children in their own jurisdictions, that are in the children’s best interests.
[29] The Convention’s relevant operative provisions are implemented in New Zealand by ss 105 and 106 of the Act as contained in subpt 4 of Part 2 (entitled “International Child Abduction”). The Convention itself is incorporated as Schedule 1 to the Act, and some Convention obligations are defined by reference to specific Convention provisions. In short, s 105 of the Act governs international child abduction. If the Court finds the factors in this section are satisfied, subject to the defences in s 106, it is mandatory that the child be returned to the contracting country.
[30] While the child’s welfare and best interests are generally paramount under the Act, s 4(4) provides that the paramountcy provisions in s 4 do not limit subpt 4 of pt
2. The Court of Appeal in LRR v COL has explained the operation of s 4(4) in these terms:7
Section 4(4) does not disapply s 4(1). Rather, s 4(4) makes it clear that the requirement to determine such proceedings speedily, and to return a child promptly if no exception is made out, is not limited by s 4(1). The inquiry into the best interests of the child must be approached in the manner contemplated by ss 105 to 107. But it remains the case that the welfare and best interests of the child are, as the United Kingdom Supreme Court put it in Re E, at the forefront of the whole exercise. The outcome does not turn on the interests of the parents or guardians of the child, or for that matter of the relevant Central Authorities or States.
5 Secretary for Justice v HJ (2006) 27 FRNZ 212 (SC) per McGrath J at [131]. See also Re E (Children) Abduction: Custody Appeal [2011] UKSC 27 [2012] IAC 144 [Re E] at [13]: “There is no provision expressly requiring the court hearing a Hague Convention case to make the best interests of the child its primary consideration … These are not proceedings in which the upbringing of the child is in issue. They are proceedings about where the child should be when that issue is decided, whether by agreement or in legal proceedings between the parents or in any other way”.
6 Mark Henaghan and Christian Poland “How New Zealand Courts Approach Difficult Hague Convention Cases” in Margaret Brinig (ed) International Survey of Family Law (Intersentia, 2021) 357 at 370.
7 LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610 at [83].
[31] In the context of this appeal, the key Convention provisions relating to habitual residence are Articles 3 and 4. They provide:8
Article 3
The removal or the retention of a child is to be considered wrongful where —
a)it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b)at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 4
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
Section 105 of the Act
[32]Section 105 of the Act relevantly provides:
105Application to court for return of child abducted to New Zealand
(1) An application for an order for the return of a child may be made to a court having jurisdiction under this subpart by, or on behalf of, a person who claims—
(a)that the child is present in New Zealand; and
(b)that the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child; and
(c)that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and
(d)that the child was habitually resident in that other Contracting State immediately before the removal.
8 P R Beaumont and P E McEleavy (ed) The Hague Convention on International Child Abduction
(Oxford University Press, 1999) at Appendix 1.
(2)Subject to section 106, a court must make an order that the child in respect of whom the application is made be returned promptly to the person or country specified in the order if—
(a)an application under subsection (1) is made to the court; and
(b)the court is satisfied that the grounds of the application are made out.
…
Section 4 of the Act
[33] Section 4 of the Act establishes the welfare and best interests of the child as the paramount consideration in proceedings under the Act. That said, s 4(4)(a) provides that s 4 “does not limit subpart 4 of Part 2” (being the subpart of the Act, as discussed above at [2], that implements the Convention). How s 4(4) works was, as identified above at [30], explained in LRR v COL.
Section 106 of the Act
[34]Section 106 of the Act relevantly provides:
106Grounds for refusal of order for return of child
(1)If an application under section 105(1) is made to a court in relation to the removal of a child from a Contracting State to New Zealand, the court may refuse to make an order under section 105(2) for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the court—
(a)that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or
(b)that the person by whom or on whose behalf the application is made—
(i)was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the court that those custody rights would have been exercised if the child had not been removed; or
consented to, or later acquiesced in, the removal; or
(c)that there is a grave risk that the child’s return—
(i)would expose the child to physical or psychological harm; or
(ii)would otherwise place the child in an intolerable situation; or
(d)that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition to taking them into account in accordance with section 6(2)(b), also to give weight to the child’s views; or
(e)that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.
Section 105(1)(a) — children present in New Zealand
[35] It was and remains common ground that this first of the four prerequisites to an order under s 105(1) is satisfied.
Section 105(1)(b) — breach of rights of custody
[36] It was and remains common ground between the parties that, if the children were found to have been habitually resident in Spain immediately before their retention in New Zealand, then Ms Sanchez’s rights of custody arising under the Spanish Court orders have been breached.
Section 105(1)(c) — exercise of custodial rights
[37] It was and remains common ground that Ms Sanchez would have been exercising her rights of custody but for the children’s retention in New Zealand.
Date of retention of the children
[38] As noted above (at [3](a)], the Judge found Mr McDonald had retained the children in New Zealand on 16 December 2022. This was the final day of the children’s 2022 school year upon which, in terms of the Spanish Court orders, Mr McDonald was required to return the children to Spain.
[39] The 16 December 2022 date was that advanced by Mr Guest and Mr van Bohemen — they had submitted, in reliance on Punter v Secretary for Justice
(Punter 1),9 that it was not possible for retention to occur until the lawful period for the children to be in New Zealand had expired.
[40] Ms Blackford submitted the retention of the children had occurred on 5 December when (above at [20]), Mr McDonald advised Ms Sanchez that he and the children would not be leaving New Zealand for Spain on 18 December 2022. Ms Blackford invoked the concept of anticipatory breach which has been recognised as applying in other Convention cases.10
[41] The Judge did not determine whether there had been an anticipatory breach. He instead noted that little turned on the difference between the two dates (11 days apart) and simply adopted 16 December 2022 as the date of retention. As that ruling is not the subject of this appeal, I determine the appeal by reference to 16 December 2022 as the date of retention. That said, the Judge on the evidence could reasonably have found that the children had been retained 11 days earlier on the basis of a clear anticipatory breach — Mr McDonald on 5 December unequivocally stated the children would not be returning to Spain.
Habitual residence
The law
[42] The drafters of the Convention adopted the concept of habitual residence as the sole connecting factor determining the applicability of the Convention and other issues. In neither the Convention nor (in the case of New Zealand) the Care of Children Act or its predecessor was the term “habitual residence” defined.11 As a consequence, there were in succeeding decades different interpretations in different jurisdictions and, within individual jurisdictions, developing approaches. The “different models” are helpfully discussed in Dr Rhona Schuz’s study The Hague
9 Punter v Secretary for Justice [2004] 2 NZLR 28 (CA) [Punter 1].
10 See Secretary for Justice v SB (Retention: Habitual Residence) [2006] NZFLR 1027 (HC) at 41; AHC v CAC FC Auckland FAM-2010-004-2326, 7 January 2011 at [36]; RCL v APBL [2012] NZHC 1292 at 25. See also Punter 1, above n 9, at per Blanchard P at [38]–[39].
11 Save that under the interpretation provision, s 95 of the Act, there is a definition dealing peculiarly with a Contracting State that has two or more systems of law applicable in different units (not relevant here).
Child Abduction Convention: A Critical Analysis.12 Dr Schuz identified two main models used by various courts, being the parental intention (parental rights model) and the independent (child-centred model). Dr Schuz identified that by 2014 there had been attempts by Judges in some jurisdictions, including New Zealand and Israel, to combine the two models in a way similar to that recommended by Dr Schuz in a 2001 article.13
[43] All counsel in this case recognise the Court of Appeal’s judgments in SK v KP (in 2005) and in Punter 2 (in 2006) as leading cases establishing the approach to “habitual residence” to be adopted in the New Zealand courts.14 The cases establish that whether a child is or is not habitually resident in a particular country is a question of fact determined by reference to all the circumstances of the individual case. Courts are not to resort to presumptions or presuppositions.15 The essentially factual and individual nature of the enquiry is not to be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.16 The nature of inquiry required, including by reference to an inclusive list of relevant factors, was identified by the Court of Appeal in Punter 2 in these terms:17
In SK v KP, the inquiry into habitual residence was held, at [80], to be a broad factual inquiry. Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a State, the purpose of the stay, the strength of ties to the State and to any other State (both in the past and currently), the degree of assimilation into the State, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at [22], the underlying reality of the connection between the child and the particular State:
[22] There is also support for the proposition that the Court should be slow to infer a change in habitual residence in the absence of shared parental attempt to bring it about, this reflecting the weight attached to parental intention under the Convention: Zenel v Haddow 1993 SLT
12 R Schuz (ed) The Hague Child Abduction Convention: A Critical Analysis (Hart Publishing, Oregon 2013) at Chapter 8.
13 At 186, citing R Schuz, Habitual Residence of Children under the Hague Child Abduction Convention — Theory and Practice (2001) 13 Child and Family Law Quarterly 1.
14 SK v KP [2005] 3 NZLR 590, (2005) 24 FRNZ 518 (CA).
15 SK v KP, above n 14, citing re M (Minors) (Residence Order: Jurisdiction) 1993 1 FLR 495 (CA) at 499.
16 A v A (Children: Habitual Residence) (Re A (Jurisdiction: Return of Child)) [2013] UKSC 60, [2014] AC 1, per Lady Hale at [54(vii)].
17 Punter 2, above n 3, at [88].
975 at p 979. The decision of the Court on habitual residence must, however, in the end always reflect the underlying reality of the connection between the child and the particular state. Obviously there will be circumstances in which having been considered the facts indicate to the Court that all the circumstances of the case rather indicate this underlying reality.
[44] The consideration of “settled purpose”, which will be reflected in the evidence of parental purpose, is relevant but is only one factor to be considered.18 Consideration on settled purpose should not obscure the broad factual nature of the inquiry.19
[45] The Court, in Punter 2, in commenting on Dr Schuz’s article, explained how different approaches to the assessment of habitual residence (or “models”) may be required depending on the period of residence:20
[95] Schuz acknowledges the possibility of combining the parental rights and independent or child-centred models in a hybrid model. Under this model, habitual residence may be acquired either by residence for an appreciable period (ie objective factors) or by residence for a shorter period of time accompanied by a settled purpose. The phrase “residence for an appreciable period” should, in her view, be interpreted in accordance with the objectives of the Convention. What is required is sufficient time for, in the light of the respective connections with the relevant countries, the new country to have become the forum conveniens and/or to have created a situation where removal from that country is likely to cause the child the sort of harm usually associated with intentional child abductions.
[46]The Court expressly adopted the SK v KP formulation:21
[106] In our view, the SK v KP formulation of the test accords appropriate significance to parental purpose in line with Lord Brandon's statement of principle. At the same time, by requiring all of the relevant factual circumstances to be weighed alongside the consideration of settled purpose, the test in SK v KP accords with the need to ensure that the concept of habitual residence remains a factual one not limited by presumptions or presuppositions – see Dicey and Morris (at 152). As pointed out by Schuz, the pure parental rights model (as postulated by Mr Pidgeon) does not meet this aim. We also endorse Schuz’s other comments on that model – see at [94] above. We also prefer the SK v KP formulation to that in Mozes, where, in our view, the Court put too much emphasis on parental purpose, thus obscuring the factual nature of the inquiry. The SK v KP formulation also accords with what is said in Dicey and Morris. The authors (at 150) say that the element of settled purpose is not necessarily determinative, and that the better view is that
18 SK v KP, above n 14, at [73]–[75].
19 At [75]; Punter 2, above n 4, at [88] and [188]; Basingstoke v Groot [2007] NZFLR 363 (CA) at [28].
20 Punter 2, above n 3, at [95].
21 At [106].
evidence of intention may be important in particular cases, for example in establishing habituation when the actual period or periods of residence have been short.
(citations omitted)
[47] The best interests of the child must also be considered in proceedings under the Convention — that inquiry is to be approached in the manner contemplated by ss 105–107 of the Act.22
[48] The Court of Appeal’s observation in LRR v COL (above at [30]) indicates the consideration of parental intentions and interests must not dictate the outcome. The welfare and best interests of the child remain a very important consideration, one that comes at the “forefront of the whole exercise”. That said, the context remains that the Court is making a decision as to forum, the place where the child will be for the time being and whose courts will finally determine matters of custody. There will be a heightened relevance of the child’s welfare and best interests of the child when the Court is exercising its discretion under s 106 of the Act. Consideration of the welfare and best interests of the child may assume critical significance in a case such as LRR v COL where the relevant exception invoked is, under s 106(1)(c)(ii) of the Act, that there will be a grave risk that the child’s return would place the child in an intolerable situation.
[49] I respectfully adopt as a succinct summary of the correct approach to be taken by a New Zealand court when assessing habitual residence that provided by Dobson J in Langdon v Wyler:23
In summary the assessment of whether a particular country is a child’s habitual residence is a factual inquiry, necessarily tailored to the particular circumstances of the individual case. Parental purpose may be a factor, but it is not determinative. The focus is on the actual situation of the child, and his or her connection with and integration in the relevant country.
[50] The Court, in Punter 2, specifically considered the significance of agreed periods of stay in a new state of “under a year” and of “2 years or over”. In Basingstoke v Groot, the Court of Appeal summarised its relevant Punter 2 discussion thus:24
22 LRR v COL, above n 8, at [88].
23 Langdon v Wyler [2017] NZHC 2535 at [14].
24 Basingstoke v Groot, above n 20.
[30] … this Court set out some themes that can be discerned from the cases on habitual residence. It said that, where the stay in a new state is intended to be for a period of under one year and the purpose of the stay is temporary such as for holidays or visiting relatives, the courts have generally found that habitual residence in the old state survives … There are exceptions, SK v KP being one, but that case had highly unusual facts. Where the intended stay is between a year and two years, decisions have gone either way – see the cases discussed in P v Secretary for Justice at [127] – [129].
[31] Where the intended stay is for two years or more and it is not so clear that the purpose of the stay is temporary, habitual residence in the old state has usually been held to have been lost immediately on leaving the old state, although residence for an appreciable period is needed before habitual residence is acquired in the new state - see SK v KP at [73] and [77] and P[unter] v Secretary for Justice at [126] and [201].
The judgment — habitual residence
[51] The Judge recited the history of events as agreed in the parties’ chronology. He noted the hearing was conducted on the basis the parties’ affidavit evidence and written and oral submissions, without cross-examination.
[52] The Judge identified the applicable provisions of ss 105–106 of the Act. He identified the only controversial requirement under s 105(1) was whether the children were “habitually resident” in Spain at the date immediately before their retention. It was for Ms Sanchez to establish that on the balance of probabilities. The Judge identified, if s 105 elements were proved, the Court must order the children’s return to Spain unless one of the positive exceptions in s 106 of the Act was established, a matter on which Mr McDonald bore the onus. The Judge identified the s 106 exceptions invoked by Mr McDonald.
[53] For the legal principles applying to the determination of habitual residence, the Judge referred to passages in SK v KP and in Punter 2 (as well as the discussion by Dobson J in Langdon v Wyler). He accepted the general proposition that a child- centred focus of the inquiry is important. He identified that he had previously — in Kerslake v Wilson25 — reviewed the developing jurisprudence by reference to the cases mentioned.
25 Kerslake v Wilson [2022] NZFC 8611 at [21]–[33].
[54] The Judge then summarised submissions made by counsel, before turning to determine on the facts the issue of habitual residence.
[55]The Judge found:
(a)the children had strong ties to Spain, having lived there for five years on a shared-care (week-about) basis from respectively, age 6–11 and 4– 9;
(b)only Andrew would have had any lingering memories of having previously lived in New Zealand;
(c)the children were clearly habitually resident in Spain when they left for New Zealand in November 2021;
(d)habitual residence in Spain was not immediately lost on departure to New Zealand as New Zealand was never intended to be a place of permanent residence;
(e)a number of factors could have led to Andrew and Sophia obtaining habitual residence in New Zealand without difficulty, including some conscious memory of New Zealand on the part of Andrew; the presence of paternal family members in New Zealand; previous lengthy holiday periods in New Zealand and a familiarity with the environment; the children’s New Zealand citizenship and their fluency in English; and the fact their father is a native New Zealander;
(f)there remain indications the children see themselves as closely connected to both Spain and New Zealand, including their reference to themselves as “Spiwis” (that is, Spanish Kiwis);
(g)their fluency in Spanish and some competency in Catalan;
(h)their support of sporting teams in both countries;
(i)the circumstances and terms on which the children came to New Zealand were relevant, namely that Spanish Court orders were very specific, over Ms Sanchez’s opposition, requiring the period of stay to be from November 2021 until the end of the 2022 New Zealand school year, following which the children were to be returned to Spain;
(j)the Spanish order is relevant not because it impacts on the New Zealand Court but as a part of the wider factual matrix and circumstances under which the children came to New Zealand, namely a “strictly temporary time-limited impermanent move”, authorised over their mother’s opposition and a concern that, if their father came to New Zealand, he would not return the children;
(k)taking Mr McDonald at his word (as given in the Spanish appeal hearing), Mr McDonald also viewed the arrangement as a temporary, time-limited move;
(l)the children must also have known the move was temporary, time- limited and they likely knew their parents were arguing in Court about whether they would be allowed to leave for New Zealand and that their departure to New Zealand was subsequently authorised on a finite basis;
(m)the children, at their ages, would have understood concepts of time and that their return to Spain was not at some undefined time;
(n)the stay in New Zealand was intended as something more than a “holiday” but was never intended to be permanent or even undefined;
(o)the fact that the children’s stay was temporary and would end on a clearly defined date, and this was known to the children, makes it harder to establish the children’s habitual residence had become New Zealand;
(p)the children are settled and enjoyed their New Zealand residence — but (to their knowledge) the stay was temporary and would end on a set date, as opposed to their having become established in this place and “putting down roots”;
(q)there is some similarity between the children’s situation with that of a child who spends a year overseas on an educational exchange programme, during which they experience a range of schooling, developing friendships, engagement with the cultural and sporting activities and developing personal relationships; and
(r)the children had in New Zealand involvement with their extended paternal family, but it was always on a temporary basis.
[56] The Judge noted Mr van Bohemen’s reference to the relevant factors identified by the Court of Appeal in SK v KP and reiterated in Punter 2. The Judge considered the submissions on behalf of Mr McDonald (supported by Mr van Bohemen) focused only on factors about the children’s degree of involvement and integration into New Zealand and ignored the basis upon which the children had come to New Zealand (covered in the SK v KP list (above at [43]) and under the factors “settled purpose”, the “actual and intended length of stay in a State”, and “the purpose of the stay”).
[57] The Judge noted Mr Guest’s submission that “the children had settled here more successfully than Mr [McDonald] had expected or hoped” but found difficulty with the submission. The Judge concluded the children had settled in New Zealand exactly how their father hoped they would. The Judge did not accept it was unexpected or unforeseen that, when the children came to New Zealand in November 2021, they would do well in New Zealand and would be reluctant to return to Spain when the time came.
[58] The Judge also rejected a submission that Ms Sanchez’s now living in Sydney lessened the children’s connection to Spain. The appeal decision specifically contemplated Ms Sanchez living in New Zealand while the children were here. Ms Sanchez has made it clear that her move to Sydney was temporary in order to be
closer to the children. The Judge did not view her temporary arrangements in Sydney as significantly altering the children’s connection with Spain.
[59] The Judge concluded the children were habitually resident in Spain when they travelled to New Zealand in November 2021 and remained habitually resident in Spain in December 2022.
Children’s objections to return
The law
[60] Where a party invokes the child objection exception to return under s 106(1)(d), the onus is on that party to prove the exception applies. On this appeal, the Judge’s finding the exception applied is not challenged.
[61] Once the exception ground is established, neither party has an onus of proof in relation to the exercise of the Court’s residual discretion.
[62] The Court of Appeal in Re J (Abduction: Child’s Objection to Return), has identified relevant (not exhaustive) matters to be considered in considering the weight to be given to a child’s objection, being:26
(a)the reasons for the objection;
(b)whether the reasons are valid and well-founded;
(c)the strength of the view;
(d)the age and maturity of the child;
(e)relevant surrounding circumstances; and
26 Re J (Abduction: Child’s Objection to Return) [2004] EWCA Civ 428, [2004] 2 FLR 64, CA at [61], quoting Re T (Abduction: Child’s Objection to Return) [2000] 2 FLR 204.
(f)to what extent the child’s views are shaped or coloured by undue influence or pressure, directly or indirectly exerted by the abducting parent.
The children’s views in this case
[63] As recorded by the Judge, Mr van Bohemen obtained the children’s views through two meetings, first for 45 minutes on 25 August 2023 and, second, for 10–15 minutes on 28 August 2023. Mr van Bohemen in his report recorded:
c)… school in Spain during and post-Covid required long periods of distance learning and then, when they returned to school, they had to have social distancing in the class room and wear masks and they had not liked that;
d)That school in New Zealand on arrival was very different (ie no social distancing, no masks) and that they liked that …
[64]Specifically in relation to Sophia, Mr van Bohemen recorded:
14.It appeared to me from my 1:1 meeting with her that Sophia was very keen not to be disloyal to either of her parents. When I asked her what she would do if she was the boss, she said that she did not want to “be the boss” or to decide where she and [Andrew] should live.
15.My notes of her views were:
a)She “loves” living where she is. Her reasons included:
i.She, [Andrew] and Mr [McDonald] live in a neighbourhood where there are lots of neighbours, dogs, horses and animals.
ii.She knows all the people in the neighbourhood;
iii.She can bike to visit the neighbours and also into their [NZ residence];
iv.their [NZ residence] school is big, friendly, there is lots of grass and it is not “locked up” (in contrast to her school in [a large city in Spain]);
v.She has lots of activities (she told me about soccer and cross country in particular);
b)For the most part she has enjoyed her mother’s 3 visits to see them in [town] but they can be “stressful” because she (Ms [Sanchez]) talks to her about going to live with her in Spain;
c)Sometimes [Sophia] does not like her calls with her mother. Her reasons were that sometimes Ms [Sanchez] cries and gets “hyped-up” and that makes [Sophia] feel unhappy.
d)Her views about her family/friends/neighbourhood /school in Spain included:
i.That she occasionally messages and talks to her aunt and grandmother in Spain;
ii.That she hadn’t talked to her friends in Spain for “months”
iii.That there were “high gates” around the school;
iv.The neighbourhood did not feel safe (in contrast to how she felt about the neighbourhood in [their NZ residence]);
e)That she could not understand why Mum does not want to come to New Zealand (to live)
f)That if the Court decided she and [Andrew] were to stay in New Zealand she would be happy because she likes it here; there is “more nature”; she has friends; she lives with grandma and there are animals. But she said she would also be sad if that meant that her mother went back to Spain. [Sophia] said she would “feel both emotions”.
g)That if the Court decided she and [Andrew] were to return to Spain she would feel happy to be with her Mum, but sad if Dad didn’t come back and upset if she had to live in apartment, without animals.
16.Before I conducted my meeting with [Sophia] we reviewed my notes and she agreed to me passing her views to the parties/the Court.
[65]Specifically in relation to Andrew, Mr van Bohemen recorded:
17.[Andrew] was more forthcoming with his preference to live in [their NZ residence], not [a large city in Spain]. My notes of his reasons for that are:
a)It is “freer” here. If he wants to visit friends he can go and do that on his bike – something he said he could not do in the middle of [a large city in Spain]
b)He has friends here: he talked about Jack, Flynn and Josh;
c)School in New Zealand is more relaxed than in Spain;
d)He is excited about the prospect of attending … High School next year. He has visited the school and likes it, he is interested in learning Tech, drawing and Japanese there;
18.I asked [Andrew] if felt like the “new kid” or if he had “fitted in” to life in New Zealand. He assured me he did not feel like the new kid and that he fitted in.
My notes of when [Andrew] talked about his parents included:
a)That Mum’s visits to New Zealand had been too short;
b)He did not know what his mother would do if he and [Sophia] lived in New Zealand;
c)He knows that his father does not want to go back to Spain where he does not have a house or family.
20.My notes of when I asked [Andrew] what he would do if he were “the boss” were
a)He would decide that he and [Sophia] would live in New Zealand;
b)It would be “perfect” if Mum came to live in New Zealand;
c)It would be “nice” if Mum stayed in Australia and continued to visit and he and [Sophia] were able to visit her there.
21.At the end of the meeting I reviewed my notes with [Andrew] and he agreed to me reporting his views to his parents and the Court.
The judgment — the children’s objections
[66] As noted, the Judge found the children’s objections to return to Spain, although not stated as strongly as seen in some cases, qualified as objections to being returned to live in Spain because the children are happy and settled in New Zealand and wish to remain living here. The Judge found that both children had obtained an age and degree of maturity at which it was appropriate to give weight to their views — their objection to return to Spain and their corresponding desire to remain in New Zealand was entirely understandable and rational. The Judge observed:
[122] They are able to clearly articulate what they like better about New Zealand than Spain. The children are happy and settled in New Zealand. They are in the care of their father. They are supported by paternal family, particularly their grandmother. They are doing well at school. They report having positive peer relationships. They live in what many would consider an idyllic rural/urban lifestyle in a genuinely beautiful place.
[67] The Judge briefly summarised his reasons for concluding that Mr McDonald had established the children’s objections:
[208] I am satisfied their objections are rational and reasonable and readily understandable. The children’s views are the result of their positive experiences in New Zealand probably combined with the unusual COVID- affected environment in Spain immediately prior to their departure.
[68] The Judge found it was inevitable the children’s views were coloured by their most recent experience of living in Spain, during the period of COVID-19 lockdowns and restrictions which they did not experience to the same extent in New Zealand.
[69] The Judge concluded the children’s views were the result of their positive experiences in New Zealand probably combined with the unusual COVID-19-affected environment in Spain immediately prior to their departure.
[70] The Judge also found there was no evidence the children were very unhappy and would not do well in Spain when they lived there and that, even now, they do not see the return to Spain as a dire or disastrous proposition.
[71] The Judge then considered Mr McDonald’s assertions in relation to other exceptions under s 106(1) (acquiescence and grave risk) before finding those exceptions not established.
[72] The Judge then turned to weigh the discretion in relation to the established exception, being the children’s objections.
The discretion under s 106 of the Act
The law
[73] Section 106(1) of the Act (set out above at [34]) provides that, on a s 105(1) application, the court may refuse to make an order for return in identified circumstances.
[74] The Supreme Court considered the exercise of the discretion under s 106 in Secretary for Justice v HJ (HJ).27 HJ was a case in which the application under s 106 (1)(a) was made more than one year after removal of the child and the child was now settled — in fact, nearly two years after removal. The judgment is to be read in that light because, as observed by the plurality, it is in the very nature of the s 106(1)(a) exception, quite apart from s 4(1) of the Act, that the best interests of the particular children at that point play an essential part in the exercise of the discretion.28
[75] In HJ, the plurality held striking the right balance between the best interests of the child or children on the one hand, and the deterrent policy of the Convention on the other, lies at the heart of the exercise of the s 106(1)(a) discretion.29 That said, it was observed “the best interests of the particular child in terms of s 4(1) cannot be the only or indeed the dominant factor in the exercise of the s 106 discretion”.30
[76] The weight to be given to competing considerations under s 106(1) will naturally vary according to which exception has been established, as is evident from the discussions in HJ itself (in relation to the “one year settled” exception). Similarly, in the more extreme situation of the grave risk exception, the Court of Appeal held in LRR v COL it is almost impossible to conceive circumstances where return would not be ordered — this is because the discouragement of potential abductors has much less significance as a factor when grave risk to the child or children is already made out.31
[77] The Court of Appeal identified in LRR v COL, notwithstanding the heightened relevance of the child’s welfare and best interests when the Court comes to the exercise of discretion, there is still to be a prompt and focused enquiry. The Court explained:32
It is not the function of the requested State to conduct a wide-ranging inquiry into the best interests of the child. But the prompt and focused inquiry required by the provisions of the Convention is designed to ensure that the outcome does serve the interests of the particular child. As Baroness Hale said in Re D:33
27 Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 [HJ].
28 At [53].
29 At [50].
30 At [50].
31 LRR v COL, above n 7, at [99], [148].
32 At [79].
33 Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 at [52]. See also the discussion of the relevance of the interests of the child in the Explanatory Report that accompanies
… No one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm.
[78] These considerations have more recently been applied by this Court by Mander J in Andersen v Lewis when considering the exercise of the discretion:34
[144] While the provisions of the Act which give effect to the obligations of the Hague Convention are expressly not limited by the fundamental statutory principle set out in s 4(1) — that the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration in proceedings under the Act — and the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings, that does not mean they are not “at the forefront of the whole exercise”.35 If the assumption that the best interests of the child will ordinarily be served by returning a child to the country where they are habitually resident can be displaced by one of the statutory exceptions, that must only be because the particular circumstances of that child are such, that considerations relating to their welfare and best interests will best be served by them remaining where they are until the dispute between their parents is resolved.
The judgment — exercise of the discretion
[79] The Judge, having concluded the children’s objection exception was established, turned to the discretion to refuse to make an order for return under s 106(1) of the Act.
[80] The Judge identified the plurality decision in HJ as the leading authority on the exercise of the discretion. He referred to the requirement to weigh potentially but not necessarily competing considerations — the welfare and best interests of the children on the one hand and the deterrence purpose of the Convention on the other.
[81] The Judge recognised the competing considerations will vary according to which exception is established. He noted, with reference to the establishment of the grave risk exception in LRR v COL, that it is almost impossible to conceive of circumstances where, in that situation, return would be ordered. On the other hand,
the Convention: Elisa Pérez-Vera Explanatory Report on the 1980 Hague Child Abduction Convention (Hague Conference Permanent Bureau, Madrid, April 1981) at [23]–[25], [29], and [116].
34 Andersen v Lewis, above n 4.
35 Care of Children Act 2004, [COCA] s 4(4); Re E, above n 5, at [14]. (The “forefront of the whole exercise” reference in Re E was adopted by the Court of Appeal in LRR v COL, above n 7, at [83].)
he noted, if other exceptions are established, the discretion may require careful consideration.
[82]The Judge referred to the provisions of s 4 of the Act, observing:
[212] Section 4 of the Act makes the welfare and best interests of children in their particular circumstances the first and paramount consideration in proceedings under the Act. Section 4(4)(a) also says the section “does not limit” that part of the Act which deals with Hague Convention applications. However, that does not mean that welfare and best interest considerations are irrelevant to Hague Convention proceedings. LRR v COL said they should be at the “forefront” of the Court’s considerations.36
[83]The Judge then made two observations as to the exercise of the discretion:
[213] Firstly, Hague Convention provisions are welfare and best interest based. Generally, the welfare and best interests of a child will be promoted by returning children to their country of habitual residence and for the Court in that jurisdiction to determine their longer-term care arrangements.
[214] Secondly, the Care of Children Act allows a court not to make an order for return even though the necessary requirements of s 105 are satisfied if one of the s 106 exceptions is established. That must be on the basis that, in certain circumstances, return is not in the welfare and best interests of that particular child.
[84] At the conclusion of that discussion, the Judge in relation to s 4 of the Act quoted in its entirety that part of Mander J’s judgment in Andersen v Lewis that is set out above at [78].
[85] The Judge recorded Mr Guest had submitted the welfare and best interests of the children strongly favour their remaining in New Zealand while issues in relation to their long-term care are resolved, having regard to the fact the children are settled and happy in New Zealand.
[86] The Judge then set out the factual matters he considered in the exercise of the discretion:
36 LRR v COL, above n 7, at [83]. This is a reference to the passage in the judgment in LRR v COL
which is set out above at [30].
(a)he accepted the children’s return to Spain would be a major change and challenging for them whereas remaining in New Zealand would be less disruptive to their current lives;
(b)he found no evidence that return would be deeply traumatising for them or give rise to a grave risk of psychological harm;
(c)it is a matter of concern that Ms Sanchez, during the period the children have been in New Zealand, has had no meaningful role in their day-to- day care and only limited physical contact (on four occasions with them);
(d)Mr McDonald, for unclear reasons, has refused to let the children leave New Zealand to visit Ms Sanchez in Australia;
(e)even the limited contact Ms Sanchez has had with the children in New Zealand has at times been unsatisfactory;
(f)there has been frequent remote contact by AVL but, even then, Ms Sanchez has had difficulties in speaking to the children when she expected to;
(g)the children have had a glaring absence of their mother in their lives, at least physically, while living in New Zealand, at a time when Mr McDonald has had primary care and control over the children’s movements and contact;
(h)the negotiations for both physical and remote contact have been characterised by high conflict between the adults, making satisfactory arrangements difficult;
(i)the situation that has existed in New Zealand can be contrasted with the children’s lives in Spain, where their care was shared, with both parents having significant and substantial care and contact through a five-year period, with no evidence of major difficulties over shared care;
(j)the Judge was not in a position to know whether, if the children were primarily in Ms Sanchez’s care in Spain and Mr McDonald at a distance, the same difficulties over contact would occur.
[87] The Judge then returned to the consideration of the welfare and best interests considerations. He observed that the promotion of a relationship between the children with both parents in a substantial and meaningful way had occurred far more in Spain than since the children had been in New Zealand. The Judge recognised, if the children return to Spain, there will not be shared care if Mr McDonald did not return to Spain. But the Judge noted his understanding the shared care order remains in force in Spain and that Ms Sanchez is willing to give effect to it.
[88] The Judge recorded he had concerns about the welfare and best interests of the children should they remain in New Zealand, even if only while final decisions are made about their care, as the consequence would be their mother being largely physically absent from their lives, with even remote contact at times problematic.
[89] The Judge recognised it was not possible to say whether the same difficulties would be experienced if the children were living with their mother in Spain and their father was in New Zealand.
[90] The Judge then turned to the principles of the Convention, as being important in weighing the discretion in the present case. He identified as a core aspect of the Convention that it is not generally in the children’s interests to be removed from their usual home (or be prevented from returning to it) by one parent seeking to unilaterally relocate them — it is in their usual home country that issues about substantive care and contact are to be resolved.
[91] The Judge then referred to the parents’ arrangements in Spain over the five- year period to November 2021, following which their visit to New Zealand was on a time-limited, specific basis. The Judge noted “[t]he Spanish court was presumably reassured by the existence of the Convention and the knowledge that if Mr [McDonald] refused to return the children, the authorities here could order it”. There was an underlying international convention to ensure return, one of its most
fundamental objectives being to establish an international order under which there would be certainty about return.
[92] The Judge considered it difficult to identify a clearer case than the present where a foreign court makes an order for children to travel to another country with a clear expectation they will be returned to their usual home at a specific given time.
[93] The Judge therefore distinguished other cases where parties had informal agreements or understandings about living in another country for a period, often not clearly defined and with the parties’ agreed purposes less certain and not formalised through Court orders.
[94] The Judge also distinguished other cases, including Andersen v Lewis, in which the parties had chosen not to closely follow existing court orders in a foreign jurisdiction. By contrast, the ultimate Spanish order was very specific and time- limited, and granted over opposition and after argument, without Ms Sanchez thereafter agreeing to any extension of the ordered time limit.
[95]The Judge observed:
(a)if he did not make an order for return in the present case, it was difficult to see how any court in any jurisdiction could have confidence that children would be returned at the end of a permitted period overseas (particularly a longer period) if the travelling parent were to change their mind and refuse to return the children;
(b)Mr McDonald’s argument boiled down to the proposition that the Court should exercise its discretion to refuse return because the children have enjoyed their time in New Zealand, are settled in New Zealand, and do not wish to return to Spain;
(c)that proposition could not be correct because, otherwise, courts (including the New Zealand courts), when making decisions to approve travel, could not have confidence the children would be returned. It
could be predicted courts would become reluctant to agree to children spending extended periods abroad; and
(d)the likely destination to which the children would travel overseas with one parent is the country of that parent’s origin where his or her extended family will be, as in this case. If courts become reluctant to sanction longer periods overseas, children could be denied opportunities in relation to that parent’s culture and background and the forging of deeper relationships that are involved in such travel. The Judge considered that not a desirable outcome.
[96] The Judge concluded, on the specific facts of the present case, the Convention principles favouring return have significant importance. He also identified a need for respect of the decisions of a foreign country (comity).
[97] The Judge recorded, weighing and considering all those matters, he was satisfied it was appropriate and correct to make an order for the children’s return to Spain despite their objections.
[98] In introducing his submissions on the appeal, Mr Guest highlighted six passages in the Judge’s findings that, in Mr Guest’s submission, made it surprising the Judge ordered the return of the children. By their nature, these passages’ relevance is primarily in relation to the exercise of the Judge’s discretion under s 106 of the Act. Given the importance placed on these passages, I reproduce them here verbatim:
[122] …Frankly, their objection to return to Spain and their corresponding desire to remain in New Zealand is entirely understandable and rational. They are able to clearly articulate what they like better about New Zealand than Spain. The children are happy and settled in New Zealand. They are in the care of their father. They are supported by paternal family, particularly their grandmother. They are doing well at school. They report having positive peer relationships. They live in what many would consider an idyllic rural/urban lifestyle in a genuinely beautiful place.
…
[187] However, I accept, for the purposes of considering the exception, Mr McDonald’s evidence that he cannot return to Spain with the children if they were ordered back. In that case, that would be a significant change in the children’s care arrangements. Mr McDonald has been the children’s primary
caregiver since November 2021. Ms Sanchez has had very limited face-to- face contact with the children since then. Just after this hearing, she was to undertake her fourth visit to New Zealand to spend time with the children during the school holidays. Her face-to-face contact has been limited to four such holiday periods over a timespan now of almost two years. The most frequent contact she has with the children is remote contact by AVL and social media (although she alleges difficulties with that also).
[188] … I readily accept that would be a significant change for the children.37
[189] … They are at an age and stage where going against their views could cause real conflict and potential resistance, particularly from Andrew.
…
[193] Given the above catalogue of very significant changes for the children, I am readily prepared to accept there may be some risk to their “happiness”, level of settlement and their general wellbeing on their return to Spain, especially initially. They will be without their father who has been their primary caregiver. They will move into the care of their mother. They do not wish to return and their opposition might be stronger than it appears on its face. They are settled and happy in New Zealand and have some memories of life in Spain they are not enthusiastic about.
[195] Mr Guest invites me to accept, as a matter of common sense, there are potential psychological implications for the children if ordered to return. I do accept that. I agree it is a matter of common sense that with such major changes in the children’s lives, return will be a challenging and unsettling time for them.
Approach on appeal
[99] As the Judge made a final order, s 143 of the Act provided the parties with the right to appeal the decision to this Court.
[100] In their submissions, Mr Guest and Ms Blackford recorded they agreed this appeal proceeds by way of rehearing, in accordance with the principles established in Austin, Nichols & Co Inc v Stichting Lodestar [Austin, Nichols].38 Mr Guest (without reference to authority) suggested that, although the choice in the words “may refuse” in s 106 of the Act often referred to as the Court’s “discretion”, appeals which engage s 106 are inevitably still treated as general appeals. For his part, Mr van Bohemen
37 This discussion in the context of the impact, should the children return to Spain, on contact with their father.
38 Austin, Nichols & Co Inc v Stichting Lodestar [Austin, Nichols] [2007] NZSC 103, [2008] 2 NZLR
141. See also Coates v Bowden (2007) 26 FRNZ 200 (HC) at [36]; Huntly v Hamilton [2014] NZHC (686 at [27]–[31]; BK v CJ & KJ [2015] NZHC 2169 at [56]–[58].
submitted it was arguable the appeal against the s 106 decision was against the exercise of a discretion, and that the principles in May v May would therefore apply to that aspect.39
[101] The authorities indicate that the principles applying to appeals in relation to decisions under ss 105 and 106 of the Act are somewhat more nuanced than Mr Guest and Ms Blackford suggested.
[102] Insofar as the appeal relates to a decision under s 105 of the Act, it is to be decided on the general appeal principles in Austin, Nichols.
[103] The position differs in relation to decisions on applications under ss 105–106 for the return of a child abducted to New Zealand. In making such decisions the Court first has to make factual determinations under s 105(1). If relief under s 106 of the Act is invoked, the Court must also make findings of fact as to whether any of the five situations identified in s 106(1) of the Act exists and then, if such a situation is found to exist, the Court has a discretion to exercise under the same subsection. The principles in May v May, as Mr van Bohemen suggested, apply to the appeal against the exercise of the s 106(1) discretion.
[104]In this regard, I adopt the explanation of Andrews J in AHC v CAC:40
[20] A judgment on an application for an order for the return of a child involves findings of fact and the evaluation of factual matters, as well as the exercise of a discretion under s 106(1) of the Act as to whether to refuse to make an order for the return of the children.
[21] As noted by Heath J in B v F, to the extent that the judgment appealed from involved findings of fact, and the evaluation of factual matters, the principles expressed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar apply, and this court is free to reconsider the judgment of the Family Court and to substitute its own views on questions of fact and evaluation, if satisfied that the Family Court decision was wrong. To the extent that the Family Court Judge exercised a discretion, then this court should only interfere if satisfied that the Judge acted on a wrong principle, took into account irrelevant matters, failed to take relevant matters into account, or was plainly wrong.
(footnotes omitted)
39 May v May (1982) 1 NZFLR 165 (CA).
40 AHC v CAC [2011] 2 NZLR 694 (HC).
Issue 1 — habitual residence
Grounds of appeal
[105] Mr McDonald, by his notice of appeal, asserted the Judge incorrectly determined that at 16 December 2022 the children’s habitual residence was in Spain, and in particular:
(a)Misdirected himself by addressing the children’s understanding at the time of their arrival in New Zealand in November 2021 rather than the assessment of habitual residence in December 2022;
(b)Misdirected himself by placing too much weight on whether the children had acquired habitual residence in New Zealand by such date rather than whether they retained habitual residence in Spain at that date;
(c)Misdirected himself on the issue of parental understanding about the return of the children to Spain, and the related “settled purpose” approach to habitual residence;
(d)Failed to place weight on the Respondent’s residence in Australia, her suggestion that the family move to Australia, and her initiation of mediation in Australia, in determining whether the children’s habitual residence remained in Spain;
(e)The Judge’s determination at paragraph [98] that “the children retained substantive links to Spain and continued to see Spain as at least an equal “home” to New Zealand” was unsustainable on the evidence, particularly:
(i)There was accepted evidence that neither parent had lived in Spain for approximately a year at the date of the Hague Convention retention (and 22 months by the time of the hearing);
(ii)There was accepted evidence that contact between the children and the Respondent took place electronically from Australia and physically in New Zealand;
(iii)There was scant evidence of the children maintaining contact or relationships with anyone in Spain.
Submissions: appellant
[106] Mr Guest first addressed the legal approach to determining “habitual residence”. He submitted the Judge did not apply current jurisprudence which has involved a change over time to a liberal child-centred approach. He submitted the “older leading cases” such as Punter remain very important on “habitual residence”,
although coloured by the decision in LRR v COL in relation to the children’s best interests. Mr Guest referred to a number of cases of either “time-limited visits” or “shuttle arrangements”. He cited examples of habitual residence being established in relatively short periods.41 Mr Guest identified decisions in which parental purpose relating to time-limited visits was recognised as a factor but not determinative.42
[107]Mr Guest summarised the current jurisprudence as establishing:
(a)parental intention is only a factor, far from determinative, and less important with older children;
(b)habitual residence is an assessment to be made at the relevant time of determination and not decided by earlier agreement of the parties or even a court order; and
(c)a practical and sensible assessment must be made for the children, centred on their view of their lives at the relevant time.
[108] Mr Guest submitted, having regard to the ages of the children, the child-centred approach ought to have been “robustly” applied in this case, by asking the question “what is the reality for these children — do they see the NZ residence or the Spanish residence as their home?”. In Mr Guest’s submission, the compelling conclusion is that the children have settled into their NZ residence, are happy, are doing well, and therefore the NZ residence stands out as their home, making New Zealand their habitual residence acquired at the latest of 16 December in 2022.
[109] Mr Guest identified what he submitted are the facts which should have been treated as crucial in determining the children’s habitual residence:
(a)neither parent had lived in Spain for over a year at the date of retention (and nearly two years at the date of the Family Court hearing);
41 Olliver v Richardson [2018] NZHC 2696 (12) months; Gibbs v Gibbs [2021] NZFC 8790 (less than two years), [2021] NZFC 3318; (appeal dismissed), [2022] NZCA 67.
42 Referring to Punter 2, above n 3; Langdon v Wyler, above n 23.
(b)both parents and both children are New Zealand citizens. The children were born in New Zealand;
(c)the children had previously experienced living in New Zealand as their home and holidaying here;
(d)the former residence in Spain cannot be assessed as “strong”, Andrew having spent only five of his 12 years and Sophia having spent five of her 10 years, at no time with both parents together;
(e)there has been a full integration of the children into New Zealand schooling and New Zealand activities focused on a single area with extended family;
(f)the children’s contact with their mother has been with her living in Australia, not in Spain — Ms Sanchez has “not kept the home fires burning”;
(g)there has been some physical contact through Ms Sanchez’s visit, but with upset to the children;
(h)there has been extensive electronic contact;
(i)there was evidence (contentious) that Ms Sanchez had suggested in the presence of the children that the family should live in Australia;
(j)from the children’s viewpoint, shared care arrangements in Spain must seem a distant and quite different prospect from the arrangements they had in their NZ residence.
[110] Mr Guest in five summarised headings submitted the Judge had misdirected himself or erred in five particular ways:
(a)the Judge had misdirected himself by addressing the children’s understanding at the time they arrived in New Zealand (November
2021) rather than at their date of retention (December 2022) — the Judge thereby became overly concerned as to the understanding the children would have had as to the time-limited nature of their stay in New Zealand, failing to focus on what had evolved in their lives subsequently;
(b)the Judge misdirected himself by placing too much weight on whether the children had acquired habitual residence in New Zealand rather than whether they had retained habitual residence in Spain. In Mr Guest’s submission, the former would almost certainly grow out of the latter, but the focus had to be on an assessment of the former, namely what continuing links the children retained with Spain. The Judge’s emphasis on the children’s knowledge that they had to return to Spain is an untenable basis for determining habitual residence;
(c)the Judge misdirected himself on the issue of parental understanding about the return of the children to Spain and any “settled purpose”. Mr Guest accepted there was “for a time” a settled purpose about Spain being the habitual residence but “towards the end of the 12-month period” Mr McDonald did not accept such a “settled purpose”. Even Ms Sanchez by suggesting the family might settle in Australia, exhibited some “equivocality” on the issue. The Judge also erred in appearing to treat the Spanish order as the continuing joint settled purpose;
(d)the Judge failed to place weight on Ms Sanchez’s residence in Australia, her suggestion the family move to Australia, and her initiation of mediation in Australia, when determining the place of the children’s habitual residence. In Mr Guest’s submission, the Judge had to place greater weight on Ms Sanchez’s move to Australia, given Mr McDonald’s evidence that Ms Sanchez had for a long time wanted to make such a move and the identification of Australia in her later discussions; and
(e)there was no evidence to support the Judge’s conclusion that “the children retained substantive links to Spain and continued to see Spain as at least an ‘equal home’ to New Zealand” because:
(i)neither parent had lived in Spain for approximately a year at the date of retention;
(ii)contact between the children and Ms Sanchez had been taking place electronically from Australia and physically in New Zealand; and
(iii)the children had maintained little contact or relationships with anyone in Spain.
[111] Mr Guest submitted the evidence identified no continuing ties with Spain, there simply being “historic ties of having lived there in the past”. He suggested Ms Sanchez’s remaining family connections in Spain are weak and do not make Spain “home” for the children, Andrew having indicated his second choice (that is second to remaining in New Zealand) would to be live with Ms Sanchez in Sydney and Sophia having indicated she found her hometown in Spain frightening.
Submissions: lawyer for the children
[112] As lawyer for the children, Mr van Bohemen also submitted the children were at the date of retention habitually resident in New Zealand because they:
(a)had the necessary degree of integration in a social and family environment, and stability;
(b)had such a degree of integration into their social and family environment that their residence here was “habitual”; and
(c)were settled.
[113] Mr van Bohemen submitted, despite the Judge’s findings of facts identifying those conclusions, the Judge concluded this was not a case of habitual residence in New Zealand because, when the children came to New Zealand, they did so on the basis their stay would be “time-limited” and “impermanent”.
[114] Mr van Bohemen noted Punter appeared to be the only New Zealand case in which the issue of changes to habitual residence arose in the context of children coming to New Zealand by agreement for a “time-limited period”. On the other hand, there are unsurprisingly overseas examples and Mr van Bohemen referred to two United Kingdom cases, Re R (Children) (Reunite International Child Abduction Centre and others intervening) (Re R),43 Re M (Children) (Habitual Residence: 1980 Hague Convention Abduction Convention) (Re M),44 and F v M.45
[115] In Re R, two young children (one an infant) who had previously lived in France were found at first instance to have not lost their habitual residence in France after their mother had left by agreement to live in Scotland for the duration of her maternity leave and they had spent some four months in Scotland. On appeal, the children were found to have in fact been habitually resident in Scotland at the date of retention, a decision which was upheld by the United Kingdom Supreme Court on further appeal. The Supreme Court referred to its previously-settled approach to the concept of habitual residence, observing that it:46
[154] Notwithstanding the submissions made by Mr Guest and Mr van Bohemen suggesting “advances” in the law as it relates to habitual residence, the application of the authorities which bound the Family Court and bind this Court leads clearly to the conclusion that the Judge reached, namely that Ms Sanchez had established that all requirements of s 105 of the Act (including that the children were habitually resident in Spain immediately before their retention), were satisfied. In short, I am not satisfied the Judge was wrong to conclude the children were at 16 December 2022 habitually resident in Spain.
Issue 2 — the discretion to refuse return
Introduction
[155] As the full criteria under s 105(1) of the Act (including as to habitual residence) were established, the Family Court was required to make an order that the children be
returned promptly to Spain unless a ground for refusal of return was established and the Court determined in its discretion to refuse to make an order under s 105(2) of the Act. It has been established (and is not challenged) that one ground for refusal of return exists, namely (under s 106(1)(d)) the children object to their return and have attained an age and a degree of maturity at which it is appropriate to give weight to their views.
[156] Mr McDonald failed to establish two other asserted grounds for refusal, including that there was a grave risk to the children’s wellbeing in the event they were returned to Spain.
[157] The Judge, as summarised above at [79]–[98] exercised his discretion against refusing to order the return of the children and therefore ordered their return.
Grounds of appeal
[158] Mr McDonald, by his notice of appeal, asserted the Judge incorrectly exercised his discretion to return the children, particularly by:
(a)Failing in respect of such discretion to exercise it in the best interests of the children, or even adequately assessing the best interests of the children;
(b)Elevating the importance of the Spanish Court order and the goals of the Hague Convention beyond the best interests of the children;
(c)Failing to give adequate weight to the views of the children as expressed through their lawyer, as required under the Care of Children Act 2023 and the United Nations Convention on the Rights of the Child;
(d)Disregarding the evidence that the Appellant would be unable to return to live in Spain;
(e)Failing to give proper weight to the potential psychological implications for the children if ordered to return;
(f)Failing to take into account whether any assessment of the best interests of the children would be better carried out in New Zealand or in Spain.
(g)Taking into account recent physical contact between the children and the Respondent (paragraphs [217] to [219]) when:
(i)Such contact was irrelevant, even on the exercise of a discretion, to the return of the children to Spain;
(ii)The parties had contemplated the Respondent living in New Zealand, and it was the Respondent’s choice to live in Australia;
(iii)A return of the children to Spain would bring about an even more pronounced dislocation between the Appellant and the children than any dislocation between the Respondent and the children.
(h)Placing weight on the shared care arrangement in Spain up until the last travel to New Zealand in November 2021 in the actual circumstances in which there was no possible return to such arrangement.
Submissions: appellant
[159] Mr Guest began his submissions in relation to the exercise of the discretion by observing the children had been firm in their views that they did not wish to return to Spain. Mr Guest then observed the Judge “held that this defence had been made out, but then undermined it by requiring them to be returned anyway”.
[160] I will very briefly deal with this submission here so that I do not need to return to it in my analysis. As Ms Blackford submitted in response, Mr Guest’s submission comes very close to a proposition that whenever children’s objections are firmly held the Court should not exercise the discretion it is given under s 106(1) of the Act. That is clearly incorrect. The five grounds for refusal identified in s 106(1) of the Act are grounds on which the Court, in its discretion, may refuse to make an order for return.
[161] Mr Guest particularly attacked the “great weight” the Judge placed on the circumstances and basis on which the children came to New Zealand. Mr Guest noted his submissions to the Judge had invited the Court to focus on the date of “wrongful retention” as the date for assessment.
[162] Mr Guest submitted the Judge appeared to have been very heavily influenced by “background circumstances” and in particular the orders made by the Spanish Court. Mr Guest identified four particular passages in the judgment in which the Judge discussed the basis upon which the Spanish Court must have made the Spanish Order:
(a)it is difficult to imagine the Spanish court allowing the children to come to New Zealand over Ms [Sanchez’s] opposition unless it was confident the children would be returned at the end of the time-limited period;
(b)it is difficult to identify a clearer case than this one where a foreign court makes an order for the children to travel to another country (New Zealand) with a clear expectation they will be returned to their usual home (Spain) at a specific time;
(c)the order must have been made, at least partly, because the Spanish court was confident legal structures were in place to ensure the children’s return;
(d)put another way, if an order for return is not made in these circumstances, it is difficult to see how a court in any jurisdiction (including a New Zealand court) can have confidence that children will be returned at the end of a permitted period overseas (particularly a longer period) if the travelling parent changes their mind and refuses to return the children.
[163] Mr Guest submitted these examples showed fundamental errors in the Judge’s approach, which appear to be based on the enforcement of foreign court orders instead of (as required) proceeding on a “best interests of the child” basis.
[164] Following his introductory submissions, Mr Guest presented his submissions by reference to the points on appeal (above at [158]):
(a)Failing in respect of such discretion to exercise it in the best interests of the children, or even adequately assessing the best interests of the children
[165] Mr Guest accepted the Judge had assessed aspects of the children’s welfare and best interests in the early parts of the judgment but submitted the Judge did not bring those matters into account in relation to the exercise of the discretion to return.
(b)Elevating the importance of the Spanish Court order and the goals of the Hague Convention beyond the best interests of the children
[166] Mr Guest repeated the submission made in relation to the habitual residence issue, namely that the Judge had incorrectly placed great weight on the circumstances and basis on which the children came to New Zealand and in particular on the Spanish Order. Mr Guest adopted, in relation to the Judge’s exercise of the s 106 discussion, the submissions he had made (in the habitual residence context) as to the Judge being heavily and incorrectly influenced by the circumstances of the Spanish Order (above
at [103]). In his submission the Judge was inappropriately concerned about the enforcement of foreign court orders when his focus ought to have been on the best interests of the children.
[167] Mr Guest referred to the Court of Appeal’s explanation in LRR v COL (above at [30]) that the interests of the child are at the forefront of the whole exercise (under the Convention). Mr Guest noted that the Judge had quoted this discussion by the Court of Appeal but, in his submission, the Judge did not take the dictum into account in reaching the decision to order a return.
[168] Mr Guest took issue with the Judge describing the majority decision in HJ as the “leading authority” on the exercise of the s 106 discretion. He submitted that HJ is “now out of date as to the exercise of the discretion” and that LRR v COL should be considered in its place — he stated “a plain position now is to concentrate on the welfare of the child or children, not deterring future abductions or attentions”.
(c)Failing to give adequate weight to the views of the children as expressed through their lawyer, as required under the Care of Children Act 2023 and the United Nations Convention on the Rights of the Child
[169] Mr Guest described Andrew and Sophia as “mature children”. He submitted the Judge had been incorrect to “put to one side” clearly expressed views held for good reasons by those mature children for reasons entirely unrelated to them (namely the movement of children internationally).
(d)Disregarding the evidence that the Appellant would be unable to return to live in Spain
[170] Mr Guest indicated this ground of appeal was poorly worded as the Judge had expressly accepted that Mr McDonald would be unable to return to live in Spain. Mr Guest identified the intended ground as being that the Judge did not adequately take that situation into account in the exercise of his discretion.
(e)Failing to give proper weight to the potential psychological implications for the children if ordered to return
[171] Mr Guest identified the Judge had accepted, as a matter of commonsense, that returning the children to Spain would present a challenging and an unsettling time for them. Mr Guest submitted the Judge had failed to give any identifiable weight to that consideration, instead allowing his considerations to be dominated by factors concerning the children travelling internationally and the Convention.
(f)Failing to take into account whether any assessment of the best interests of the children would be better carried out in New Zealand or in Spain
[172] Mr Guest submitted the evidence about the “here and now” of the children’s lives indicates it is almost certain the Family Court at Queenstown would be in a much better position than the court in Spain to determine where the children should live.
(g)Taking into account recent physical contact between the children and the Respondent (paragraphs [217] to [219]) when:
(i)Such contact was irrelevant, even on the exercise of a discretion, to the return of the children to Spain;
(ii)The parties had contemplated the Respondent living in New Zealand, and it was the Respondent’s choice to live in Australia;
(iii)A return of the children to Spain would bring about an even more pronounced dislocation between the Appellant and the children than any dislocation between the respondent and the children.
[173] Mr Guest referred to the Judge’s observation [above at [86](c)] that Ms Sanchez, during the period the children had been in New Zealand, has had no meaningful role in their day-to-day care and only limited physical contact with them. Mr Guest described the Judge as thereby misleading himself with an irrelevant consideration on contact. Mr Guest noted it had initially been envisaged that Ms Sanchez would be in New Zealand while the children were here. Mr Guest submitted it was wrong for the Judge to weigh the limited contact in his assessment because:
(a)there was no sufficient evidence as to what actually happened and the reasons for limited contact;
(b)if (which Mr McDonald denied) he had impeded physical contact, it was an incorrect response to force the children back to Spain in order to punish him;
(c)returning to Spain would effectively reverse the situation, with Mr McDonald having no contact;
(d)the Judge took no account of the possibility that Ms Sanchez had contributed to the difficulties of physical contact.
[174] Mr Guest emphasised that Ms Sanchez is a New Zealand citizen who can live and work here and that, while living in Sydney there is a better possibility of physical contact between parent and children than (for Mr McDonald) if the children are returned to Spain.
(h)Placing weight on the shared care arrangement in Spain up until the last travel to New Zealand in November 2021 in the actual circumstances in which there was no possible return to such arrangement
[175] Mr Guest referred to the Judge’s acceptance that Mr McDonald cannot return to Spain to work and live. Mr Guest submitted that, in that circumstance, the Judge was incorrect to place any weight on the historic shared care arrangement.
Submissions: lawyer for the children
[176] For the children, Mr van Bohemen supported Mr McDonald’s appeal. He submitted:
(a)the Judge had incorrectly stated the law in relation to the exercise of the s 106 discretion;
(b)the Judge took into account irrelevant considerations;
(c)the Judge failed to take into account relevant considerations;
(d)the judgment was accordingly wrong; and
(e)this Court should exercise its discretion by quashing the order for return.
[177] Mr van Bohemen reflected Mr Guest’s submissions as to the (obiter) observations of Blanchard, Tipping and Andersen JJ in HJ being no longer good law in relation to the proposition that, where a s 106 exception is made out, it may nonetheless be appropriate to exercise the discretion in favour of an order for return in order to deter further abductions. In particular, Mr Guest referred to the Court of Appeal’s judgment in LRR v COL, where the Court expressed some “reservations about the suggestion” and expressed an attraction for the different view expressed in HJ by Elias CJ to the effect that, in that situation, the discretion mut be exercised in the best interests of the child having regard to the circumstances that established the exception.55
[178] The thrust of Mr van Bohemen’s submission was that the interests of deterrence are irrelevant where the welfare and best interests of children will be served by their remaining in the new country until the dispute is resolved.
[179] Given that legal position, Mr van Bohemen submitted the Judge had taken irrelevant considerations into account, by referring to the interests of comity (as between the Spanish and New Zealand courts) and the desirability of parents being able to make arrangements for children’s travel to a parent’s home country with assurance the children will be returned.
[180] Mr Guest submitted further that the Judge failed to take into account six relevant considerations:
(a)the need for the children to have continuity in their care, development and upbringing under s 5(d) of the Act;
(b)the New Zealand Court being better placed to assess the best long term care arrangements for the children;
55 Mr van Bohemen referred also to Andrews v Buckley [2023] NZHC 2372 at [104] and [125]; and
Andersen v Lewis, above n 4, at [144].
(c)the interests of the children’s wellbeing through feeling socially included in New Zealand (and not in Spain);
(d)the prospect of disruption to the children’s sense of social inclusion if returned;
(e)the disempowerment the children will suffer through a decision contrary to their views; and
(f)the prospect the children may become biased against their mother if returned to Spain.
[181] Mr van Bohemen referred to this Court’s decision in Andrews v Buckley where, having regard to psychological evidence, the Judge concluded there was a likelihood of psychological risk for the child (a 12-year-old) if returned to Australia. Mr van Bohemen submitted that, logically, the same risks apply in this case to the children. Mr van Bohemen concluded by submitting the appeal should be granted so as to “give effect to the children’s objections”.
Submissions: respondent
[182] Ms Blackford submitted the Judge had correctly exercised his discretion in not refusing to make an order for return.
[183] Ms Blackford submitted the exercise of a discretion will be informed by differing considerations, depending on the s 106(1) exception that is established – for instance, where the grave risk offence is established, the subjective interests of the child will be of such a magnitude that it is hard to imagine policy considerations outweighing them.56
[184] For the range of considerations that may be relevant, Ms Blackford referred in particular:
56 Referring to the situation in LRR v COL, above n 8.
(a)the decision of the majority in HJ, which recognises the relevance of the legislative purpose, namely that the power to return a child in circumstances covered by s 106(1) is intended to be exercised in the context of the Convention, having regard in particular to what would give effect to the Convention’s purposes;57 and
(b)as observed by Lady Hale in Re M, the child’s views are properly matters for consideration – that does not mean those views are always determinative or even presumptively so. The older the child, the greater the weight their objections are likely to carry. But that is far from saying the child’s subjections should only prevail in the most exceptional circumstances.58
[185] Ms Blackford submitted it was important, in the context of the exercise of the discretion, that the Judge had unequivocally found there to be no evidence that the return of the children to Spain would be deeply traumatising or give rise to a grave risk of psychological harm and found the grave risk exception was therefore not established.
[186] Ms Blackford submitted the Judge was also correct, in that particular context, in having regard to the Convention’s purposes viewed in light of arrangements entered into, in accordance with the Spanish order, for the children to travel to New Zealand.
[187] In Ms Blackford’s submission, the exercise of the discretion in this case weighed heavily in favour of an order for return.
[188]Ms Blackford submitted, in relation to Mr McDonald’s points on appeal:
(a)the Judge had clearly had regard to the welfare and best interests of the children as “forefront” considerations (as identified in LRR v COL). The Judge identified the extent to which the important relationship
57 HJ, above n 27, at [136].
58 Re M (children) (abduction: rights of custody) [2007] UKHL 55, [2008] 1 AC 1288 at [46].
between the children and their mother had been and was continuing to be very limited while the children were in New Zealand;
(b)The Judge identified the Spanish order as important in the context of the settled intention of the parents, as must have been communicated to the children, but equally recognised the Spanish order did not bind the New Zealand Family Court or impact its jurisdiction;
(c)the Judge, far from disregarding the views of the children as expressed through their lawyer, had clearly identified their objections, including by reference to large portions of Mr van Bohemen’s reports;
(d)the Judge expressly had regard to the difficulties Mr McDonald would have in returning to Spain and re-establishing himself there – that was taken into account alongside the fact that the children, upon return to Spain, would have their mother available again as a safe caregiver;
(e)the Judge had not disregarded “potential psychological implications” for the children if returned but had identified and weighed impacts on their “happiness” in light of their objections to returning and their comparative assessments of life in New Zealand and in Spain. Ms Blackford described the children’s current approaches as “unremarkable and mundane”, and matters which, in any event, properly form part of the Judge’s deliberations;
(f)Ms Blackford rejected the submission that the Spanish Court is less well equipped than a New Zealand Court to assess the children’s best interests. The Spanish Court has precisely done so previously and Mr McDonald had sufficient trust and confidence in the Spanish justice system to make applications there, both to bring the children to New Zealand and subsequently to approve his continued retention of the children in New Zealand. Ms Blackford identified that what is involved is a question of form – she submitted the Judge had correctly focused on the children’s place of residence at the time of wrongful detention.
(g)Ms Blackford submitted the Judge had regard to the minimal level of contact between Ms Sanchez and the children while they have been in New Zealand as the maintenance of a relationship with both parents is clearly in the best interests and welfare of the children. In any event, the Spanish order was framed not on the basis that Ms Sanchez would live in New Zealand while the children were staying here but, rather, that she might wish to and be able to visit the children in New Zealand with advance notice to Mr McDonald.
(h)Ms Blackford submitted the Judge had not erred in placing weight on the fact that a shared-care arrangement had been in place in Spain – that consideration was in the context of Mr Guest’s submissions relating to habitual residence. It was not directed to the subsequent exercise of the discretion which occupied a later (eight page) portion of the judgment.
[189] Finally, Ms Blackford addressed suggestions advanced on the appeal to the effect that it was unlikely Ms Sanchez would be returning to Spain and that the future prospect for the children involved their mother living in Australia. Ms Blackford noted the clear evidence from Ms Sanchez has been that she is “waiting in Australia”, a place in which she was able to obtain work in her specialised area, and that Australia is not the place she intends to live in or permanently relocate to.
[190] In conclusion, Ms Blackford submitted the welfare and best interests of the children was and is best served by an order for their return to Spain without delay.
Analysis
[191] At the risk of doing a disservice to the Judge’s detailed reasoning, I will endeavour to isolate the key considerations that led the Judge to exercise his s 106(1) discretion against refusing to make an order for return under s 105 of the Act.
[192]The Judge identified:
(a)the appropriate forum is to be considered having regard to potentially but not necessarily competing considerations, namely the welfare and
best interests of the children and the deterrence purpose of the Convention;
(b)the weighting of competing considerations will vary according to the s 106 exception established;
(c)the children’s objections to return to Spain are to be given weight given their age and degree of maturity;
(d)the children’s integration into New Zealand means remaining in New Zealand would be less disruptive for them and returning to Spain would be a major change for them and challenging. It was not established their return would be deeply traumatising or give rise to a grave risk of psychological harm;
(e)the promotion of the children’s relationship with both parents, for the purpose of their welfare and best interest, has occurred more meaningfully in Spain than in New Zealand;
(f)their mother has been largely physically absent from their lives while in New Zealand, and there are accordingly concerns for the children’s welfare and best interests if they remain in New Zealand;
(g)the principles of the Convention, providing for their home country to be the forum for decisions on substantive care and conduct, recognise it is generally in children’s interests not to be unilaterally removed by one parent;
(h)the objectives of the Convention also favour certainty of return in a case such as this, where (after five years of living in Spain) the children came to New Zealand on a time-limited specific base in accordance with a clearly defined, formal court order.
(i)courts could have little confidence in children being returned after permitted overseas travel if an order for return is not made in the present
circumstances, with the result that longer periods overseas would become “too risky” for courts to sanction and children would be denied the opportunity to have time with family members;
(j)beyond general Convention principles, respect for the decisions of a foreign country (comity) also favour an order for return.
[193] There is no basis, on a proper reading of the Judgment, to infer the Judge dealt with the consideration of the children’s welfare and best interests as a consideration not at the “forefront” of the exercise — the Judge expressly referred to the Court of Appeal’s observation in LRR v COL to that effect. The Judge then focused specifically, for the next full three pages, on the welfare and best interests of the children.
[194] In my view, and contrary to Mr Guest’s submission, the Judge very carefully considered the welfare and best interests of the children. His earlier analysis of their objections (having regard to their age and degree of maturity) fully identified the basis of their objections. Those were the objections not of (as Mr Guest described them) “mature” children but rather of what might be described as still relatively young children. It was unsurprising that children who had left Spain in the context of COVID-19 restrictions to enjoy the environment of their New Zealand residence and New Zealand family, schooling and recreational opportunities, would have expressed a strong preference for New Zealand when interviewed by Mr van Bohemen in August 2023. Against the immediacy of those experiences, the Judge was correct to focus also on the quality of the children’s experience for their five years’ residence in Spain, including the quality of relationship with their mother. The Judge was entitled, having regard to the ages of the children and the extent of evidence as to the preferences and concerns, to find their adjustment back to living in Spain would be achievable and consistent with their welfare and best interests. It would also, very importantly in their welfare and best interests, restore their regular physical contact with their mother after they had had minimal physical contact with her not only for their intended 12-month stay in New Zealand but also through to the Family Court hearing in September 2023 and the delivery of judgment in November 2023. In the context of a discretion decision primarily about forum, the decision to order return meant the important relationship between mother and children could fully recommence, at least for a period
until the Spanish court finally determined issues relating to the children. Were the children not to return to Spain now, their period of effective physical separation from their mother would be likely to extend to at least three years (commencing November 2021).
[195] The Judge correctly placed no weight on Mr McDonald’s assertions that Ms Sanchez’s residence in Sydney, Australia should be taken into account in the exercise of the s 106 discretion. There was no basis to doubt Ms Sanchez’s evidence that her intention was to return to Spain to resume her permanent residence there. Her relocation to this part of the world while her children were living in New Zealand was clearly (in their best interests as well as hers) an expedient to retain her relationship with them while they had their year in New Zealand.
[196] The Judge correctly placed no weight on the proposition that a New Zealand court would assess the best interests of the children better than a Spanish court.
[197] In my view, the Judge’s assessment of the welfare and best interests of the children of itself led properly to the conclusion the s 106 discretion should be exercised against refusing to make an order under s 105.
[198] It was only after those welfare and best interests considerations that the Judge turned to consider the principles under the Convention.
[199] I did not understand either Mr Guest or Mr van Bohemen to suggest that what the Judge then identified as “general Convention principles” were not correctly identified. The very purpose of the provisions in the Act relating to international child abduction is to implement in New Zealand law the Convention.59
[200] As I understood the submissions in support of the appeal, the criticism was not of the Judge’s description of the objects and principles of the Convention but involved the proposition (relying on observations in LRR v COL) that the Judge had in some way elevated the importance of the Spanish order and the objects of the Convention beyond the best interests of the children.
59 Care of Children Act 2004, s 94.
[201]There are two responses to that submission.
[202] First, there is a fundamentally important difference between a case such as this, where the relevant s 106(1) exception involves the objections of children aged 13 and 11 years, and the fact situation in LRR v COL where it was established there was a grave risk the child’s return to Australia would place him in an intolerable situation. The father in LRR v COL faced charges of assault and breach of family violence orders, and had since been convicted on a number of those charges). Nothing in the Court of Appeal’s observations in LRR v COL addressed to the latter situation required the Judge in the quite different factual circumstances of this case to disregard or place little weight on broader Convention principles.
[203] Secondly, the Judge’s analysis was grounded in a consideration of the welfare and best interests of the children. The Judge’s consideration of Convention principles and objects reinforced the earlier part of his analysis. It did not elevate Convention principles or considerations to a level that cut across the children’s welfare and best interests. In that regard it is properly viewed as complementing the primary focus on welfare and interests.
[204] I am not satisfied the Judge, in exercising his discretion, relied on a wrong principle, took into account irrelevant matters, failed to take relevant matters into account, or was plainly wrong.
Outcome
[205]The appeal is dismissed.
[206] The proceedings are remitted to the Family Court for the immediate convening of a case management conference to consider implementation of the order for return and any further steps required in the proceedings.
[207] Costs are reserved. In the event the parties are unable to agree on costs the issue will be determined on the papers. I direct:
(a)any applicant for costs is to file and serve a memorandum (four-page limit) by 16 August 2024;
(b)the respondent is to file and serve their memorandum (same limit) by
23 August 2024.
Osborne J
Solicitors:
Solomons, Solicitors, Dunedin for Appellant
Copy to: I M Blackford and J Gandy, Barristers, Auckland for Respondent Mr S van Bohemen, Barrister, Christchurch, Lawyer for Child
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